Footnotes

CHAPTER 1 - Introduction

[1]        Journals of the Senate, No. 92 – 19 June 2012, pp 2528-2529.

[2]        House of Representatives, Votes and Proceedings, No. 111 – 30 May 2012, p. 1521.

[3]        House of Representatives, Votes and Proceedings, No. 126 – 22 August 2012, p. 1729.

[4]        Journals of the Senate, No. 105 – 22 August 2012, p. 2856.

[5]        Explanatory Memorandum (EM), p. 1.

[6]        EM, p. 1.

[7]        The Hon Nicola Roxon MP, House Hansard, 30 May 2012, p. 6228.

[8]        Attorney-General's Department, Discussion Paper: Forced and Servile Marriage, November 2010, available at: http://www.ag.gov.au/Consultationsreformsandreviews/Pages/Archive/Consultationonforcedandservilemarriage.aspx (accessed 15 August 2012).

[9]        Attorney-General's Department, Discussion Paper: The Criminal Justice Response to Slavery and People Trafficking; Reparation; and Vulnerable Witness Protections, November 2010, (Attorney-General's Department's Discussion Paper on Slavery and People Trafficking), available at http://www.ag.gov.au/Consultationsreformsandreviews/Pages/TheCriminalJusticeresponsetoslaveryandpeopletraffickingreparationsandvulnerablewitnessprotections.aspx (accessed 15 August 2012).

[10]      Attorney-General's Department, Exposure Draft – Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012, available at: http://www.ag.gov.au/Peopletrafficking/Pages/Exposure-draft---legislative-amendments-to-Australia%27s-people-trafficking-and-slavery-offences.aspx (accessed 15 August 2012).

[11]      The information in this section is taken from the Attorney-General's Department's Discussion Paper on Slavery and People Trafficking, p. 7, and Anti-Slavery Australia, Submission 28,
pp 3-4.

[12]      Article 3(a).

[13]      For example: International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights;  International Labour Organisation Convention No. 29 on Forced or Compulsory Labour; International Labour Organisation Convention No. 105 on the Abolition of Forced Labour. For a discussion of these treaties see: Australian Chamber of Commerce and Industry, Submission 20, p. 4; Law Council of Australia, Submission 21, pp 7-8.

CHAPTER 2 - Key provisions of the Bill

[1]        Explanatory Memorandum, pp 1-2.

[2]        Item 7 of Schedule 1 of the Bill repeals the current heading – 'Division 270 – Slavery, sexual servitude and deceptive recruiting' – and replaces it with a new heading – 'Division 270 – Slavery and slavery-like conditions'.

[3]        'Deception' has a corresponding meaning, see section 18A of the Acts Interpretation Act 1901 (Cth).

[4]        See proposed new section 270.1A (Definitions for Division 270).

[5]        A victim is in a condition of servitude whether the coercion, threat or deception is used against the victim or another person (proposed new subsection 270.4(2)).

[6]        'Conducting a business' is defined in proposed new section 270.1A (Definitions for Division 270) to include: taking any part in the management of the business; and exercising control or direction over the business; and providing finance for the business.

[7]        Both the offences in proposed new section 270.5 have a penalty of imprisonment for 20 years in the case of an aggravated offence (proposed new section 270.8 deals with aggravated offences) or, for any other case, imprisonment for 15 years.

[8]        A victim is in a condition of forced labour whether the coercion, threat or deception is used against the victim or another person (proposed new subsection 270.6(2)).

[9]        Both of the offences in proposed new subsection 270.6A have a penalty of imprisonment for 12 years in the case of the aggravated offence, and imprisonment for nine years in any other case.

[10]      The marriage is a forced marriage whether the coercion, threat or deception is used against the victim or another person (subsection 270.7A(3)).

[11]      The penalty for the forced marriage offences is seven years imprisonment for an aggravated offence and four years imprisonment in any other case.

[12]      Proposed new subsection 270.10(2).

[13]      Proposed new section 270.11 is in Subdivision D – Offences against Division 270: general.

[14]      'Slavery' is defined in section 270.1 of the Criminal Code as 'the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such conditions result from a debt or contract made by the person'.

[15]      'Debt bondage' is defined in the Dictionary to the Criminal Code to mean the status or condition that arises from a pledge by a person of his or her personal services (or of the personal services of another person under his or her control) as security for a debt owed, or claimed to be owed, (including any debt incurred, or claimed to be incurred, after the pledge is given), by that person if: the debt owed or claimed to be owed is manifestly excessive; or the reasonable value of those services is not applied toward the liquidation of the debt or purported debt; or the length and nature of those services are not respectively limited and defined.

[16]      Apart from an offence of harbouring a victim under proposed new section 271.7F.

[17]      Proposed new Subdivision BA of Division 271 (item 38 of Schedule 1). The organ trafficking offences are punishable by 12 years imprisonment, and the aggravated offences of organ trafficking is punishable by 25 years imprisonment where the victim is under 18 years of age, or 20 years imprisonment in in any other case.

[18]      Proposed new section 271.9 (item 42 of Schedule 1). The aggravated offence of debt bondage is punishable by imprisonment for seven years.

[19]      Proposed new section 271.11A (item 48 of Schedule1).

[20]      Proposed new section 271.11B (item 48 of Schedule 1).

CHAPTER 3 - Key issues

[1]        See, for example: ACT Government, Submission 3, p. 1; Presbyterian Women's Association of Australia in New South Wales, Submission 6, p. 1; Migration Institute of Australia,
Submission 11, p. 2; Australian Catholic Religious Against Trafficking in Humans (ACRATH), Submission 12, p. 1; Project Futures, Submission 14, p. 4; Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 15, p. 3; Liberty Victoria, Submission 17, p. 1; Australian Association of Women Judges, Submission 22, p. 2; Ms Fiona McLeod SC, Law Council of Australia, Committee Hansard, 29 August 2012, pp 1-2; Associate Professor Jennifer Burn, Anti-Slavery Australia, Committee Hansard, 29 August 2012, p. 27. However, Scarlet Alliance strongly opposed the Bill, arguing that the 'likely negative impact on sex workers, particularly migrant sex workers, outweighs any perceived gains [from the] changes', Submission 13, p. 1.

[2]        Women's Legal Service Victoria, Submission 26, p. 1. The Australian Human Rights Commission, Submission 38, p. 2, described the Bill as a 'significant step in Australia meeting its obligations under human rights law'.

[3]        Proposed new section 270.4 (definition of servitude), proposed new section 270.6 (definition of forced labour), and proposed new section 270.7A (definition of forced marriage).

[4]        See, for example: Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 15, p. 3; Law Council of Australia, Submission 21, p. 10; Project Respect, Submission 25, p. 4.

[5]        See, for example: Women's Legal Centre (ACT and Region), Submission 4, p. 2, which suggested that the broad interpretation of coercion may lead to ambiguity, particularly in relation to the forced marriage offences.

[6]        Committee Hansard, 29 August 2012, p. 2.

[7]        Committee Hansard, 29 August 2012, p. 8.

[8]        Addendum to the Explanatory Memorandum (EM), p. 2.

[9]        Mr Anthony Coles, Attorney-General's Department, Committee Hansard, 29 August 2012, p. 40. The relevant evidence provisions in the Bill are proposed new sections 270.10 and 271.11A.

[10]      See, for example: Project Futures, Submission 14, p. 9; International Commission of Jurists Australia (ICJA), Submission 30, p. 4; National Council of Women of Australia, Submission 36, p. 3; Ms Allison Munro, Women's Legal Centre (ACT and Region), Committee Hansard, 29 August 2012, p. 9; Ms Gayatri Nair, Australian Lawyers for Human Rights, Committee Hansard, 29 August 2012, p. 18.

[11]      See, for example: Women's Legal Service Victoria, Submission 26, p. 2; Mr Gregory Jones, Submission 29, p. 2; ICJA, Submission 30, pp 4-5.

[12]      Submission 26, p. 2.

[13]      EM, p. 24.

[14]      Answer to question on notice, received 4 September 2012, p. 5.

[15]      Answer to question on notice, received 4 September 2012, pp 4-5.

[16]      See, for example: Slavery Links, Submission 27, p. 10; Ms Fiona David, Walk Free, Committee Hansard, 29 August 2012, p. 8.

[17]      Attorney-General's Department, Discussion Paper: Forced and Servile Marriage, November 2010, p. 3.

[18]      Submission 27, p. 10.

[19]      Committee Hansard, 29 August 2012, p. 8.

[20]      Submission 30, p. 5. See also: Attorney-General's Department, Discussion Paper: Forced and Servile Marriage, November 2010, p. 3.

[21]      EM, p. 25.

[22]      Answer to question on notice, received 4 September 2012, p. 11.

[23]      Answer to question on notice, received 4 September 2012, p. 11.

[24]      See, for example: Women's Legal Centre (ACT and Region), Submission 4, p. 4; Women's Legal Service Victoria, Submission 26, p. 3; Women's Legal Services NSW, Submission 31, pp 5-6; Women's Law Centre of WA, Submission 32, p. 2.

[25]      Women's Legal Centre (ACT and Region), Submission 4, p. 4.

[26]      Committee Hansard, 29 August 2012, pp 9-10.

[27]      Mr Anthony Coles, Attorney-General's Department, Committee Hansard, 29 August 2012, pp 32, 40.

[28]      Answer to question on notice, received 4 September 2012, p. 15.

[29]      Answer to question on notice, received 4 September 2012, p. 15.

[30]      Answer to question on notice, received 4 September 2012, p. 15.

[31]      See, for example: Uniting Church in Australian, Synod of Victoria and Tasmania, Submission 15, p. 3; Australian Lawyers Alliance, Submission 19, p. 5.

[32]      See, for example: International Commission of Jurists, Western Australian Branch, Submission 18, p. 4; Law Council of Australia, Submission 21, pp 12-13; ICJA, Submission 30, pp 3-4; Ms Fiona David, Walk Free, Committee Hansard, 29 August 2012, p. 8.

[33]      Submission 21, pp 12-13 and Submission 30, pp 3-4 respectively.

[34]      EM, p. 19 in relation to the definition of forced labour in proposed new section 270.6. See also: EM, pp 15-16 in relation to the definition of servitude which states that 'whether a person is "not free" in relation to the matters specified in the definition [of servitude] is intended to be an objective test. It is intended that the court consider whether a reasonable person of the same background and in the same circumstances would have been free to withdraw his or her labour or services or leave the workplace'.

[35]      EM, p. 16, in relation to the definition of servitude, and EM, p. 19 in relation to the definition of forced labour.

[36]      Answer to question on notice, received 4 September 2012, p. 6.

[37]      See, for example: ACRATH, Submission 12, p. 4; Uniting Church in Australian, Synod of Victoria and Tasmania, Submission 15, p. 3; Australian Lawyers Alliance, Submission 19, p. 5.

[38]      Submission 13, p. 4.

[39]      Submission 13, p. 4 (emphasis in original).

[40]      Submission 13, p. 4 quoting from EM, p. 31.

[41]      Submission 13, p. 4.

[42]      EM, p. 31.

[43]      Mr Anthony Coles, Attorney-General's Department, Committee Hansard, 29 August 2012, p. 32.

[44]      See, for example: Law Council of Australia, Submission 21, p. 4; Australian Lawyers for Human Rights, Submission 23, pp 3-4; Project Respect, Submission 25, p. 2.

[45]      See, for example: Scarlet Alliance, Submission 13, p. 6; Ms Fiona David, Walk Free, Committee Hansard, 29 August 2012, pp 8-9.

[46]      Submission 13, p. 6.

[47]      Committee Hansard, 29 August 2012, p. 21.

[48]      Answer to question on notice, received 7 September 2012, p. 7.

[49]      Answer to question on notice, received 7 September 2012, p. 7.

[50]      Committee Hansard, 29 August 2012, pp 8-9.

[51]      EM, p. 51. The EM, p. 51, also notes that the harbouring a victim offence is 'not intended to criminalise a person who unknowingly receives services from a victim, such as the client of a sex worker who is a victim of a trafficking or a trafficking-related offence'.

[52]      EM, p. 51.

[53]      Submission 7, p. 4. See also: Ms Jaala Hinchcliffe, Office of the Commonwealth Director of Public Prosecutions, Committee Hansard, 29 August 2012, p. 38.

[54]      See: Committee Hansard, 29 August 2012, p. 38.

[55]      Ms Jaala Hinchcliffe, Office of the Commonwealth Director of Public Prosecutions, Committee Hansard, 29 August 2012, p. 38. See also: Attorney-General's Department, Answer to question on notice, received 4 September 2012, p. 12.

[56]      ACRATH, Submission 12, pp 3-4; Law Council of Australia, Submission 21, p. 21; Project Respect, Submission 25, p. 4; ICJA, Submission 30, p. 7; Ms Rosemary Budavari, Law Council of Australia, Committee Hansard, 29 August 2012, p. 4; Ms Jemima Brewer, Australian Lawyers Alliance, Committee Hansard, 29 August 2012, p. 18.

[57]      Committee Hansard, 29 August 2012, p. 4. See also: Ms Jemima Brewer, Australian Lawyers Alliance, Committee Hansard, 29 August 2012, p. 18.

[58]      Submission 19, p. 14.

[59]      See, for example: ACRATH, Submission 12, p. 3; Law Council of Australia, Submission 21, p. 22; Australian Lawyers for Human Rights, Submission 23, p. 6.

[60]      See also: Law Council of Australia, Submission 21, p. 22.

[61]      Submission 12, p. 3.

[62]      Submission 12, p. 3.

[63]      Committee Hansard, 29 August 2012, p. 27. See also: Ms Jemima Brewer, Australian Lawyers Alliance, Committee Hansard, 29 August 2012, p. 18; Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 15, Appendix, pp 7-9; Law Council of Australia, Submission 21¸ pp 23-26.

[64]      See, for example: Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 15, p. 4; Law Council of Australia, Submission 21¸ p. 20; Anti-Slavery Australia, Submission 28, p. 9.

[65]      Article 6.6 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol).

[66]      Article 2.3 of the International Covenant on Civil and Political Rights.

[67]      Anti-Slavery Australia, Submission 28, p. 9. See also: Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 15, p. 4, which stated that 'Australia has failed to provide direct avenues for survivors to pursue compensation'.

[68]      See, for example: Law Council of Australia, Submission 21, p. 23; Project Respect, Submission 25, p. 2; Anti-Slavery Australia, Submission 28, p. 9; ICJA, Submission 30, p. 8.

[69]      Law Council of Australia, Submission 21, p. 23; Anti-Slavery Australia, Submission 28, p. 9. See also: United Nations Human Rights Council, Report of the Special Rapporteur on trafficking in person, especially women and children on her Mission to Australia (17-30 November 2011), 18 May 2012, p. 21, available at: http://www.ohchr.org/EN/Issues/Trafficking/Pages/Visits.aspx (accessed 20 August 2012).

[70]      EM, p. 64.

[71]      Answer to question on notice, received 4 September 2012, pp 15-16.

[72]      Mr Anthony Coles, Attorney-General's Department, Committee Hansard, 29 August 2012, pp 31 and 34.

[73]      Australian Lawyers Alliance, Submission 19, pp 17-18.

[74]      Attorney-General's Department, Discussion Paper: The Criminal Justice Response to Slavery and People Trafficking; Reparation; and Vulnerable Witness Protections, November 2010, p. 3.

[75]      Except where otherwise indicated, the information on the People Trafficking Visa Framework (Visa Framework) and the Support for Victims of People Trafficking Program (Support Program) is taken directly from: Australian Government, Trafficking in Persons: The Australian Government Response 1 July 2010-30 June 2011, Third Report of the Anti-People Trafficking Interdepartmental Committee, pp 28-30.

[76]      Anti-Slavery Australia, Supplementary Submission 28, p. 2, noted that the provisions of the Migration Regulations require that the Bridging F visa is available if 'an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, that the applicant has been identified as a suspected victim of human trafficking'.

[77]      If the client does not hold a valid visa, a second Bridging F visa for up to 45 days may be granted.

[78]      Clients have access to the following support as needed and eligible: Special Benefit, Rent Assistance and a Health Care Card; assistance with securing longer-term accommodation; assistance to purchase essential furniture and household items; access to Medicare and the Pharmaceutical Benefits Scheme; access to legal services and interpreters; assistance to obtain employment and training (including English-language training) if desired; and links to social support.

[79]      See, for example: Project Futures, Submission 14, p. 17; Project Respect, Submission 25, p. 7.

[80]      Submission 21, p. 28.

[81]      See, for example: Ms Rosemary Budavari, Law Council of Australia, Committee Hansard, 29 August 2012, p. 5; Project Respect, Submission 25, p. 7; Anti-Slavery Australia, Submission 28, p. 9.

[82]      Submission 25, p. 7. See also: Anti-Slavery Australia, Submission 28, p. 9.

[83]      Supplementary Submission 28, p. 5. See also: Project Respect, Submission 25, pp 7-8; Ms Rosemary Budavari, Law Council of Australia, Committee Hansard, 29 August 2012, p. 5; Ms Jemima Brewer, Committee Hansard, 29 August 2012, p. 19.

[84]      Supplementary Submission 28, pp 4-5.

[85]      Ms Danica Yanchenko, Attorney-General's Department, Committee Hansard, 29 August 2012, p. 33. See also: Mr Anthony Coles, Attorney-General's Department, Committee Hansard, 29 August 2012, p. 31.

[86]      Mr Anthony Coles, Attorney-General's Department, Committee Hansard, 29 August 2012, p. 31.

[87]      Mr Christopher Callanan, Department of Immigration and Citizenship, Committee Hansard, 29 August 2012, p. 33.

[88]      Mr Christopher Callanan, Department of Immigration and Citizenship, Committee Hansard, 29 August 2012, p. 33.

[89]      Assistant Commissioner Ramzi Jabbour, Australian Federal Police, Committee Hansard, 29 August 2012, p. 36.

[90]      Commander Chris McDevitt, Australian Federal Police, Committee Hansard, 29 August 2012, p. 33.

[91]      Commander Chris McDevitt, Australian Federal Police, Committee Hansard, 29 August 2012, p. 33.

[92]      Mr Anthony Coles, Attorney-General's Department, Committee Hansard, 29 August 2012, p. 31.

[93]      See, for example, ACRATH, Submission 12, p. 1; Australian Lawyers Alliance, Submission 19, p. 4; National Council of Women of Australia, Submission 36, p. 2.

[94]      Anti-Slavery Australia, Supplementary Submission 28, p. 2.

[95]      United Nations Human Rights Council, Report of the Special Rapporteur on trafficking in person, especially women and children on her Mission to Australia (17-30 November 2011), 18 May 2012, p. 14, quoted in Law Council of Australia, Submission 21, p. 29. See also: Project Respect, Submission 25, p. 7, which noted that where the Australian Federal Police encounters a person they feel has been trafficked but the person will not speak to police (and therefore cannot access support or a visa on the Commonwealth Support Program) they remain in a situation of exploitation and slavery.

[96]      United Nations Human Rights Council, Report of the Special Rapporteur on trafficking in person, especially women and children on her Mission to Australia (17-30 November 2011), 18 May 2012, p. 14, quoted in Law Council of Australia, Submission 21, p. 29. See also: Project Respect, Submission 25, p. 7, which refers to the Italian system where victims have access to support and visas though accredited non-government community service organisations.

[97]      Mr Anthony Coles, Attorney-General's Department, Committee Hansard, 29 August 2012, p. 31.

ADDITIONAL COMMENTS BY COALITION SENATORS

[1]        Journals of the Senate, No. 92 – 19 June 2012, pp 2528-2529.