This chapter addresses a number of issues with respect to forced
marriage, a slavery-like offence introduced into Commonwealth legislation in
2013. The chapter first sets out the definition of a forced marriage, as
distinct from an arranged marriage. It then examines the prevalence of forced
marriage in Australia, and concludes with an examination of the Commonwealth government's
response to forced marriage.
What is forced marriage?
In 2013, amendments were made to the Criminal Code Act 1995
(Criminal Code), including the insertion of the offence of 'forced marriage'.
The Criminal Code and the Crimes Act 1914 were also amended in order to
provide protections for vulnerable witnesses giving evidence in Commonwealth
criminal proceedings, including victims of human trafficking and slavery.
Subsequently, in 2015, the definition of 'forced marriage' in the Criminal Code
was expanded, and the related penalties were increased.
Forced marriage appears at section 270.7A of the Criminal Code and is
defined as follows:
- A marriage is a forced
marriage if one party to the marriage (the victim) entered into the marriage
without freely and fully consenting:
because of the use of coercion, threat or deception; or
because the party was incapable of understanding the nature and effect of the
- For the purposes of
subsection (1), marriage includes the following:
Note: Section 2E of the Acts
Interpretation Act 1901 covers relationships registered under a law of a
State or Territory that are prescribed by regulations under that Act.
a registered relationship within the meaning of section 2E of the Acts
Interpretation Act 1901;
a marriage recognised under a law of a foreign country;
a relationship registered (however that process is described) under a law of a
foreign country, if the relationship is of the same, or a similar, type as any
registered relationship within the meaning of section 2E of the Acts
Interpretation Act 1901;
a marriage (including a relationship or marriage mentioned in paragraph (a),
(b) or (c)) that is void, invalid, or not recognised by law, for any reason,
including the following:
a party to the marriage has not freely or fully consented to the marriage (for
example, because of natural, induced or age-related incapacity);
a party to the marriage is married (within the meaning of this subsection) to
more than one person.
Paragraph (1)(a) applies whether the coercion, threat or deception is used
against the victim or another person.
For the purposes of proving an offence against this Division or
Division 271, a person under 16 years of age is presumed, unless the
contrary is proved, to be incapable of understanding the nature and effect of a
Note: A defendant bears a
legal burden in relation to proving the contrary (see section 13.4).
The maximum penalty for a forced marriage offence is seven years, or
nine years for an aggravated offence.
Where the victim is under the age of 18 and is taken overseas for the purpose
of the forced marriage, the maximum penalty increases to 25 years'
A forced marriage is not the same as an arranged marriage, the
distinction being the lack of consent in a forced marriage in contrast with an
arranged marriage. As Anti-Slavery Australia (ASA) explained:
It is a consent issue. It is legal. There is no issue. There
is no breach of Australian law through an arranged marriage, and in fact there
are many successful arranged marriages in Australia.
A forced marriage is different technically. It is a marriage
where there has been conduct—effected through coercion, for example—that has
had the effect of taking away a person's ability to fully and freely consent to
the marriage. It is really a forced marriage. It is where there is no full and
free consent to that marriage, and there have been many examples of forced
marriages in the Australian context—for example, 'Unless you marry this man, I
will harm another person,' or, 'Unless you marry this person, your sister will
not be able to finish her schooling.' There is coercion and threat that can
take away a person's ability to fully and freely consent. In the case law, they
use the expression 'having the will being overborne'. There is no ability to
consent. So it is an issue about coercion and is different from arranged
Sometimes, though, some of the cases use the expression 'the
point at which consent vanishes'. So there is a grey line somewhere, sometimes,
between an arranged marriage and a forced marriage. But many of the cases that
we have seen have been quite clearly on the forced marriage side of the
Forced child marriage
Forced child marriage occurs when the person that is the victim of a
forced marriage is less than 18 years of age. Such an offence is defined as an
aggravated offence, carrying a maximum of nine years' imprisonment.
In its supplementary submission, The Salvation Army—Freedom Partnership
to End Modern Slavery (The Salvation Army) discussed the findings on forced
child marriage in Australia from a study undertaken by the National Children’s
Youth and Law Centre:
...between 2011-2013, 250 cases were identified by research
respondents. From 2014-2015, 28% of total matters investigated by the
Australian Federal Police [(AFP)] were related to early and forced marriage.
Between 8 March 2013-31 July 2015, 49 referrals of forced marriage were
received, of which 41 were accepted for further investigation; 32 of these
matters related to persons under the age of 18.
On the issue of forced child marriage in the Asia-Pacific region, the United
Nations Office on Drugs and Crime (UNODC) stated:
As a phenomenon, the idea of forced marriage is particularly
prevalent in the Mekong region—examples of Vietnamese women being forced to
marry Chinese nationals, for example. That is the classic example. As to the
extent to which these women are children, I am not so sure; although I know
there are some cases where they have been teenage brides, for example. We do
not work specifically on this issue, but we do handle this issue insofar as we
work with law enforcement in these regions and help them to combat trafficking
writ large. We have not had any specific initiatives that look on the issue of
Prevalence of forced marriage in Australia
Data for the 2015–16 financial year indicates that the number of referrals
to the AFP and investigations by the AFP relating to forced marriage have increased
each year since March 2013, when the new offences were first introduced into
the Criminal Code.
In 2015–16, the AFP received 69 referrals for forced marriage offences.
The AFP's practice in respect of responding to referrals is set out in the
government's Trafficking in Persons report:
Where there was sufficient evidence, these matters were
referred to the CDPP. Australia also sought mutual legal assistance to support
ongoing human trafficking and slavery-related investigations during the
reporting period, where evidence was available offshore.
Further information about prosecutions was provided by the Attorney‑General's
...referrals have been received involving victims of alleged
forced marriages that have occurred, or were planned to occur, both
domestically and internationally.
There has only been one forced marriage matter established at
law. In this case the marriage occurred in Australia. The victim in this matter
was an Iranian national, however was not brought to Australia solely for the
purpose of a forced marriage.
The Salvation Army noted that the AFP has reported that forced marriage
offences account for almost 50 per cent of the AFP's investigations
into human trafficking, slavery and slavery-like offences,
commenting that '[u]nfortunately, the current design of the framework has not
delivered prosecutions; has prevented many victims from receiving ongoing
support; and has not reduced the prevalence of the practice'.
The Commonwealth government has acknowledged that a different
investigative approach is required for forced marriage, compared to other human
trafficking and slavery matters.
It was noted in the most recent Trafficking in Persons report that:
Cases of young women and girls in, or at risk of, forced
marriage or serious exploitation within intimate relationships continue to be
identified, with some of these cases involving young women and girls from
Australia being taken overseas to be married. Since the introduction of forced
marriage legislation in March 2013, this crime type has risen to represent 41
per cent of all AFP human trafficking referrals in 2015–16. While there is
currently insufficient information available to determine whether human
trafficking for this purpose has increased in prevalence, or whether a greater
awareness has led to increased reporting, it is anticipated that matters
relating to forced marriage will continue to increase in the medium term given
the legislative changes and greater community engagement.
Government response to forced marriage
Forced marriage has been identified as one of the seven key areas of
focus of the National Action Plan to Combat Human
Trafficking and Slavery 2015–19 (NAP).
The NAP provides that:
...forced marriage has been criminalised in Australia since the
entry into force of specific offences in the Criminal Code on 8 March 2013.
Over the life of the National Action Plan, a key area of focus will be to
refine the Australian Government response to this issue including the provision
of support and appropriate referral pathways for people in, or at risk of
forced marriage. Work will also continue to finalise the development and
dissemination of a Forced Marriage Community Pack for frontline officers and
service providers, vulnerable groups, and the general public including:
information and FAQ sheets on forced marriage; a small fold-away booklet for
people in, or at risk of forced marriage; a how to guide (including a template)
on preparing a forced marriage safety plan; a media fact sheet; a forced marriage
information booklet for agencies, community organisations and service
providers; and, a website to assist people in, or at risk of forced marriage
with information, links to services and free online individualised advice.
The following sections consider the Commonwealth government's response
to forced marriage by examining the effectiveness of existing legislative
provisions; funding for NGO programs intended to reduce the prevalence of
forced marriage; community education; and interagency and interstate
Effectiveness of existing
While submitters welcomed the criminalisation of forced marriage, a
number of recommendations were made to the committee in respect of legislative
and regulatory reform that could increase the effectiveness of the existing
For example, Australian Catholic Religious Against Trafficking in Humans
(ACRATH), an organisation educating young people on the topic of human
trafficking since 2005, advocated for the inclusion of forced marriage in the
definition of family violence in Australia, on the basis that the family
violence sector has 'vast experience in victim/survivor care, community
education and development of resources'.
Further, ASA considered that the following changes could be made to the
Migration Regulations 1994:
...repeal the “would be in danger”
clause currently contained within Migration Regulation 2.07AK.
Provide for temporary family
reunification for victims of human trafficking who have assisted police for 6
to 12 months or more while holding the Bridging F Visa.
Amend the family violence
provisions in the Migration Regulations 1994 (Cth) to include
circumstances where a marriage was forced such that there is no ‘genuine
A number of organisations specifically raised concerns about the
existing protection order regime. For example, ASA identified that, through its
experience with this offence—discussed further below—there are 'significant
gaps in the legal framework', particularly in respect to the existing family
law protective jurisdiction.
The ASA therefore advocated for:
...the introduction of a complementary civil framework through
the Family Law Act 1975 (Cth) to address gaps in victim support and
protection where any person, regardless of age, is at risk of or in a forced
In its submission, the Australian Human Rights Commission (AHRC) also
identified legislative gaps and recommended that '[t]he Australian Government allow
for general protective and preventative orders be issued for people over the
age of 18 years in relation to forced marriage'.
This recommendation was made on the basis of the following explanation:
The Family Court of Australia and the Federal Circuit Court
of Australia can issue protective and preventative orders for children at risk
of forced marriage. However, there is currently no civil protection order
available for young women aged over 18 years who are at risk of forced
marriage. Such a protection order has been introduced in other jurisdictions
for example, the United Kingdom Forced marriage protection order which allows
those at risk or their advocates to apply for a protective order, regardless of
the age of the person at risk.
The inadequacy of protective orders was also acknowledged by The Salvation
Army as providing an example of where 'challenges exist' in the implementation
of the forced marriage provisions.
It was noted that, pursuant to the Family Law Act 1975 (Family Law Act),
protections no longer apply when an individual reaches the age of 18.
As a result, 'any orders in place whilst the individual was under 18, such as
an Airport Watch List Order, are lifted and can no longer protect the individual
at risk once they turn 18'.
The Salvation Army therefore recommended that the government
'[i]ntroduce Forced Marriage Protection Orders, similar to the U.K. model,
which include airport watch list orders and court ordered intervention for
those over the age of 18'.
It was also recommended that the government:
Integrate federal and state
responses to forced marriage which include a mandatory role for state child
Remove the requirement to
cooperate with law enforcement for victims of trafficking. As a minimum, remove
the requirement for victims of child and forced marriage and for all children.
In response to questions on notice, the AGD informed the committee that
the ability to create border alerts specific to forced marriage has existed
since October 2016, and is divided into two alert types: 'Forced Marriage
– Investigations' and 'Forced Marriage – Court Order’.
To date, there have been 75 'Forced Marriage – Investigations' alerts, with 56
still in effect. The committee was also informed that of these 75 alerts, 33
related to people under 18 years of age, and 42 to people over 18 years of age.
The committee notes that there have been no 'Forced Marriage – Court Order'
The committee acknowledges the various recommendations made to it to
amend existing provisions of the Migration Regulations 1994 and the Family Law
Act, which may serve to strengthen protections for potential victims of forced
marriage. However, the committee considers the existing legislative provisions are
sufficient to address this practice, and that protections for these potential
victims could be strengthened by other means.
The committee welcomes the AGD's advice that border alerts relating to
forced marriage have been available to Australian authorities since October
2016. However, the committee is concerned about the apparently limited
protections available to people over the age of 18, and therefore considers there
may be merit in extending protection orders, including court ordered alerts, to
The committee recommends that the Commonwealth government considers
extending the application of protection orders relating to forced marriage to
people over 18 years of age.
Funding for non-government
Following the introduction of the offence of forced marriage in the
Criminal Code, the AGD provided specific one-off funding to three organisations:
In 2014, the Australian Government awarded a total of
$485,925 in further funding to three specialist [non-government organisations]
over three years to progress outreach, education and awareness-raising
activities on forced marriage issues. [ASA] received $355,393 to develop and
administer a dedicated website to provide people in, or at risk of, forced
marriage with information, advice and links to support services. The website, My
Blue Sky, was launched on 25 November 2015 and also includes a helpline and
a free legal advice service primarily delivered by text message and email. ACRATH
received $61,000 to develop a unit of work and resource kit for teachers,
school support staff and students in pilot schools across Australia. The
Australian Muslim Women's Centre for Human Rights (AMWCHR) received $69,532 to
develop a pilot education and training program aimed at increasing the capacity
of frontline organisations in vulnerable communities. The ACRATH and AMWCHR
projects were pilots and were completed in December 2015.
In its submission, ASA provided an overview of the My Blue Sky website:
My Blue Sky includes dedicated pages for young children and
teenagers; educators and medical practitioners; as well as a page for those who
are worried about a friend who may be forced to marry. Parts of the website are
available in six languages with links to the [AGD] Forced Marriage Community
ASA also provided details of the website's usage in 2016, which 'highlight[s]
the need for coordinated, accessible education targeted towards at-risk
My Blue Sky has received over 20 requests and referrals for
assistance and legal advice concerning Australians who feared, or were subject
to forced marriage during 2016. Additionally My Blue Sky has received referrals
from temporary partner visa holders who have reported that they have
experienced violence, preceded by a forced marriage.
Speaking on behalf of ASA, Professor Jennifer Burn informed the
committee that this form of engagement with vulnerable people allows a
relationship of trust to be built:
...vulnerable people can contact us confidentially and
securely. They often begin the communication with a tentative question, and
then we will respond. Then there will be another question or a comment. In some
of our cases we have had over 40 communications with a young person fearing
forced marriage before there is an instruction to take some steps and
protective steps on their behalf. It is interesting to see that. That is one of
the benefits of an online scheme that we had not anticipated.
The committee also received evidence from ACRATH, another organisation
that had received government funding to respond to the practice of forced
marriage. ACRATH noted that through its role educating secondary and tertiary
students about human trafficking, it has identified that there is:
...a great deal of ignorance about the issues of forced
marriage, about the difference between forced and arranged marriages, about the
human rights of all people with regard to marriage, and about supports that are
available to people, mostly girls and young women, who are facing forced
Indeed, ACRATH suggested to the committee that it is necessary for
schools and the community sector to educate parents about the law with respect
to forced marriage, but also the social detriments of this practice.
ACRATH also discussed the lack of government funding for the programs it
is undertaking in schools, and suggested that forced marriage training could be
included in the curriculum for all schools.
In its supplementary submission, ACRATH noted that it had:
...asked [AGD] to continue funding to raise awareness of forced
marriage for at least another two years in order to meet this need [for
awareness raising]. One experienced ACRATH ex-principal likened the
introduction into schools of forced marriage units of study to the introduction
in the 1970s of sex education; she commented that it took a number of years for
school communities to accept the sex education material and to be able to face
the challenges of teaching the material and offering support to students who
need it. ACRATH believes the same challenges are being faced now that units of
study on forced marriage are being introduced.
ACRATH advocated for a number of other policy changes with respect to
forced marriage, including the establishment of a Pilot Project for flexible
entry to the Support for Trafficked People Program.
ACRATH and a number of other submitters and witnesses advocated for
early engagement with potential victims of forced marriage, and providing these
people with adequate and appropriate support.
For example, The Salvation Army stated:
The inherent challenge is that people who need help are not
getting it. Outside of the Federal Government’s Support Program there are no
funded services for comprehensive, face-to-face support for individuals facing
early and forced marriage.
In our experience, the majority of individuals seeking
support do so before the marriage takes place. This illustrates the need to
ensure that an effective early intervention response is in place. Our clients
have told us that if they want to avoid being married they are not able to
remain living at home. All have reported physical and/or verbal abuse once
their families found out they were resistant, did not want to marry or, had
told somebody about their situation.
The committee believes that community engagement and education are the
most appropriate ways in which forced marriage in Australia can be addressed;
the committee is therefore supportive of the programs conducted by
organisations such as ACRATH, ASA and the AMWCHR and urges the government to
ensure that these programs continue into the future.
The committee is concerned that government funding for these
organisations is not ongoing. In order for these organisations to continue their
important work, the committee considers it imperative that the Commonwealth government
continues to fund them—and other suitable organisations and programs—for outreach,
education and awareness-raising activities on forced marriage issues.
The committee recommends that the Commonwealth government continues to
fund organisations and programs that engage in outreach, education and
awareness-raising activities on forced marriage issues.
The committee also notes the evidence about the role of educating
school-aged children and their parents about forced marriage as one way in
which governments can work to combat forced marriage. The committee agrees that
consideration should be given by Australian governments to including education
on forced marriage in school curricula.
The committee recommends that Australian governments consider the
inclusion of education on forced marriage in school curricula.
Community engagement and education
As mentioned above, community engagement and education play a vital role
in addressing forced marriage in the Australian context. The AGD told the
committee about the Commonwealth government's role in community engagement,
with the help of civil society organisations:
...we developed and launched a very comprehensive forced
marriage community pack in December 2014. It includes practical things like a
template safety plan, question-and-answer information sheets, small booklets
and guides for service providers. We developed that in conjunction with Civil
Society. There was a working group under the national round table that has
Civil Society on it. In 2015, we translated a range of that information into a
number of priority committee languages—Arabic, Dari, Farsi, Somali, Tamil,
Urdu. So we are doing quite a bit to address exactly the issue that you are
raising. The pack was updated this year, and we are going to redistribute the
forced marriage community pack in the middle of this year.
ASA noted that 'collaborative forced marriage networks have been
established in New South Wales and Victoria', distinct from government, 'with
plans to establish networks in other states and territories in the future'.
Further detail was provided about the NSW Forced Marriage Network, which ASA
co-convenes with the Australian Red Cross. The Network:
...brings together over 130 members from 60 government and
community organisations. Membership includes representation from the Cultural
and Linguistically Diverse (CALD) communities, migrant resource centres,
government agencies at the local, state and federal level as well as from
community organisations and individual advocates. The purpose of the Network is
to engage the community to raise awareness about and prevent forced marriage as
well as to provide coordinated support and assistance to people who may be in,
or at risk of, forced marriage. Three working groups have also been established
in the areas of prevention, education and training and direct service
provision. There is clearly a need for greater education and awareness-raising
about forced marriage in all communities. Currently the Networks are run on a
pro-bono basis by members, and this limits the capacity to provide education
and outreach. There is a real need for government funding for these Networks.
The Salvation Army outlined the benefits likely to arise from restructuring
the current framework for addressing forced marriage, in order to 'take
advantage of well‑developed networks at the community level':
The advantages of doing so would include better resource
sharing between Commonwealth and state-based agencies; tapping into the
expertise of victim-response networks, including local refuges, family violence
services, and cultural community based organisations, all of which could
provide support for victims unable to go onto and remain on the Support
Program; and finally, leveraging this cooperation to progress community
engagement, which is quite limited in the current framework, to decrease the
practice of forced marriage.
Indeed, Ms Laura Vidal, National Projects Coordinator at The Salvation
Army did not consider that strengthening criminal offences with a view to
increased deterrence was the 'most effective way of moving forward' with
respect to this issue:
What we need to do is ensure that appropriate support is
available to people so that they can prevent a marriage from occurring, and
then deliver grassroots community education with a whole diverse split of
communities. We need to be really careful that we are not segmenting out
particular groups where we have an assumption that this practice is more common
than others. We have received referrals from a wide range of religious and
cultural backgrounds, so we would definitely advocate for this as a human
rights issue. Education needs to be built in using a human rights framework,
and the rights of women and girls and men and boys are part of that piece of
mainstream human rights education.
The Department of Social Services (DSS) described the information on
forced marriage that is provided to visa applicants:
The family safety pack sits on the DSS website, but the link
to it is in visa grant letters. When people apply for, initially, a spouse
visa, they get a range of information attached to that letter that says: 'The
Australian government has important information to provide about Australian
law. See the attached link.' So, in many cases, they would access it via the
internet, but in Immigration posts where the internet is not easily available—it
is easily printed out and provided with the visa letter. It is provided before
arrival and, principally, for spouse visa holders. Last year, after a range of
consultations with CALD and migrant communities, there was a suggestion that it
be progressively expanded to other visa classes, because there are people in
similar situations—say the spouse is an international student or a 457 holder;
there are various sorts of dependent visas. To my knowledge, it has been
expanded out to 457 visa holders, international students, New Zealand category
visa holders, and it is our understanding that it will be progressively
It was further clarified, in response to questions on notice, that a
link to the Family Safety Pack, which 'includes four factsheets on domestic and
family violence, sexual assault, forced and early marriage, and family violence
and partner visas' is provided to visa applicants across the partner, child,
orphan relative, skilled and student visa streams.
The pack has been translated into 46 languages.
The committee was also informed that newly arrived migrants,
humanitarian entrants, and their sponsors and service providers receive a
Beginning Life in Australia booklet, which 'includes links to national and
state-based organisations people can contact if they require support or
information about forced marriage'.
Offshore humanitarian entrants also participate in the Australian
Cultural Orientation program, where participants are provided with a booklet
that includes information about Australia's laws on forced marriage.
This information is provided again through the Humanitarian Settlement Services
program, once these visa holders have arrived in Australia.
However, ACRATH suggested that the government is not doing enough to
inform people migrating to Australia that forced marriage is unlawful.
ACRATH identified that this issue requires 'a multifaceted approach', including
that people have the opportunity to access information about Australia's
response to forced marriage through English language classes migrants
participate in on their arrival in Australia.
As outlined at paragraph 5.36, the committee is of the opinion that
community engagement and education are the most appropriate means of addressing
forced marriage in Australia.
Consistent with this view, and the committee's earlier recommendations
relating to briefings and information for migrant workers pre-departure and
post-arrival in Australia, the committee recommends that information about
forced marriage (amongst other things) is consistently and routinely provided
to newly arrived migrants in Australia, not only through their engagement with
government officials at their point of arrival and when accessing government
services, but also through appropriate community groups and programs.
The committee recommends that information on forced marriage is
consistently and routinely provided to newly arrived migrants in Australia
through their engagement with government officials and agencies, as well as
appropriate community groups and programs.
Interagency and interstate cooperation
In chapter 2, the committee discussed the need to strengthen the Interdepartmental
Committee on Human Trafficking and Slavery, agency engagement and engagement
between the Commonwealth and state and territory governments. Some submitters to
the inquiry also raised the lack of coordination across governments and
frontline services with regard to forced marriage in particular.
For example, The Salvation Army stated that '[a] more streamlined and
accessible response protocol that involves both state and federal government
agencies and civil society is required' noting that '[t]he current approach
places excess burden on the individual at risk to initiate these processes'.
The Salvation Army provided the following example:
One young woman in a pair of sisters, accommodated by a
partner youth service, disclosed the confidential address of her sibling to the
family who was actively looking for her following her disclosure of forced
marriage. When reporting this to New South Wales police they did not have any
specific criminal legislation that could apply to this unique situation. It was
decided that should the family make an attempt to access the property and the
individual at risk, New South Wales police would utilise a ‘trespassing
offence’. A more appropriate response would be for responding officers to
assist the victim to obtain a protection order.
The Salvation Army recommended that the NAP should be revised, in
cooperation with states and territories, in order to 'include specific,
measurable and funded steps to facilitate a more coordinated response to early
and forced marriage':
- As part of this process, the federal government should
work with states to update relevant legislation ensure it is effectively
synchronised with federal legislation.
- The federal government should then work with states to
develop clear response protocols between key stakeholders and provide
supplemental funding to build states’ capacity to efficiently identify and
appropriately respond to disclosures of early and forced marriage
Ms Vidal elaborated on this at a public hearing, noting that 'we are
experiencing a great deal of difficulty with state agencies recognising the
existence of the federal framework or that the federal offences exist'.
The need for better coordination with states and territories was also
highlighted by ASA:
Since the practice of forced marriage was criminalised in
2013, the [AFP] have reported that a significant number of children are facing
forced marriage. As child protection is a state issue, this highlights the need
for clear coordination between federal and state agencies for the purpose of
establishing effective referral and support services.
Given the committee's first recommendation, it is unnecessary for
the committee to make a further recommendation in relation to inter-agency
coordination and communication specifically on forced marriage. However, the
committee encourages the Commonwealth government to consider improvements to
inter-agency coordination and communication on forced marriage issues in the
context of recommendation 1.
Mr Craig Kelly MP
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