Chapter 2 - Issues raised in respect of the bill
2.1
The overwhelming majority of submissions to the inquiry
supported the Government's proposal to ratify the Protocol and to criminalise human
trafficking. However, submissions also raised two broad sets of concerns with
respect to the Bill: that it failed to implement
the requirements of the Protocol and that it contained a number of
discrepancies with respect to domestic criminal law. This chapter of the report
examines these two issues.
Implementation of the Protocol
2.2
The stated rationale for the Bill
is to criminalise comprehensively every aspect of trafficking in persons and
thereby fulfil Australia's
obligations under the Protocol. Passage of the Bill,
combined with measures already in place, is intended to allow Australian
ratification of the Protocol in the near future.[4]
The requirements of the Protocol
2.3
Article 5(1) of the Protocol will require Australia
as a State Party to:
... adopt such legislative and other
measures as may be necessary to establish as criminal offences the conduct set
forth in article 3 of this Protocol, when committed intentionally.
2.4
The conduct to be criminalised is described in Article
3 as 'trafficking in persons'. It comprises:
... the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the threat or use of
force or other forms of coercion, of abduction, of fraud, of deception, of the
abuse of power or of a position of vulnerability or of the giving or receiving
of payments or benefits to achieve the consent of a person
having control over another person, for the purpose of exploitation.[5]
2.5
It was put to the Committee that three elements must
therefore be made out in order for the proscribed activity - 'trafficking in
persons' - to occur.[6]
These are:
- An action consisting of recruitment, transportation, transfer, harbouring or
receipt of persons.
- That
action is undertaken by means of threat or use of force or other
forms of coercion, of abduction, of fraud, of deception, of the abuse of power
or of a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another person.
- That action is undertaken for the purpose of 'exploitation'. Article 3(a) of the Protocol provides that:
'exploitation' shall include, at a
minimum, the exploitation of the prostitution of others or other forms of
sexual exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs.
2.6
There must be no requirement to establish the existence
of any of the above-mentioned means where a child is involved.[7] Article 3(c) of the Protocol expressly
provides that:
the recruitment, transportation,
transfer, harbouring or receipt of a child for the purpose of exploitation shall
be considered "trafficking in persons" even if this does not involve
any of the [above-mentioned] means.
2.7
The Protocol also states that the consent of a victim
of 'trafficking in persons' to the intended exploitation must be irrelevant
where any of the means listed in Article 3(a) have been used.[8]
Concerns that the Bill is
inconsistent with the Protocol
2.8
Submitters argued that the Bill,
as currently drafted, fails to comply with or satisfy the above-mentioned
requirements of the Protocol and, as such, Australia's
obligations under that Protocol.[9] A consequence, it is argued, is that the Bill
fails to appropriately capture and criminalise all aspects of trafficking in
persons. Amendments to the Bill have therefore
been suggested. These arguments are considered below.
The consent of victims made an issue?
2.9
Concerns have been raised that the proposed offences of
trafficking by force or threat require the prosecution to prove - and therefore
the defence to disprove - that the force or threats of the accused resulted in
consent on the part of the victim.[10] That
is, that the victim's consent will in effect be made an issue before the court.
This, it is argued, is at odds with the above-mentioned requirement of the
Protocol that the consent of the victim shall be irrelevant in such cases.[11]
The Coalition Against Trafficking in Women Australia (CATWA), for
example, criticises this approach as placing the onus on the victims of
trafficking to prove that they have been forced into trafficking instead of
targeting the action of the traffickers.[12]
Witnesses argued that the element of the victim's consent should therefore be
removed from the offences.[13]
Response of the Attorney-General's Department
2.10
The Attorney-General's Department maintained that
the Bill is consistent with the Protocol's
requirement that the consent of the victim to the 'intended exploitation' should
be irrelevant. It explained
that:
The victim’s consent to the trafficking
activity does not provide an excuse or defence for the trafficker. The key
issue for the prosecution to establish is the use of force or threats by the
offender to obtain the victim’s consent to the activity. Subsection 271.2(1) creates an offence
where the victim’s consent ‘to the entry into Australia’
is obtained by force or threats. The
offence will be made out where the victim consented to participate in forced
labour on arrival in Australia,
provided the victim’s consent to come to Australia
was obtained through the use of force or threats.[14]
The Committee's view
2.11
The Committee shares the concern of witnesses that the
offences as currently framed put the consent of victims in issue before a criminal
court. In its view, this is inconsistent with the requirements of the Protocol.
Moreover, it appears unnecessary. See in this regard the other recommendations
of the Committee listed below. The Committee therefore recommends that the
references to consent of victims be omitted.
Recommendation 1
2.12
The Committee recommends that proposed subsections
271.2(1) and 271.5(1) of the Bill be amended to
remove any reference to the consent of victims.
Failure to specify an exploitative purpose?
2.13
Concerns were raised over the apparent failure to
include the element of exploitative purpose in the proposed trafficking offences.[15] This, it is suggested, is inconsistent
in that other proposed offences in the Bill implicitly
or expressly include such a requirement.[16]
Moreover, it means that the application of the proposed trafficking offences
extend well beyond people trafficking and into people smuggling – an activity
already prohibited by other Commonwealth legislation.[17] This blurring of people trafficking
with people smuggling is seen as undesirable.[18]
As the Human Rights and Equal Opportunity Commission (HREOC) argued, an exploitative
purpose:
... is an essential component of the
definition of trafficking in the trafficking protocol. Its omission means that
these offences have an uncertain scope extending to circumstances outside the
internationally accepted definition of ‘trafficking’. That lack of certainty
may undermine public confidence in the new offence regime and thus actually
harm the government’s efforts to raise awareness of the problems associated
with trafficking.[19]
Response of the Attorney-General's Department
2.14
In view of the above, the Committee asked the Attorney-General's
Department why the new trafficking offences did not require that the conduct be
for the purpose of exploitation whereas other offences - such as the proposed
trafficking in children offences - do. The Department's response was as follows:
The elements of these offences are different. The general
trafficking offences in section 271.2 require either the use of force or
threats, or the use of deception about certain matters, including that the
victim will be exploited. These offences
are available whether the victim is a child or an adult. The trafficking in children offence in
section 271.4 does not require the prosecution to prove that the offender
threatened the child, used force against the child, or deceived the child. In addition, whether the child ‘consented’ to
the conduct is irrelevant to the offence. It is only necessary to prove that the offender intended or was reckless
as to the fact that the child would be used to provide sexual services or
otherwise exploited.[20]
The Committee's view
2.15
After careful consideration, the Committee
considers that the concerns raised by witnesses, including HREOC and World
Vision, carry some weight. The Committee was unable to be persuaded that the
proposed trafficking offences, as currently drafted, merely meet the
requirements of the Protocol. The Committee remains unaware of any cogent
justification for these offences' application to circumstances outside the
internationally accepted definition of 'trafficking'. It is also concerned at
the potential for such widely cast criminal offences to have unintended
consequences. The Committee therefore recommends that the relevant offences be amended
to require that the conduct to be proscribed be undertaken for the purpose of
exploitation. As mentioned below, the Committee also considers that
'exploitation' should be defined in the same terms as it appears in the
Protocol.
Recommendation 2
2.16
The Committee recommends that proposed subsections
271.2(1) and 271.5(1) be amended to include in the trafficking offences an
element of a purpose of exploitation.
Not all means of trafficking covered?
Means
other than force, threats or deception not covered?
2.17
The proposed offences of trafficking in persons will
criminalise organising or facilitating the entry, proposed entry or receipt of
another person into Australia,
or transportation within Australia,
by means of force, threat or deception about certain matters.[21] The Bill
also extends the scope of the existing section 270.7 of the Criminal Code which
criminalises deceptive recruiting for sexual services.
2.18
Submitters acknowledge that the above will go some way
to satisfying the obligations of the Protocol. However, they noted that, while
force, threat or deception may be significant techniques used by traffickers,
they are not the only techniques or 'means' of trafficking that are used and
therefore to be prohibited under Article 3 of the Protocol.[22] As Project Respect stated:
[any]
legislation which seeks to embrace the UN Trafficking Protocol, and address all
forms of trafficking in persons, needs to address the myriad of ways in
which traffickers recruit, transport, harbour and receive persons.[23]
2.19
In contrast, it was noted that the Bill
did not expressly address the following means of trafficking which are listed
in Article 3(a) of the Protocol:
- other forms of coercion;
- the abuse of power or of a position of vulnerability;
and
- the giving or receiving of payments or benefits
to achieve the consent of a person having control over another person.[24]
All
forms of deceptive recruitment covered?
2.20
As mentioned above, the Bill
amends subsection 270.7(1) of the Criminal Code to widen the offence of
deceptive recruitment for sexual services. The Explanatory Memorandum explains
that:
... section 270.7 does not address the situation where a person
knows he or she will be working in the sex industry but is deceived about the
exploitative conditions of that employment. ... The amended offence [therefore]
includes deception about the conditions under which sexual services are to be
provided.[25]
2.21
Subsection 270.7(1) will therefore be amended to apply expressly
to deception about:
- the fact that the arrangement will involve the
provision of sexual services;
- the extent to which the person will be free to
leave the place or area where the person provides sexual services;
- the extent to which the person will be free to
cease providing sexual services;
- the extent to which the person will be free to
leave his or her place of residence; and
-
the fact that the engagement will involve
exploitation, debt bondage or the confiscation of the person’s travel or
identity documents.
2.22
However, it was put to the Committee that the amended
offence fails to cover all the required forms of deception.[26] That is, none of the matters listed in
the above paragraph cover deception about:
- the nature of sexual services a person
will be required to provide; and
- the quantum of any debt or purported debt owed
or which will be owed by the person in connection with the engagement.
2.23
Submissions referred to the Parliamentary Joint
Committee on the Australian Crime Commission (PJCACC) recent recommendation
that it is essential that such deception be clearly criminalised.[27] Deception is a significant technique
used by traffickers. Evidence presented to the PJCACC confirmed that the
majority of deception that occurs in trafficking of sex workers relates to the
size of the debt that trafficked workers must repay, the number of clients they
must see and the range of sexual services they must provide.[28]
2.24
Similar concerns were raised in respect of proposed deceptive
trafficking offences in subsections 271.2(2) and 271.5(2).[29] That is, that they also failed to
cover deception about the nature of sexual services to be provided and the
quantum of any debt or purported debt.
2.25
Submitters also highlighted an apparent inconsistency
between the Bill's deceptive trafficking
offences and its deceptive recruiting offences in respect of the extent of
deception.[30] Proposed subsection
271.2(2) makes it an offence to organise or facilitate the entry etc into Australia
where there is deception about the fact that the entry etc will involve the
provision of sexual services, exploitation, debt bondage or the confiscation of
travel or identity documents. Proposed subsection
271.5(2) creates a similar offence in respect of domestic trafficking. However,
neither provision includes deception about the matters listed in proposed
section 270.7. That is, the extent to which the person will be free to:
- leave the place or area where the person
provides sexual services;
- cease providing sexual services; or
- leave his or her place of residence.
Response of the Attorney-General's
Department
2.26
The Department argued at the hearing that the three
alternative means of trafficking listed in the Bill
– force, threats and deception – would cover the field in respect of what is
required by the Protocol.[31] That is, force or threat would cover
trafficking by means of 'other forms of coercion', 'abuse of power or of a
position of vulnerability' or 'the giving or receiving of payments or benefits
to achieve the consent of a person having control over another person'.[32] The Department did note, however, that
it would depend in each case on the exact issues presented to the court.
2.27
The Committee put to the Department the specific
concerns of witnesses that the Bill did not
address all forms of deceptive recruitment. The Department's response was as
follows:
The new trafficking in persons offences in section 271 cover
deception as to the fact that the entry, receipt or arrangements for the
victim’s stay in Australia will involve the provision of sexual services,
exploitation, debt bondage or the confiscation of the person’s travel or
identity documents .... The amended offence [ie, section 270.7] will apply where
the perpetrator deceives a victim about the way they will be required to
perform their job. ... This will ensure perpetrators are not able to impose work
conditions on the victim that are unacceptable to that person. Nor will perpetrators be able to force a
victim to do one type of work when they agreed to do work of a completely
different nature ... The new debt bondage offences are [also] available in any
circumstance where contracts for personal services are exploitative and
deception as to the quantum of a debt or purported debt would be a relevant
consideration in determining whether such circumstances existed.[33]
2.28
In its response to questions from the Committee, the
Attorney-General's Department agreed that the new offences in proposed section
271 were inconsistent with the amended deceptive recruiting offence in section
270 and should be amended to ensure deception as to each of the elements listed
in para. 2.23 above is covered.
It is agreed that the new offences in proposed section 271 do
not directly align with the amended deceptive recruiting offence in section 270
and that an amendment to ensure deception as to each of these elements is
covered in both sections may be appropriate.[34]
The Committee's view
2.29
On balance, the Committee is not persuaded that the
concerns raised by witnesses are appropriately addressed by the Bill.
The legislation which seeks to implement the Protocol should clearly and
unambiguously address all means by which traffickers recruit, transport,
harbour and receive their victims. As was stated by the Minister, 'Australia
has a moral obligation to ensure that it has every possible measure in place to
fight the trade in human beings.'[35]
Recommendation 3
2.30
The Committee recommends
that proposed sections 271.2 and 271.5 be amended to remove any doubt that they
apply to each of the means of trafficking listed in the definition of 'trafficking
in persons' contained in Article 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, Supplementing the United Nations Convention
Against Torture, United Nations, 2000.
Recommendation 4
2.31
The Committee recommends
that proposed subsection 270.7(1) be amended to include an express reference to
deception about the nature of sexual services a person will be required to
provide and to deception about the quantum of any debt or purported debt owed
or which will be owed by the person.
Recommendation 5
2.32
The Committee recommends
that proposed sections 271.2(2) and 271.5(2) be amended to include an express
reference to deception about:
- the
nature of sexual services a person will be required to provide;
- the
quantum of any debt or purported debt owed or which will be owed by the person;
- the
extent to which the person will be free to leave the place or area where the
person provides sexual services;
- the
extent to which the person will be free to cease providing sexual services; and
- the
extent to which the person will be free to leave his or her place of residence.
Not all forms of exploitation
covered?
2.33
Another concern raised in submissions was the apparent
failure of the Bill to cover adequately all the
forms of exploitation contemplated by the Protocol.[36] The Protocol defines exploitation to
mean 'at a minimum the exploitation of the prostitution of others or
other forms of sexual exploitation, forced labour or services, slavery or
practices similar to slavery, servitude or the removal of organs' (emphasis
added). As acknowledged by World Vision, this inclusive definition reflects the
fact that:
Trafficking is a
dynamic global crime and anti-trafficking laws need to be flexible and broad
enough to capture changing illicit markets and practices.[37]
2.34
In contrast, the Bill only
defines 'exploitation' in terms of 'slavery', 'forced labour' or 'sexual
servitude'.[38] The Bill
and the Criminal Code then set out what shall constitute 'slavery', 'forced
labour' or 'sexual servitude':
-
'Slavery' is defined essentially as the
condition of exercising the power of ownership over another person.[39]
-
'Forced labour' is the condition of a person who
provides labour or services (other than 'sexual services') and who, because of
the use of force or threats, is not free to cease providing labour or services
or to leave the place at which the labour or services are provided.[40]
-
'Sexual servitude' is defined as being limited to
the provision by a person of 'sexual services'.[41]
- 'Sexual services', for the purposes of the
above, is defined in turn to mean the commercial use or display of the body for
the sexual gratification of others.[42]
Failure to cover non-commercial sexual exploitation,
especially of children
2.35
This approach, it is claimed, does not adequately capture
non-commercial sexual exploitation (that is, forms of sexual exploitation which
are not paid for) as is required by the Protocol.[43] That is, non-commercial exploitation
is not caught by the definition of 'sexual servitude', which is limited to
sexual exploitation for a commercial purpose. Moreover, non-commercial sexual
exploitation may not always fit neatly within the specific definitions of
'slavery' or 'forced labour' in the Criminal Code. Exploitation can, for
example, occur without exploiters exercising 'ownership' over victims. Similarly,
the definition of 'forced labour' is also likely to pose problems for law
enforcement agencies and prosecutors. It is somewhat contradictory to argue
that non-commercial exploitation, especially sexual exploitation, constitutes a
form of labour. Another complication is the definition of 'forced labour'
expressly excludes 'sexual services'. As HREOC stated:
One might anticipate that defence lawyers would argue that
services or labour of a sexual nature are governed by a specific and exclusive
definition (inserted by item 15 of the Bill) and should not be held to be
within the wider definition of ‘forced labour.[44]
2.36
This apparent gap was seen to be a particular problem
in the case of child victims who may be trafficked for non-commercial sexual
exploitation or so-called personal use.[45]
2.37
Representatives of the Attorney-General's Department argued
at the hearing that non-commercial sexual exploitation could be addressed appropriately
under the proposed offences of trafficking by force, threats or deception or by
the proposed offence of trafficking in children.[46] Proposed section 271.4 provides for an offence
of trafficking in children where a person organises or facilities entry etc of
a child and intends or is reckless to the fact that the child will be used to
provide 'sexual services' or 'will be otherwise exploited'. The suggestion
being that 'otherwise exploited' would encompass non-commercial sexual
exploitation.
2.38
Other witnesses took issue with this response on a
number of grounds:
- The Bill's definition of 'exploitation' is limited
to 'slavery', 'forced labour' or 'sexual servitude'. As noted above, it is argued
that reliance on these concepts, as defined, to prosecute non-commercial sexual
exploitation will be problematic.
- The term 'otherwise exploited' in new section
271.4 is curtailed by the limited definition of 'exploitation' in the Bill.[47]
-
Reliance on the offences of trafficking by
force, threats or deception would not reflect the Minister's stated view that
trafficking offences involving children warrant relatively higher penalties.[48] The former offences attract a maximum
penalty of 12 years imprisonment in contrast to 20 years for the proposed
offence of trafficking in children.
- The proposed trafficking offences require proof
beyond a reasonable doubt that the consent of the victim (including a child
victim) was obtained by force, threat
or deception. In contrast, the
Protocol expressly states that these means of exploitation are irrelevant in
cases involving children and, moreover, the consent of the victim shall not be
made an issue.[49]
2.39
The different approach taken by the Protocol in respect
of children (that is, no need to prove coercion, consent etc) was also put
forward by World Vision as a justification to create additional, child specific
offences to deal with child trafficking, including child debt bondage, child
servitude and child slavery. In doing so, World Vision stressed the very different
nature of trafficking in children and the consequences for its victims:
... children are particularly
susceptible to trauma and injury from child trafficking and related crime, with
psychosocial and physical consequences that can last a lifetime. International
experience has shown that children are much more vulnerable to traffickers than
adults due to their reduced capacity to assess risk, to articulate and voice
their worries (know their rights and be able to negotiate them) and to look
after themselves (both basic needs and to protect themselves from abuse).[50]
Non
sexual exploitation - forced adoptions and marriages
2.40
World Vision expressed concern that the proposed
deceptive recruiting offence is unjustifiably narrow as it applies only to
sexual exploitation. In commenting on the exposure draft of the Bill,
World Vision had argued that the offence should criminalise deceptive
recruitment for any form of exploitation which may include, but is not limited
to, sexual exploitation. The Attorney-General's Department's response at that
time was also that the proposed trafficking offences could be used to prosecute
deceptive recruiting for non-sexual purposes.[51]
2.41
World Vision cited trafficking by forced adoptions or
servile marriages as two specific examples of forms of exploitation that were not
adequately covered by the Bill.[52] It urged the Committee to consider
recommending the amendment of the definition of 'exploitation' in the Bill
to include a reference to 'forced adoption and marriage'.
2.42
HREOC endorsed the need to amend the Bill.
HREOC advised the Committee that, in its view, the Bill
did not adequately address the issue of servile marriages.[53] According
to HREOC, the Protocol requires trafficking in servile marriages to be subject
to criminal sanctions and that, while not a widespread problem in Australia,
servile marriages remain of real concern internationally.[54]
2.43
HREOC acknowledged that some of the Bill's
offence provisions may cover this form of exploitation. The proposed
trafficking offences in subsections 271.2(1) and 271.5(1) of the Bill
may, for example, cover trafficking by servile marriages where it could be
established that the consent of a 'wife' to enter Australia
or to be transported within Australia
was procured by threat or force. Proposed paragraphs 271.2(2)(b) and
271.5(2)(b) could conceivably be applied as they include deception as to
'slavery' and 'forced labour'. However, HREOC noted that the internationally
accepted definition of 'servile marriage' is that it is a practice similar to
slavery (that is, it is not slavery per se) and has a different content to
'forced labour' as defined in the Bill.
Moreover, factors other than force, threats or deception do exist which may
operate to prevent a women leaving a servile marriage or a woman in such a
marriage agreeing to travel to or within Australia.
HREOC therefore concluded that it was unsafe to rely on the Bill's
existing provisions to address this form of exploitation.[55] In
reaching this conclusion, HREOC reiterated its view:
... the absence of a requirement for an exploitative
purpose and the inclusion of a requirement that the force or threats caused the
victim to consent [which] are significant and undesirable departures from the ...
Protocol.[56]
Response of the
Attorney-General's Department
2.44
In light of these concerns, the Committee asked the
Attorney-General's Department's whether and how the Bill
would criminalise the trafficking of adults and children for the purposes of
non-commercial sexual exploitation.
2.45
The Department's response was in essence that non-commercial
sexual exploitation was a matter for State and Territory Governments to address
under their laws. It was not a matter that the Commonwealth Government had to
address in the Bill in order to implement the
Protocol.[57]
2.46
However, in its response, the Department also advised that:
-
The 'strong'
measures contained in the Government's trafficking package applied equally to
all forms of trafficking and that these would 'ensure that the Government is
able to comprehensively combat trafficking in persons for all purposes'.[58]
-
The Bill would 'build on existing legislation to comprehensively criminalise all forms
of trafficking in persons' and that 'the ability of the Australian Government to ratify the Trafficking
Protocol is not linked to the enactment of complementary State or Territory
legislation.'[59]
-
Non-commercial sexual exploitation would caught
by the Bill. That is, that the trafficking in children offence in proposed section 270.4
would be available where the offender was 'reckless' as to the fact that the
trafficked child would be either 'used to provide sexual services' or
'otherwise exploited' by the offender or by another person, which the
Department suggested included 'a variety of conduct, including child
pornography.' The Department also noted that, where a trafficked person is
'forced' into marriage, it might constitute slavery under the existing
section 270.3 Criminal Code offence.[60]
2.47
In response to questions about concerns over the lack
of information available on which to base trafficking policy and legislation
for trafficking for non-sexual purposes, the Department also advised that 'the
Government will investigate currently available information and consider
options for further research and information gathering'.[61]
2.48
The Department also advised that it did not consider
that there was a need to create additional offences relating to children given
the provision in the Bill for offences when
children are trafficked domestically or internationally. These offences attract
a higher penalty and do not require proof of consent or of force or threats.[62]
The Committee's
view
2.49
The Committee's starting point is that, in the absence
of compelling reasons to the contrary, legislation seeking 'to comprehensively
criminalise all forms of trafficking in persons' ought to cover unambiguously all
forms of exploitation contemplated by the Protocol. After considering the
available evidence, the Committee is not persuaded this will be achieved by relying
on the proposed definition of 'exploitation'. Nor is it persuaded that non-commercial
sexual exploitation will be caught effectively and appropriately by the proposed
offences in the Bill or that this form of
exploitation can be safely left to the laws of State and Territory Governments,
which have yet to be consulted in respect of the specific provisions of the Bill.
As mentioned elsewhere in this report, the Committee's view is that the Bill
itself should be subject to further and wider consultation, including with
State and Territory Governments.
2.50
The Committee also notes with some disquiet World
Vision's evidence that, at a meeting with the Attorney-General's Department,
World Vision was advised that concerns as to whether the Bill
would cover all forms of exploitation or harm could be resolved by having the Bill's
Explanatory Memorandum or the Second Reading Speech detail examples of the matters
covered.[63]
2.51
The Committee in its reports has repeatedly expressed
its concern at the practice of relying on an Explanatory Memorandum or a Second
Reading Speech in an attempt to clarify matters instead of ensuring that the
proposed legislation itself provides the necessary clarity and guidance.
Problems of statutory interpretation and uncertainty can and do arise as a
result. This is especially true in the case of criminal laws such as the Bill. The Committee's concerns were borne out by
evidence that legal advice subsequently obtained by World Vision concluded that
the above-mentioned approach poses a legal risk in that those matters may not
be covered by the Bill. The preferred approach
was therefore to amend the Bill itself.[64] The Committee shares that view.
Recommendation 6
2.52
The Committee recommends that the Bill be amended to
adopt the definitions of the 'trafficking in persons' and 'exploitation'
contained in the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children,
Supplementing the United Nations Convention Against Torture, United Nations,
2000 As mentioned above, the Committee also recommends that the trafficking
offences be amended to include an element of a purpose of 'exploitation'.
Recommendation 7
2.53
The Committee recommends that proposed sections 271.2, 271.4,
271.5 and 271.7 be amended to remove any doubt that they apply to non-commercial
sexual exploitation.
Recommendation 8
2.54
The Committee recommends that the definition of 'exploitation'
in the Bill be amended to include an express
reference to servile marriages.
Debt
bondage not adequately covered?
2.55
Concerns were raised that the proposed definition of
'debt bondage' - and therefore the offences in the Bill
that rely on that definition - will not cover all the exploitative arrangements
used in trafficking. 'Debt bondage' is defined by the Bill
as 'a status or condition arising from the pledge of personal services as
security for debts where:
- the reasonable value of those services is not
applied toward the liquidation of the debt; or
- the length and nature of those services are not
defined or limited.'[65]
2.56
Submitters queried the utility of this definition.[66] The Australian Crime Commission, for
example, noted that the definition may not capture the exploitative aspects of the
contractual arrangement used in the trafficking of sex workers. The Commission advised
that its intelligence activities had identified that:
...
the reasonable value of the personal services rendered by a contracted
prostitute is likely to be applied in liquidation of the debt, and the duration
and the nature of the services is likely to be known by the contracted woman. The
exploitative feature of this arrangement is in the imposition of the up front
contract amount i.e. contracts are generally set at between $30,000-60,000 or
the corresponding number of sexual services, after an outlay of a
disproportionately lower amount to get the contracted female into Australia.[67]
2.57
The Commission therefore advised the Committee that
'further consideration of the drafting of this provision is required'.
2.58
The Commission, as did other submitters, also argued
that the penalty for debt bondage should be greater than the penalty provided
in the Bill (that is, a maximum of 12 months
imprisonment).[68] HREOC referred to
legislation in Canada
and the United States
with offences similar to the proposed debt bondage offence and which impose
maximum penalties of 10 to 20 years imprisonment. In HREOC's view, this
approach correctly recognised that more substantial penalties may be required
in some instances of debt bondage.[69]
Similar sentiments were expressed by Project Respect:
Debt bondage is as instrumental part in
the trafficking process as recruitment and transport as laid out in the
Trafficking Protocol. We therefore suggest that the term be lengthened to
reflect the seriousness of the crime and its significance in the trafficking
process.[70]
Response of the Attorney-General's Department
2.59
The Attorney-General's Department's response to the
concerns raised by the Australian Crime Commission was as follows:
The debt bondage offence operates where an offender causes a
victim to pledge (a) his or her personal services or (b) those of another
person as a security for a debt, where either (c) the reasonable value of those
services is not applied to the liquidation of the debt, or (d) the length and
nature of the services are not respectively limited or defined. ... Provided
either (c) or (d) is satisfied, excessive up front contract amounts [ie, the exploitative contracts of concern to the
Commission] would come within the debt bondage offence. However, where persons
enter into a contractual arrangement and neither of those elements is present, in
the absence of factors such as fraud or coercion, such contracts are not be
regarded under the Commonwealth’s legislative regime as ‘criminal’. This is the case even where the terms of that
contract appear unfair to one of the parties.[71]
2.60
The Attorney-General's Department explained that, in
its view, the exploitative contracts identified by the Commission would also
constitute 'forced labour' as defined in existing section 73.2 of the Criminal
Code and therefore be covered by existing and new offences.[72]
That is:
- the existing slavery offence (proposed
section 270.3);
- the existing sexual
servitude offence (proposed section 270.6);
- the new deceptive
recruiting offence (proposed section 270.7(1));
- the new offences of
trafficking in persons (proposed sections 271.2(2), 271.3,
271.6(2) and 271.6); and
- the new trafficking
in children offences (proposed sections 271.4 and 271.7).
2.61
The Department's response to concerns over the adequacy
of the penalty for proposed debt bondage offence was that:
The debt bondage offences are only intended to operate as an
alternative in cases where it may be difficult to prove the commission of one
of the more serious offences, such as slavery, which carries a penalty of
25 years imprisonment. Many
exploitative debt contract arrangements would be covered by the existing
slavery offence which specifically provides for situations arising out of ‘a
debt or contract made by the person’. (Section 270.1 of the Criminal Code.) As it is only intended
to cover the least serious instances of exploitative debt contracts, the
penalty for the debt bondage offence is 12 months imprisonment. There is a higher penalty where the victim is
under the age of 18 of 2 years imprisonment. Debt
bondage and trafficking in persons activity will often occur simultaneously,
and sentences may be imposed cumulatively.[73]
The Committee's view
2.62
The Committee notes that the evidence of the Australian
Crime Commission that exploitative contractual arrangements that impose
excessive up front contract amounts and which are manifestly unfair are being used
in the trafficking of sex workers. The Committee remains concerned that the
definition of debt bondage - and therefore the debt bondage offence provisions
- do not capture these arrangements where the reasonable value of those
services is applied to the liquidation of the manifestly unfair debt and
where the length and nature of the services are limited or defined. The
Committee also has some reservations in seeking to prohibit these exploitative
contracts under other offences in the Bill or the Criminal Code on the basis
that such contracts constitute ‘forced labour', 'slavery', 'sexual servitude'
and the like. It also notes that the Criminal Code's definition of 'forced
labour' expressly excludes the provision of sexual services for commercial
purposes. The Committee's view is that 'debt bondage' should extend to this
type of exploitative contract. It is noted that the Committee has also
recommended that State and Territory Governments be consulted on the provisions
of the Bill. These
Governments are responsible for the administration and enforcement of laws
governing prostitution in Australia.
Recommendation 9
2.63
The Committee recommends that the definition of 'debt
bondage' in Item 10 of the Bill be amended to
include a reference to exploitative contracts that impose excessive up front
contract amounts and which are manifestly unfair.
Discrepancies with domestic criminal law principles
2.64
Submissions argued that the proposed changes in the Bill
must not only comply with international law such as the requirements of the
Protocol, but that they fit within the existing domestic framework of criminal
law. In this regard, concerns were raised that the Bill's
provisions would lead to possible discrepancies with existing criminal law
principles.
Fault elements
2.65
The Castan Centre noted that the proposed offences in
the Bill do not use the usual words denoting
fault elements, such as 'intention' and 'recklessness'.[74] It therefore recommended that the
words 'intentionally or recklessly' be included in the offence provisions.[75] The Centre also recommended that the
new trafficking in children offences in proposed section 271.4 and 271.7 be
amended to include the fault element of knowledge that the person trafficked is
under 18 years of age.
2.66
The Attorney-General's Department advised that section
5.6 of the Criminal Code specifies whether the fault elements of intention or
recklessness will apply to the offences. Section 5.6 will operate, for example,
to apply the fault element of recklessness to the new aggravated offences
dealing with cruel, inhuman or degrading treatment.[76] That is, an offender will be guilty of
these offences if the prosecution can prove the offender was aware of a substantial
risk that the victim would be subjected to cruel, inhuman or degrading
treatment.
2.67
The Attorney-General's Department also advised
that including a fault element of 'knowledge' of age in the new trafficking in
children offences could result in a person avoiding liability through
deliberate disregard as to whether the person trafficked was a child. To avoid
this risk, the Bill applies the fault element of recklessness. That is, an offender will be guilty of the
offence if the prosecution can prove the offender was aware of a substantial
risk that the victim was a child.[77]
Application of Division 11 of
the Criminal Code
2.68
The Castan
Centre queried how the Bill's proposed trafficking offences, which refer to 'organising'
and 'facilitating', would relate to Division 11 of the Criminal Code. It was
concerned that these offences may encroach on Division 11, which criminalises
attempts, incitement and conspiracy to commit the offences contained in the
Code. The Centre noted that the application of Division 11 to the trafficking
offences would create the offences of attempting or conspiring to 'organise' or
'facilitate' entry, receipt of transportation.[78]
2.69
The
Attorney-General confirmed that Division 11 of the Criminal Code would apply to
the trafficking offences contained in the Bill. These require the prosecution to prove
beyond reasonable doubt that the offender either organised or facilitated an
entry or receipt. In the event that the conduct in question only amounts, for
example, to conspiring or attempting to organise or facilitate the entry or
receipt of a person, the offender can be charged with the appropriate
Division 11 offence, and sentenced accordingly.[79]
Jurisdiction too narrow?
2.70
The
Castan Centre argued that the offences in the Bill had a too narrow geographical reach. Instead,
a broad, universal geographical jurisdiction was required - in line with the 'global'
approach taken by the Protocol. This would be consistent with other Commonwealth
offences in respect of terrorism, child sex tourism, war crimes and crimes
against humanity. These have 'Category D jurisdiction' under the Criminal Code,
which means that a person can be prosecuted under Australian law irrespective
of whether the conduct constituting the alleged offence, or the result of that
conduct, occurs in Australia.[80]
The Centre was concerned that the Bill may
not criminalise conduct involving the trafficking of people into Australia by foreign nationals and did not appear to
apply where Australian nationals or corporations traffick people outside Australia.[81]
2.71
The
Attorney-General Department's response was that the Bill criminalises trafficking conduct that
relates to the entry or receipt into Australia and the transportation of persons within Australia by any person, including foreign nationals. It also noted that the Bill applies Category B jurisdiction to new offences
of sexual servitude and deceptive recruiting for sexual services in amended sections
270.6 and 270.7. This means that they will have a wide geographical reach,
including outside Australia.[82]
2.72
The
Department advised that Category D offences are generally restricted to the
most serious international offences, such as genocide, crimes against humanity
and war crimes in the Criminal Code, for which specific resources are available
for investigations and prosecutions. It also pointed out that there are
many very serious crimes under Commonwealth law to which Category D jurisdiction
has not been applied.[83]
Need for additional offences to
deal with harm to victims
2.73
Witnesses
also argued that the Bill
should contain specific offences dealing with situations where, as part of
trafficking, a victim suffers egregious or gross harm.[84] Examples
cited included trafficking victims being raped, contracting HIV / AIDs,
becoming pregnant, undergoing forced abortions, or suffering psychiatric
illness as a consequence of their exploitation.[85]
2.74
In
response, the Attorney-General's Department advised the Criminal Code's
definition of 'serious harm' would include each of the examples of harm cited
by witnesses. As such, they would also be covered by the aggravated offences
provided in the Bill. These apply where an offender's conduct has
subjected the victim to cruel, inhuman or degrading treatment or otherwise gave
rise to a danger of death or 'serious harm' to the victim. It was also noted that the prosecution is
only required to prove beyond a reasonable doubt that that conduct gave rise to
a danger of serious harm, and the trafficker was reckless as to that danger.[86]
2.75
HREOC
also noted that the position of children is dealt with separately in the new
trafficking in children offence in proposed section 271.4, which attracts the
same penalty as the Bill's aggravated offences.[87]
2.76
The Criminal
Code defines 'harm', 'harm to a person's mental health', and
'serious harm' in the following terms:
harm means physical harm or harm to a person's mental
health, whether temporary or permanent. However, it does not include being
subjected to any force or impact that is within the limits of what is
acceptable as incidental to social interaction or to life in the community.
harm to a person's mental health includes significant
psychological harm, but does not include mere ordinary emotional reactions such
as those of only distress, grief, fear or anger.
physical harm includes
unconsciousness, pain, disfigurement, infection with a disease and any physical
contact with a person that the person might reasonably object to in the
circumstances (whether or not the person was aware of it at the time).
serious harm means harm (including the cumulative effect
of any harm):
(a) that endangers, or is likely to endanger, a person's life; or
(b) that is or is likely to be
significant and longstanding.[88]
The use of absolute liability in offence provisions
2.77
Concerns
were raised over the use of absolute liability in the Bill's proposed trafficking in persons offences.[89] Proposed subsections 271.2(3) and
271.5(3) provide that 'absolute liability' shall apply in respect of the
element in each offence that the use of force or threats by the perpetrator
resulted in the victim giving consent. According to the Explanatory Memorandum,
this removes the requirement that the prosecution must prove a fault element
for that element. It also means the defence of mistake of fact will be unavailable
to defendants charged with the offence.[90]
All the prosecution must therefore establish is that the defendant's intentional
use of force or threats actually resulted in the defendant obtaining the
victim’s consent to the entry, receipt or transportation. It need not establish
that the defendant was aware that the force or threats resulted in that
consent.
2.78
Scarlet Alliance criticised this approach as 'a short sighted
breach of human rights' which 'may result in unfair application of this law'.[91] The Castan Centre also argued that the
proposed use of absolute liability made no sense as 'a fault element is
irrelevant to whether or not a person's consent resulted from the use of force
or threats'. The Centre's view was that the use of absolute liability was 'nonsensical
and should be omitted'.[92]
2.79
These
concerns were put to the Attorney-General's Department. It maintained that absolute
liability was necessary, especially given the need for deterrence. It advised
that, if the prosecution were required to prove the defendant was aware that
the force or threats would result in the victim’s consent, many defendants
would be able to escape liability by showing that they did not turn their minds
to, or were reckless to, that issue. The Department noted that absolute
liability is applied only in a limited way to particular elements in two
offences where the offender has intentionally used force or threats. There will
still be a requirement to prove beyond reasonable doubt that the trafficker
used force or threats against the victim, and that those threats or that force
resulted in the victim consenting to the entry or proposed entry to Australia.[93]
Definition of deceives
2.80
The Castan
Centre drew the Committee's attention to two apparent problems with the
definition of 'deceives' contained in proposed section 271.1. It noted that the
section did not refer to a fault element, which appeared at odds with the
Criminal Code's existing definition of 'deception'. It refers to 'an
intentional or reckless' deception.[94]
The proposed definition also does not apply to amended subsection 270.7(1) of
the Criminal Code which contains a reference to 'deceives'.[95]
2.81
The
Attorney-General's Department explained that the definition of 'deceive' in the
Bill relates to the new trafficking offences in proposed
subsections 271.2(2) and 271.5(2) of the Bill. The
Criminal Code fault elements will apply to these offences and are therefore not
repeated in the definition.[96]
2.82
However,
the Department did agree that:
Division 270 of the Code should be amended to include the same definition
of ‘deceive’ that the Bill includes in proposed
Division 271.[97]
Legitimate employment
arrangements unintentionally criminalised?
2.83
Scarlett
Alliance raised concerns that the provisions of the Bill, particularly in relation to debt bondage
and domestic trafficking, could result in the explicit targeting of workers in the
legal sex industry and the criminalisation of legitimate employment
arrangements which are not unfair or exploitative.[98] This, it suggested, was due in part to
the Bill's focus on 'sexual services' in seeking to
address trafficking. This was considered unnecessary in that sex work is treated
as a subset of 'labour' by the Protocol. That is, forced or coerced adult sex
work is covered by the Protocol in the context of slavery, forced labour or
servitude. As such, it is not necessary for the Bill to refer specifically to sexual labour in
order to comply with the Protocol.[99] Exploitation
in Australia's legalised or decriminalised sex industry
should therefore be addressed in the same manner as exploitation in other
industries.[100]
The Committee's view
2.84
The
Committee agrees that the Bill should be amended to include in Division
270 of the Criminal Code the same definition of 'deceive' that the Bill
currently includes in proposed Division 271.
2.85
After careful consideration of the conflicting
positions of the Attorney-General's Department and of the above-mentioned
submitters, the Committee considers that the concerns outlined above, although
important, do not warrant specific recommendations to amend the Bill.
2.86
In respect of absolute liability, the Committee considers
that, on balance, there would be a need for the use of absolute liability in
the manner proposed. However, the Committee has recommended that any reference
to consent be omitted from the relevant sections. A consequence will be the
removal of any requirement for absolute liability.
2.87
The
Committee has recommended that the Bill be subject to further and more extensive
consultation, including with State and Territory Governments. In the course of
this consultation, further consideration can be given to the implications of
the debt bondage and domestic trafficking provisions to sex workers in State
and Territory jurisdictions which have legalised or decriminalised prostitution.
Recommendation 10
2.88
The Committee recommends that the Bill should be
amended to include in Division 270 of the Criminal Code the same definition of
'deceive' that the Bill currently includes in proposed Division 271.