CHAPTER 2


CHAPTER 2

Key provisions of the Bill

2.1        The key provisions in Schedule 1 of the Bill amend the slavery, sexual servitude, deceptive recruiting and people trafficking offences in Divisions 270 and 271 of the Criminal Code Act 1995 (Cth) (Criminal Code) to:

  • introduce new offences of forced labour, forced marriage, harbouring a victim and organ trafficking;
  • extend the application of the existing offences of deceptive recruiting and sexual servitude so they apply to non-sexual servitude and all forms of deceptive recruiting; and
  • broaden the definition of exploitation to include a range of slavery-like practices.[1]

2.2        Schedule 2 of the Bill includes a provision to amend section 21B of the Crimes Act 1914 (Cth) (Crimes Act) to increase the availability of reparation orders to victims of federal offences.

Division 270 – Slavery and slavery-like conditions[2]

Definitions

2.3        Item 8 of Schedule 1 will insert into the Criminal Code proposed new section 270.1A – Definitions for Division 270. Definitions included in proposed new section 270.1A are:

  • 'coercion' includes coercion by any of the following: force; duress; detention; psychological oppression; abuse of power; taking advantage of a person's vulnerability; and
  • 'threat' means: a threat of coercion; or a threat to cause a person's deportation or removal from Australia; or a threat of any other detrimental action, unless there are reasonable grounds for the threat of that action in connection with the provision of labour or services by a person. A note to the definition states that threat also includes a threat made by any conduct, whether express or implied and whether conditional or unconditional.

2.4        Proposed new section 270.1A also includes a reference to 'deceive' as having the same meaning as in section 271.1, where it is defined as meaning to 'mislead as to the fact (including the intention of any person) or as to law, by words or other conduct'.[3]

Slavery-like offences

2.5        Sections 270.4 – 270.9 of the Criminal Code deal with sexual servitude offences (including deceptive recruiting for sexual services). Item 12 of Schedule 1 of the Bill repeals current sections 270.4 – 270.9 of the Criminal Code and inserts a new 'Subdivision C – Slavery-like conditions' into section 270 of the Criminal Code.

2.6        Subdivision C establishes a new range of 'slavery-like offences', which are defined as servitude offences, forced labour offences, deceptive recruiting for labour or services, and forced marriage offences.[4]

2.7        Outlined below are the provisions in relation to servitude offences, forced labour offences and forced marriage offences.

Servitude offences

2.8        Servitude is defined in the Bill as: as the condition of a person (the victim) who provides labour or services, if, because of the use of coercion, threat or deception a reasonable person in the position of the victim would not consider himself or herself to be free to cease providing the labour or services; or to leave the place or area where the victim provides the labour or services (proposed new paragraph 270.4(1)(a)).[5]

2.9        The provisions of the offence also require that the victim must be significantly deprived of personal freedom in respect of his or her life other than the provision of the labour or services (proposed new paragraph 270.4(1)(b)).

2.10      A victim may be in a condition of servitude whether or not escape from the condition is practically possible for the victim, or the victim has attempted to escape from the condition (proposed new subsection 270.4(3)).

2.11      Proposed new section 270.5 sets out the servitude offences, namely:

  • engaging in conduct which causes a person to enter into or remain in servitude (subsection 270.5(1)); and
  • conducting a business[6] involving the servitude of another person (or persons) (subsection 270.5(2)).[7]

2.12      Proposed new subsections 270.5(3) and (4) provide that a court may find a defendant not guilty of a servitude offence, but guilty of a forced labour offence in certain circumstances.

Forced labour offences

2.13      Proposed new section 270.6 defines forced labour as: the condition of a person (the victim) who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person in the position of the victim would not consider himself or herself to be free to cease providing the labour or services; or to leave the place or area where the victim provides the labour or services.[8]

2.14      A victim may be in a condition of forced labour whether or not escape from the condition is practically possible for the victim, or the victim has attempted to escape from the condition (proposed new subsection 270.6(3)).

2.15      Proposed new section 270.6A sets out the following forced labour offences:

  • engaging in conduct that causes a person to enter into or remain in forced labour (proposed new subsection 270.6A(1)); and
  • conducting a business involving the forced labour of another person (or persons) (proposed new subsection 270.6A(2)).[9]
Forced marriage offences

2.16      Proposed new subsection 270.7A(1) defines a forced marriage as: a marriage where, because of the use of coercion, threat or deception, one party to the marriage (the victim) entered into the marriage without free and full consent.[10]

2.17      Proposed new subsection 270.7A(2) defines marriage for the purposes of subsection 270.7A(1) as:

  • a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act);
  • a marriage recognised under a law of a foreign country;
  • a relationship registered 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; or
  • a marriage that is void, invalid, or not recognised by law, for any reason.

2.18      Proposed new section 270.7B creates the following forced marriage offences:

  • engaging in conduct that causes a person to enter into a forced marriage as the victim of the marriage (subsection 270.7B(1)); and
  • being a party to a forced marriage (where the person is not the victim of the forced marriage) (subsection 270.7B(2)).[11]

Relevant evidence provision

2.19      Proposed new section 270.10 sets out a range of circumstances that the court may have regard to when determining if a person against whom a slavery-like offence is alleged to have been committed (the alleged victim) has been coerced, threatened or deceived.

2.20      The circumstances to which the court may have regard include the following matters:

  • the economic relationship between the alleged victim and the alleged offender;
  • the terms of any written or oral contract or agreement between the alleged victim and the alleged offender;
  • the personal circumstances of the alleged victim including, but not limited to, whether he or she is entitled to be in Australia under the Migration Act 1958, his or her ability to speak, write and understand English or another language, and the extent of his or her social and physical dependence on the alleged offender.[12]

General consent provision

2.21      Proposed new section 270.11[13] states that it is not a defence to the offences in Division 270 that the person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence.

Division 271 – Trafficking in persons and debt bondage

Definition of 'exploitation'

2.22      Item 22 of Schedule 1 inserts a new definition of 'exploitation' into the Criminal Code to become new section 271.1A. The definition provides that exploitation of one person (the victim) by another person occurs if the other person's conduct causes the victim to enter into any of the following conditions: slavery,[14] or a condition similar to slavery; servitude; forced labour; forced marriage; or debt bondage.[15]

Offence of 'harbouring a victim'

2.23      Proposed new subsection 271.7F(1) creates an offence of 'harbouring a victim'. A person (the offender) commits the offence if they harbour, receive or conceal another person (the victim) and, in doing so, the offender assists a third person in connection with any offence committed by the third person (the 'third person offence') or furthers a third person's purpose in relation to any 'third person offence'. The 'third person offence' must be an offence against Division 271[16] or Division 270.

2.24      The penalty for the offence in proposed new section 271.7F is a maximum of four years imprisonment.

2.25      A person can be found guilty of an offence under proposed new subsection 271.7F(1) even if the third person has not been prosecuted for, or has not been found guilty of, any other offence (proposed new subsection 271.7F(4)).

2.26      Proposed new section 271.7G creates an aggravated offence of harbouring a victim. A person commits the aggravated offence where the victim of the harbouring offence is under 18 years of age. The maximum penalty for the aggravated offence is seven years imprisonment.

Other amendments to Division 271

2.27      The Bill also seeks to amend Division 271 to:

  • establish new offences of organ trafficking;[17]
  • insert a new aggravated offence of debt bondage;[18]
  • insert a general relevant evidence provision (in the same terms as proposed new section 270.10) which sets out a list of matters a court or jury may have regard to in determining whether an alleged victim has been coerced, threatened or deceived (in relation to offences pertaining to trafficking in persons and harbouring a victim), or whether an alleged victim (or alleged victim's guardian) has consented to the removal of an organ of the alleged victim (in relation to the organ trafficking offences).[19]
  • insert a general consent provision (in the same terms as proposed new section 270.11) to make it clear that a victim's consent or acquiescence cannot be used as a defence in a proceeding for an offence under Division 271.[20]

Reparations for victims

2.28      Section 21B of the Crimes Act deals with reparation for offences. Currently, paragraph 21B(1)(d) of the Crimes Act provides that the court may order an offender to 'make reparation to any person, by way of money payment or otherwise, in respect of any loss suffered by the person as a direct result of the offence' (emphasis added).

2.29      Item 2 of Schedule 2 of the Bill amends paragraph 21B(1)(d) so that the provision states that the offender can be ordered to make reparation in respect of any loss suffered 'or any expense incurred, by the person by reason of the offence'.

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