Bills Digest No. 167  1998-99 Criminal Code Amendment (Slavery and Sexual Servitude) Bill 1999


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Criminal Code Amendment (Slavery and Sexual Servitude) Bill 1999

Date Introduced: 24 March 1999

House: Senate

Portfolio: Justice and Customs

Commencement: Twenty-eight days after Royal Assent

 

Purpose

To create offences of slavery and sexual servitude, provide for penalties and repeal a number of old Imperial Acts currently in force in Australia relating to slavery.

Background

The need for the Bill

At present, a number of 19th century Imperial Acts-most importantly, the Slave Trade Act 1824-almost certainly represent the law in Australia about slavery.(1) In general these Acts apply in Australia by reason of paramount force.(2) No Australian Parliament has enacted laws which criminalise slavery.

The Imperial statutes were enacted by the British Parliament to punish those involved in the slave trade and to declare slaves and their children to be free. They were principally enacted in response to the slave trade in which African people were forcibly taken to work in the plantations of North America. In 1990, the Australian Law Reform Commission made the following comments about those Imperial statutes:

The fact that this area of substantive Australian criminal law is regulated by 19th century Imperial enactments itself demonstrates the need for change. While the application of those enactments in Australia is less obscure than in the case of piracy, their language is archaic and a number of their provisions relate to circumstances and institutions that have either changed or long since fallen into disuse. More importantly, the appropriate punishments for the offences they create are now uncertain. Australia's international obligations require the trade in slaves to be an offence. Accordingly, these complex Imperial Acts with their uncertain punishments should be replaced with modern and concise Australian statutory offences.(3)

Thus, reasons for the Bill's introduction include the need to modernise Australian law and ensure that penalty provisions are effective. The Second Reading Speech identifies another objective of the proposed legislation. This is to deter:

... the growing and highly lucrative international trade in people for the purposes of sexual exploitation. ... Intelligence from Australian and overseas sources confirms that the problem is a significant one for Australia. In August 1997 the AFP reported that in the previous 18 months it had received information of fourteen possible cases in this country. The NCA has also reported that it is aware of 8 possible cases over the period from December 1992 to November 1996. Those cases involved 25 women, one of whom was allegedly a 13 year old girl brought to this country from Thailand to work as a prostitute to repay her father's debt.(4)

This Bill is based on work done by the Model Criminal Code Officers Committee (MCCOC).(5) As part of the Model Criminal Code project, MCCOC was asked by the Standing Committee of Attorneys-General to examine a Commonwealth proposal to enact laws dealing with slavery and sexual servitude. In April 1998 MCCOC released a discussion paper dealing with these issues. In November 1998 it published a Final Report.(6)

The Bill is the Commonwealth component of a proposed package of uniform laws on slavery and sexual servitude at Commonwealth, State and Territory level.

Constitutional issues

Under the Commonwealth Constitution, the Commonwealth can make laws in respect of specific matters. Many of these matters are listed in section 51 of the Constitution. The Bill creates offences and penalties. There is no criminal head of power in the Constitution and while the Commonwealth can and does make criminal laws,(7) these matters are traditionally regarded as the province of the States and Territories.

The Commonwealth's power to enact slavery and sexual servitude legislation is most likely to be found in section 51(xxix) of the Constitution. This power-the external affairs power-enables the Parliament to legislatively implement Australia's international agreements regardless of the subject matter of those agreements.(8) It also supports laws with respect to matters physically external to Australia and may extend to compliance with the recommendations of international agencies and the pursuit of international objectives which have not been reduced to binding obligations.(9)

Australia is a party to a number of international conventions which outlaw the slave trade. The most important of these are the International Convention to Suppress the Slave Trade and Slavery, its 1953 Protocol and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery.(10) Also relevant are Australia's international obligations under general human rights instruments such as the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Discrimination Against Women and the International Convention on the Rights of the Child.

Insofar as the Bill's provisions outlawing and penalising slavery rely on Australia's international treaty obligations they must be appropriate and adapted to the purpose of implementing the relevant treaties.(11)

The Bill also covers sexual servitude. The MCOCC Report comments:

... while international law and conventions are clear on their prohibition of chattel slavery and the like, and hence the Commonwealth mandate is also quite clear, less certainty is involved in the coverage of slave like conditions amounting to servitude. Bassiouni comments (at 459):

"The primary reason for these still prevalent manifestations of slavery and related practices is that the basic legal element in international instruments on slavery is the total physical control by one person over another. Whenever the control is less than total, such as when it is partial or limited in time, it is removed from the system of protections developed by these international instruments."(12)

Section 51(xxix) of the Constitution may also be relevant because the Bill deals with matters geographically external to Australia. In Polyukhovich v. Commonwealth(13) the High Court held that amendments to the War Crimes Act 1945 (Cwlth) which enabled Australian courts to punish as war crimes certain conduct which occurred outside Australia during World War II were constitutionally valid. A majority of the Court suggested that 'externality' alone can enliven the external affairs power.(14) This view was affirmed by a five-member High Court judgment in Victoria v. Commonwealth where it was said that this interpretation 'must now be taken as representing the view of the Court.'(15)

A further argument which might be used to support the Bill is that the external affairs power applies because international law recognises a 'universal jurisdiction' to prosecute perpetrators of international crimes. International crimes have been conceptualised as peremptory norms of international law against which no derogation is permitted by a State, regardless of the doctrine of State sovereignty. The International Law Commission has indicated that settled rules of international law provide that trade in slaves is such a peremptory norm.

The concept of a 'universal jurisdiction' has not been considered to any great extent by the High Court. In Polyukhovich, Brennan J concluded that a 'universal jurisdiction' existed to try suspected war criminals irrespective of whether a State was under an obligation to do so and irrespective of whether any international concern exists that a State should do so. However, in relation to the amendments to the War Crimes Act 1945 he found that they lacked conformity to international law and so were invalid. Toohey J in the same case held that the amendments were supported by the external affairs power as an exercise of 'universal jurisdiction' as well as on the ground of 'externality.'(16) Assuming that the Commonwealth has a 'universal jurisdiction' it might be necessary to show that slavery and sexual servitude were international crimes and that the relevant provisions in the Bill conformed to international law.

The Criminal Code Amendment (Slavery and Sexual Servitude) Bill 1998 and the present Bill

In 1998, the Government introduced a Criminal Code Amendment (Slavery and Sexual Servitude) Bill 1998 based on a Discussion Paper produced by MCCOC in April 1998. That Bill lapsed when the 1998 General Election was called.

There are differences between the 1998 Bill and the present Bill. In particular, recklessness has been added as a fault element to sexual servitude offences, penalties have been increased, the definitions of slavery offences and sexual servitude offences have been altered, a jurisdictional requirement has been added and there is provision for aggravated offences. These differences appear to reflect changes recommended in MCCOC's November 1998 Report which was produced following a consultative process.

Main Provisions

Schedule 1-Criminal Code Act 1995

Schedule 1 of the Bill inserts new Chapter 8-Offences against humanity into the Criminal Code. New Division 270 is headed 'Slavery, sexual servitude and deceptive recruiting.'

Clause 270.1 inserts a definition of 'slavery.' In brief, 'slavery' is defined as occurring when ownership powers are exercised over a person. Importantly, the definition allows for the circumstance in which ownership rights are exercised as a result of a debt or contract made by the enslaved person.

Clause 270.2 provides that slavery continues to be unlawful and abolished despite the fact that the Act will repeal Imperial Acts relating to slavery. This provision was inserted to ensure that slavery is abolished for all purposes-not just the purposes of the criminal law.(17)

Clause 270.3(1) defines the offence of slavery as occurring when a person intentionally possesses, or exercises powers of ownership over, a slave or engages in slave trading-irrespective of whether the person engages in that conduct inside or outside Australia. The maximum penalty is 25 years imprisonment. Under the Crimes Act 1914 (Cwlth), a formula is provided to enable a court, where appropriate, to convert a penalty of imprisonment to a pecuniary penalty or to a combination of a pecuniary penalty and a term of imprisonment.(18)

'Slave trading' is defined in subclause 270.3(2) to include capturing a person in order to make them a slave, purchasing or selling slaves, commercial transactions involving slaves and directing or financing such activities.

Clause 270.4 defines the expression 'sexual servitude.' 'Sexual servitude' occurs when a person provides sexual services and, because of force or threats, is not free to cease providing those services or leave the place where they provide those services. 'Threat' includes a threat to cause a person's deportation [paragraph 270.4(2)(b)].

Clause 270.5 inserts jurisdictional requirements. There are two circumstances in which a sexual servitude offence will be caught by the legislation. The first is that the conduct constituting the offence is committed to some degree outside Australia and the relevant sexual services are provided to some extent within Australia. The second is that the proscribed conduct occurs to some extent inside Australia and the sexual service occurs to some extent outside Australia.

Clause 270.6 defines offences of sexual servitude. Subclause 270.6(1) provides that a person who intentionally or recklessly causes a person to enter or remain in sexual servitude is guilty of an offence. The maximum penalty in the case of an aggravated offence is 19 years imprisonment. In any other case the maximum penalty is 15 years imprisonment. Subclause 270.6(2) provides that a person who conducts a business that involves sexual servitude and who knows or is reckless about that sexual servitude is guilty of an offence. The expression 'conducting a business' encompasses managing, directing, controlling or financing the business. The penalties are the same as those in subclause 270.6(1).

Clause 270.7 creates an offence relating to deceptive recruiting for sexual services and provides that the penalty is a maximum of 9 years imprisonment in the case of an aggravated offence and 7 years imprisonment in any other case.

Clause 270.8 provides that an offence will be an aggravated offence if committed against a person who is under 18 years of age.

Clause 270.10 provides that offences of slavery and sexual servitude can be committed irrespective of whether the defendant is an Australian citizen or resident.

Clause 270.11 mandates that the Attorney-General's consent must be obtained before certain proceedings can be instituted-in particular where any part of the alleged conduct occurred outside Australia and the alleged offender is not an Australian citizen, resident or corporation. However, a person can be arrested, charged or remanded before the Attorney-General's consent is obtained.

Clause 270.12 provides that the legislation does not exclude the operation of other Commonwealth laws or State or Territory laws.

Clause 270.13 provides that a person cannot be convicted of an offence under the legislation if they have been either convicted or acquitted in an overseas jurisdiction.

Schedule 2-Repeal of Imperial Acts

Schedule 2 of the Bill repeals the Imperial laws or provisions of Imperial laws that are listed.

Concluding Comments

Jurisdiction

Under the Bill a slavery offence can be committed irrespective of whether it occurs inside or outside Australia. A different approach is taken to sexual servitude and recruiting offences. In relation to these offences, either the proscribed conduct must occur to some extent outside Australia and the sexual services must be provided to some extent inside Australia, or the proscribed conduct must occur to some extent inside Australia and the sexual services be provided to some extent outside Australia. Other permutations can readily be imagined. For example, an Australian citizen or resident may trade people to work in conditions of sexual servitude and this conduct and the provision of the sexual services may take place entirely overseas. The Bill does not cover such a circumstance.

In common law jurisdictions such as Australia, criminal law usually has a territorial basis. However, it is possible to legislate on the basis of nationality. For example, under Part IIIA of the Crimes Act 1914 (Cwlth)(19) Australian citizens and residents (whether natural or corporate) are prohibited from engaging in sexual activities with children outside Australia.

The question thus arises whether it would be appropriate to criminalise conduct involving sexual servitude where there is no territorial nexus with Australia but where the perpetrator is an Australian citizen or resident.

It is also possible that perpetrators of sexual servitude offences may operate entirely within Australia and the sexual services provided by their victims are provided wholly within Australia. In this case, the Second Reading Speech indicates that the States and Territories will pass appropriate laws.(20)

The fault element in slavery offences

Slavery offences as defined in clause 270.3 require intention as their fault element. Assuming it would be otherwise within power, the question arises whether it would be useful to include an offence of recklessly engaging in slave trading. In contrast to clause 270.3, intention or recklessness are the fault elements of sexual servitude offences. Under the Criminal Code a person is reckless about a circumstance or result if they are aware of a substantial risk that the circumstance exists or a result will occur and it is unjustifiable to take the risk.(21) Penalties for a slavery offence involving recklessness would need to be adjusted accordingly.

The scope of sexual servitude

Workers held in sexual servitude may be forced to provide unsafe sex to their clients. Their health and life may thus be put at serious risk as a result of the transmission of diseases such as HIV/AIDS, hepatitis C and syphilis. The Minister's Second Reading Speech comments:

Many [recruits] are not free to reject a client or to determine the conditions on which they service them. Unsafe sexual practices are regularly imposed on them and as a consequence they live under the constant fear of contracting HIV and other sexually transmitted diseases.

The definition of 'sexual servitude' contained in the Bill restricts it to circumstances where, as a result of force or threats, the person providing sexual services is not free to stop providing those sexual services or leave their place of work. The question arises whether the legislation should also provide that sexual servitude occurs when, due to force or threats, a person supplying sexual services is not free to decline sexual services sought in an unreasonable manner. The MCCOC Report commented, in relation to its own recommendations, that:

It was ... decided to remove from the definition [of sexual servitude] the mention of being free to decline to provide services to a particular person or persons. The Committee is concerned that such a serious offence should not apply where someone is happy to provide sexual services, is free to leave, is not beaten or subject to other force; but simply refuses to kiss any clients. It should not be the case that an employer who threatens to sack the person on that basis should be able to be charged with the sexual servitude offence. While there are more serious issues, such as the policy in relation to condoms, the object of these offences is to regulate servitude, not prostitution.(22)

On the other hand, it could be argued that, adequately defined, sexual servitude includes the situation where a person as a result of force or threats is not free to determine the manner in which they provide sexual services. On this basis, the alteration suggested above would satisfy the objective of regulating servitude.

A further issue arises in relation to the freedom of movement of persons in sexual servitude. The Second Reading Speech states:

... once in Australia recruits are often placed under heavy security and their movements strictly controlled. Those that are fortunate enough to live away from the brothel premises frequently find that they are driven by guards to and from work and are not free to go elsewhere.

The definition of 'sexual servitude' contained in the Bill refers to a person not being free to leave the place or area where the person provides sexual services. It is arguable that this definition does not cover the situation where the person's movements are severely restricted outside of the place or area where they provide sexual services.

Treatment of people subjected to slavery or sexual servitude offences

The victims of crimes of slavery or sexual servitude are generally dealt with by Australian authorities as unlawful non-citizens, whom the Department of Immigration and Multicultural Affairs are required to detain and remove from Australia as soon as reasonably practicable. In certain circumstances, such a victim may receive a 'criminal justice visitor visa', which permits a person to remain in Australia when they are required for the administration of criminal justice.

The MCCOC Report states that a number of submissions argued that the Committee should make recommendations about the treatment of victims of these crimes, particularly in relation to their immigration and refugee status. In the Committee's view, these issues went well beyond their terms of reference.

Regardless of the Committee's terms of reference, it is open to Parliament to consider these issues. As noted in the Second Reading Speech, trafficking for the purposes of sexual exploitation is a serious violation of fundamental human rights. There is an inextricable nexus between legislating against the crimes of slavery and sexual servitude and implementing measures to protect human rights. From this public policy perspective, the protection of human rights is the rationale for the legislation.

International documents have elaborated upon State responsibilities in relation to this nexus. For example, the United Nations' General Assembly's 1993 Declaration on the Elimination of Violence Against Women (DEVAW) provides that as well as developing mechanisms to punish perpetrators of violence, States should ensure that women subjected to violence are provided with just and effective remedies for the harm that they have suffered and ensure that women subjected to violence have specialised assistance to promote their safety and rehabilitation.

Consideration could be given, within the context of this Bill, to amending the Migration Act to provide a special status for people subjected to slavery and sexual servitude offences.

 

Endnotes

  1. See Australian Law Reform Commission, Criminal Admiralty Jurisdiction and Prize, AGPS, Canberra, 1990.

  2. English case law and statutes were applied to the Australian Colonies as far as they were applicable to local conditions. Deciding exactly what legislation was applicable depended in part on whether a law was ordinary English domestic legislation or whether it was legislation which applied by paramount force. Paramount force legislation is legislation with the colonies specifically in mind. See Morris, G et al Laying Down the Law, 3rd ed, Butterworths, Sydney, 1992.

  3. ALRC, op.cit, para.108.

  4. Senate Hansard, 24 March 1999, p.3076.

  5. In June 1990, the issue of a national model criminal code was put on the agenda of the Standing Committee of Attorneys-General (SCAG). A committee was then established consisting of officers from each Australian jurisdiction with expertise in criminal law and criminal justice. The committee is responsible for preparing discussion papers and reports to the SCAG on each chapter of the proposed model criminal code.

  6. Model Criminal Code Officers Committee, Chapter 9. Offences Against Humanity. Slavery. Report, November 1998.

  7. For example, using the express incidental power or the implied incidental power.

  8. With the provisos that such laws do not offend express or implied constitutional guarantees, that the treaty relied on be genuine and bona fide and that the law must be a reasonable and appropriate means of giving effect to the treaty's object.

  9. Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, November 1995, Chapter 5.

  10. MCCOC, op.cit, p.4.

  11. Victoria v. Commonwealth (1996) 138 ALR 129.

  12. Page 15. The quotation is from Bassiouni, 'Enslavement as an international crime', (1991) 23 New York Journal of International Law & Politics, 445 at 459. The situation relating to international law and convention and sexual servitude was a reason given by MCCOC for State and Territory legislative involvement. Note that clause 270.12 of the Bill provides that State and Territory laws are not excluded or limited by the operation of the legislation.

  13. (1991) 172 CLR 501.

  14. Blackshield, T & Williams, G Australian Constitutional Law & Theory. Commentary & Materials, 2nd ed, Federation Press, Sydney, 1998.

  15. (1996) 187 CLR 416 at 485.

  16. (1991) 172 CLR 501 at 684.

  17. MCCOC, op.cit, p. 31.

  18. Section 4B, Crimes Act 1914.

  19. Inserted by the Crimes (Child Sex Tourism) Amendment Act 1994.

  20. Senate Hansard, 24 March 1999, p. 3078.

  21. Section 5.4.

  22. Page 33.

 

 

Contact Officer and Copyright Details

Jennifer Norberry and Krysti Guest
4 May 1999
Bills Digest Service
Information and Research Services

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ISSN 1328-8091
© Commonwealth of Australia 1999

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Published by the Department of the Parliamentary Library, 1999.

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