Revised Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs Senator the Honourable Amanda Vanstone)Notes on items
Item 1 Short Title
13. This is a formal item which provides for the citation of the Bill.
Item 2 Commencement
14. The Bill commences 28 days after the day on which it receives the Royal Assent.
Item 3 Schedules
15. This item explains that the Acts specified in the schedules to this Bill are amended or repealed as set out in the items in each schedule.
Schedule 1 Amendment of the Criminal Code Act 1995
Item 1 Division 270 - Slavery, Sexual Servitude and Deceptive Recruiting
16. This item inserts new Division 270 in the Criminal Code Act 1995. The provisions of the new Division are as follows.
Clause 270.1 Definition of Slavery
17. This clause defines the term 'slavery' for the purposes of new Division 270, as "the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person".
18. The definition is modelled on the definition of 'slavery' in the 1926 International Convention to Suppress the Slave Trade and Slavery and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, to which Australia is a party.
19. Whether a person is a slave for the purposes of this Division is a matter to be determined by the courts on a case by case basis. However, slavery is more than merely the exploitation of another. It is where the power a person exercises over another effectively amounts to the power a person would exercise over property he or she owns.
20. This power can arise in a variety of ways but the concluding words of the definition have been added to make it clear that, depending on the circumstances, it could also arise from a debt owed or contract entered into by the enslaved person.
Clause 270.2 Slavery is Unlawful
21. This clause relates to item 1 of Schedule 2 of the Bill and makes it clear that slavery will remain unlawful and its abolition maintained after the Imperial Acts relating to slavery have been repealed.
22. This clause creates the slavery offences under the Bill. All the offences in this clause apply whether the criminal conduct occurs inside or outside Australia.
23. Paragraph (1)(a) makes it an offence for a person to intentionally possess a slave or exercise over a slave any of the other powers attaching to the right of ownership.
24. Section 5 of the Criminal Code defines the standard fault elements that may apply in an offence including 'intention', 'knowledge' and 'recklessness'. For this offence a defendant will be taken to 'intentionally' possess a slave or exercise a power of ownership over a slave if the defendant 'means' to engage in that conduct (see subsection 5.2(1) of the Criminal Code ). If, for example, the defendant does not mean to exercise a power of ownership over a slave, the fault element for that offence will not be satisfied and the defendant will not commit the offence.
25. The notion of 'possession' has an accepted judicial meaning of 'control'. A person would possess another if the other is under that person's physical dominion or control. However, the focus is on the practical capacity for control, rather than the mere geographical nexus. One or more persons may possess another person.
26. Paragraph (1)(b) makes it an offence for a person to intentionally engage in slave trading. The term 'slave trading' is defined in subclause (3) as including (a) the capture, transport or disposal of a person with the intention of reducing the person to slavery or (b) the purchase or sale of a slave.
27. Paragraph (1)(c) makes it an offence for a person to intentionally enter into a commercial transaction involving a slave. This offence is similar to the offence in subparagraph (2)(a)(i) except that the applicable fault element is intention and not recklessness. To establish the fault element for this offence it must be shown that the defendant meant to enter a commercial transaction that involved a slave.
28. Paragraph (1)(d) makes it an offence for a person to intentionally exercise control or direction over or provide finance for an act of slave trading or any commercial transaction involving a slave. This offence is similar to the offences in subparagraphs (2)(a)(ii) and (iii) except that the applicable fault element is intention and not recklessness.
29. The maximum penalty a court can impose for each of the offences in subclause (1) is 25 years imprisonment and or $165,000.00 for an individual and $825,000.00 for a corporation. This is considerably higher than the maximum penalty for the offences in paragraph 2(a) because the defendant is intentionally involved in the victim's enslavement and not only recklessly involved.
30. Subparagraph (2)(a)(i) makes it an offence for a person to enter into a commercial transaction, reckless as to whether the transaction involves a slave or slavery. The offence is similar to the offence in paragraph (1)(c) except that the applicable fault element is recklessness and not intention.
31. In relation to this offence a defendant will be taken to be "reckless" if she or he is aware of a substantial risk that the commercial transaction involves a slave or slavery, and having regard to the circumstances known to the defendant it is unjustifiable to take that risk (subsection 5.4(1) and (2) of the Criminal Code ). The question whether taking a risk is unjustifiable is one of fact (subsection 5.4(3) of the Criminal Code ).
32. Subparagraph (2)(a)(ii) makes it an offence for a person to exercise control or direction over, or provide finance for any commercial transaction involving a slave, reckless as to whether the transaction involves a slave or slavery.
33. For this offence a defendant will be taken to be "reckless" if she or he is aware of a substantial risk that the commercial transaction involves a slave or slavery and having regard to the circumstances known to the defendant it is unjustifiable to take that risk (subsection 5.4(1) and (2) of the Criminal Code ). The question whether taking a risk is unjustifiable is one of fact.
34. Subparagraph (2)(a)(iii) makes it an offence for a person to exercise control or direction over, or provide finance for an act of slave trading, reckless as to whether the act is an act of slave trading. A defendant will be taken to be "reckless" in relation to this offence if she or he is aware of a substantial risk that the act is an act of slave trading and having regard to the circumstances known to the defendant it is unjustifiable to take that risk (subsection 5.4(1) and (2) of the Criminal Code ). The question whether taking a risk is unjustifiable is one of fact
35. The maximum penalty a court can impose for each of the offences in subclause (2) is 17 years imprisonment and or $112,200.00 for an individual and $561,000.00 for a corporation. This is considerably lower than the maximum penalty for the offences in subclause (1) because the defendant is recklessly involved in the victims enslavement and not intentionally involved.
36. The term 'slave trading' is defined in subclause (3) of this provision as including (a) the capture, transport or disposal of a person with the intention of reducing the person to slavery or (b) the purchase or sale of a slave.
37. The definition is inclusive so that other conduct that amounts to slave trading but not expressly covered by the definition would be caught by the slave trading offence.
38. Subclause (4) provides that a person is not guilty of a slavery offence if he or she engages in any relevant conduct with the intention of releasing a person from slavery.
39. Subclause (5) casts the legal burden on the defendant to prove that she or he engaged in the relevant conduct with the intention of releasing the person from slavery. That is, to establish the defence the defendant must prove on the balance of probabilities that her or his intention was to release the person (see section 13.5 of the Criminal Code ).
Clause 270.4 Definition of Sexual Servitude
40. This clause defines terms for the purposes of the offences in clause 270.6 of the Bill.
41. The central element of the sexual servitude offences is the element of 'sexual servitude'. The term is defined in subclause (1) of this provision as the condition of a person who provides sexual services and who, because of the use of force or threats is not free (a) to cease providing sexual services; or (b) to leave the place or area where the person provides sexual services.
42. The opening words of subclause (1) of this provision make it clear that for the purposes of the relevant offences under the Bill 'sexual servitude' will only arise if one of the two specified manifestations of sexual servitude is brought about by the use of force or threats. Further, the definition of 'sexual service' in subclause (2) makes it clear that sexual servitude can only arise in connection with the provision of commercial sexual services.
43. The force or threats need not be against the sex worker but may be against another person, such as the sex worker's child.
44. The difference between slavery and servitude in the Bill is essentially one of degree. To establish slavery it must be shown that the accused exercises a power of ownership over the victim. Servitude falls short of ownership but the domination over the victim is such as to effectively deny her or his freedom in some fundamental respects. In relation to the sexual servitude offences in the Bill it is only if the victim's freedom is denied in respect of one of the two matters listed in this subclause that an offence is committed.
45. Whether a person is 'not free' in relation to the matters specified in the definition will be determined on the facts of each case and in the context of the mischief the legislation is directed against; namely, sexual 'servitude'. The fact that a person may suffer a penalty under the terms of a typical employment contract would not of itself amount to being 'not free'. It is only if the force or threats effectively denies the person her or his freedom in relation to the two specified matters that sexual servitude can be made out. In borderline cases, where there is doubt about whether a person is 'not free' in relation to the matters listed in the definition, it is expected that the courts will resolve the matter in favour of the defendant.
46. Subclause (2) defines 'sexual service' as the commercial use or display of the body of the person providing the service for the sexual gratification of others. Therefore, sexual servitude can apply to sex work generally and not just to prostitution. Further, it is only if the sexual services are provided in a commercial context that the definition of sexual servitude can apply.
47. Subclause (2) also provides an expanded definition of 'threat', to include (a) a threat of force; (b) a threat to cause a person's deportation; or (c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person.
48. Whether there are reasonable grounds for a threat of detrimental action is a question of fact to be determined in the circumstances of each case. However, even if there are no reasonable grounds for a threat, sexual servitude will not be made out unless the circumstances are such that the threat effectively denies the person her or his freedom in relation to one of the two matters listed in the definition of sexual servitude.
Clause 270.5 Jurisdictional Requirements
49. This clause sets out the jurisdictional requirements for establishing a sexual servitude offence under clause 270.6 and a deceptive recruiting offence under clause 270.7.
50. The sexual servitude and deceptive recruiting offences can only be made out if all the elements of subclause 270.5(a) or subclause 270.5(b) or subclause 270.5(c) are satisfied. That is, the offences only apply if (a) the relevant conduct is engaged in entirely outside Australia, the sexual services are provided, or to be provided. entirely outside Australia and the offender is an Australian citizen or resident, a corporation incorporated under Commonwealth, State or Territory law or a corporation which carries on its activities principally in Australia; or (b) the relevant conduct is to any extent engaged in outside Australia and the sexual services are to any extent provided, or to be provided, in Australia; or (c) the relevant conduct is to any extent engaged in inside Australia and the sexual services are to any extent provided, or to be provided, outside Australia.
51. If the conduct and sexual services take place entirely within Australia, the offences under clauses 270.6 and 270.7 will not apply. This is because those offences are intended to form part of a package of Commonwealth, State and Territory offences to deal with the problem. State and Territory offences, corresponding to the offences in clauses 270.6 and 270.7, are intended to apply where the conduct and sexual services take place wholly within Australia.
Clause 270.6 Sexual Servitude Offences
52. This clause sets out the terms of the offences relating to sexual servitude.
53. Subclause (1) makes it an offence for a person to engage in conduct that causes another to enter into or remain in sexual servitude if the person intends to cause or is reckless as to causing the other person's sexual servitude.
54. The fault elements of 'intention' and 'recklessness' are defined in sections 5.2 and 5.4 of the Criminal Code. In relation to this offence 'intention' would be made out if, by engaging in the relevant conduct, the defendant 'means' to bring about the person's entry into or continuing sexual servitude or is aware that the sexual servitude will occur in the ordinary course of events (see subsection 5.2(3) of the Criminal Code ). A defendant will be taken to be "reckless" if she or he is aware of a substantial risk that her or his conduct will cause the person to enter into or remain in sexual servitude and having regard to the circumstances known to the defendant it is unjustifiable to take that risk (subsection 5.4(1) and (2) of the Criminal Code ). The question whether taking a risk is unjustifiable is one of fact (subsection 5.4(3) of the Criminal Code ). Further, by virtue of subsection 5.4(4) of the Criminal Code if a defendant actually intends or knows that the person will or will continue to be engaged in sexual servitude the element of recklessness will be made out.
55. This provision would not only catch those directly involved in bringing about a person's entry into, or continuing sexual servitude (such as procurers and brothel operators), it would also catch those indirectly involved, provided their conduct is such as to constitute a 'cause' of the entry into or continuing sexual servitude (and they have the requisite fault element). Although the concept of causation in the criminal law is complex, it is a notion which is familiar to the courts. The connection must be sufficiently strong to justify attributing criminal responsibility to the conduct (Royall v the Queen (1991)
172 CLR 378
).
56. The maximum penalty a court can imposed for this offence depends on whether it is an aggravated offence or not. Clause 270.8 sets out the requirements for establishing an aggravated offence. Essentially, the offence will be an aggravated offence if it is committed against a person under the age of 18.
57. If the contravention of this provisions is an aggravated offence, the maximum penalty a court can impose is 19 years imprisonment and or $125,400.00 for a natural person and $627,000.00 for a corporation. In any other case, the maximum penalty is 15 years imprisonment and or $99,000.00 for a natural person and $495,000.00 for a corporation.
58. Subclause (2) makes it an offence for a person to conduct any business that involves the sexual servitude of another if the person knows or is reckless as to whether the business involves the sexual servitude of other persons. This is an important offence directed at the principals involved in this activity, namely the organisers, managers and financiers of the trade. The term 'conducting a business' is defined for the purposes of this offence in subclause (3) of this provision.
59. The fault element of 'knowledge' is defined in section 5.3 of the Criminal Code. In this offence a defendant will be taken to 'know' that the business she or he conducts involves the sexual servitude of another person, if the defendant is aware that the sexual servitude exists or will exist in the ordinary course of events. A defendant will be taken to be 'reckless' if she or he is aware of a substantial risk that the sexual servitude exists or will exist in the business she or he conducts and having regard to the circumstances known to the defendant it is unjustifiable to take that risk (subsection 5.4(1) and (2) of the Criminal Code ).
60. If the contravention of this provision is an aggravated offence the maximum penalty a court can impose is 19 years imprisonment and or $125,400.00 for a natural person and $627,000.00 for a corporation. In any other case the maximum penalty is 15 years imprisonment and or $99,000.00 for a natural person and $495,000.00 for a corporation
61. Subclause (3) defines 'conducting a business' to include (a) taking any part in the management of the business; or (b) exercising control or direction over the business; or (c) providing finance for the business. The definition is inclusive so that other conduct that amounts to conducting a business but not expressly covered by the definition would be caught by the offence in subclause (2).
Clause 270.7 Deceptive Recruiting for Sexual Services
62. This clause sets out the terms of the offence relating to deceptive recruiting for sexual services.
63. Subclause (1) makes it an offence for a person to intentionally induce another to enter into an engagement to provide sexual services by deceiving the other that the engagement will involve the provision of sexual services. The term 'sexual services' is defined in subclause (2) of this provision.
64. It is not necessary for this offence to establish that the sexual services will be provided under conditions of 'sexual servitude'. The provision is directed against those who recruit sex workers by misleading them about the fact that they will be employed to provide sexual services. For example, where a defendant tells a potential recruit that she will be employed as a waitress when in fact she is being recruited to work as a prostitute.
65. The fault element that applies to this offence is 'intention' with respect to inducing the person to enter into the engagement and also 'intention' with respect to deceiving the person about the fact that the engagement will involve the provision of sexual services. A defendant will be taken to intentionally induce and deceive a person for the purposes of this offence if the person 'means' to induce and deceive the person in respect of the matters referred to in the provision (see subsection 5.2(1) of the Criminal Code ).
66. Deception is a concept that is well understood in the criminal law. Essentially it involves inducing a person to believe that a thing is true which is false. The representation can be in the form of words or conduct but silence by itself will normally not constitute a deception.
67. If the contravention of this provision is an aggravated offence the maximum penalty a court can impose is 9 years imprisonment and or $59,400.00 for a natural person and $297,000.00 for a corporation. In any other case the maximum penalty is 7 years imprisonment and or $46,200.00 for a natural person and $231,000.00 for a corporation.
68. Subclause (2) defines 'sexual services' as the commercial use or display of the body of the person providing the service for the sexual gratification of others. Therefore, the deceptive recruiting offence will apply if the recruit is deceived into entering an engagement that will involve sex work generally and not just to prostitution.
Clause 270.8 Aggravated Offences
69. This clause sets out the requirements of establishing an aggravated offence
70. Subclause (1) provides that a contravention of the sexual servitude and deceptive recruiting offences in clauses 270.6 and 270.7 is an aggravated offence if the person against whom the offence is committed is under 18 years of age.
71. Subclause (2) provides that if the prosecution intends to prove an aggravated offence, the charge must allege that the offence was committed against a person under the age of 18 years.
72. Subclause (3) provides that to establish an aggravated offence the prosecution must prove that the Defendant intended to commit or was reckless as to committing the offence against a person under the age of 18 years.
73. For the purposes of establishing the aggravated offences a defendant will be taken to 'intend' to commit a sexual servitude or deceptive recruiting offence against a person under the age of 18 years if the defendant believes that the person is under that age (see subsection 5.2(2) of the Criminal Code ). A defendant will be taken to be "reckless" if she or he is aware of a substantial risk that the person against whom the offences are being committed is under 18 years of age and having regard to the circumstances known to the defendant it is unjustifiable to take that risk (subsection 5.4(1) and (2) of the Criminal Code). By virtue of subsection 5.4(4) of the Criminal Code if a defendant actually intends or knows that the person is under 18 years of age recklessness will be made out.
Clause 270.9 Alternative Verdict if Aggravated Offence not Proved
74. This clause provides that if, on a trial for an aggravated offence against clause 270.6 or 270.7, the jury is not satisfied that the defendant committed the aggravated offence but is satisfied that the defendant is guilty of the non aggravated offence the jury may find the defendant not guilty on the aggravated offence and guilty on the non aggravated offence.
Clause 270.10 No Nationality Requirement
75. This provision makes it clear that the slavery, sexual servitude and deceptive recruiting offences can be committed by non nationals as well as Australian citizens and residents. However, there is an exception with regard to the sexual servitude and deceptive recruiting offences. If the criminal conduct takes place entirely outside Australia and the sexual services are provided or to be provided entirely outside Australia, those offences can only be committed by Australian citizens or residents, corporations incorporated under Commonwealth, State or Territory law, or corporations which carry on their activities principally in Australia.
Clause 270.11 Attorney-General's Consent Required
76. This clause provides that the written consent of the Attorney-General is required before a non-Australian citizen or resident can be prosecuted for a slavery, sexual servitude or deceptive recruiting offence, if the relevant conduct occurs entirely or partly outside Australia. This recognises the political sensitivity of the offences created by this Division, as well as their possible international implications.
77. Subclause 2 provides that a person may be arrested, charged, remanded in custody or released on bail notwithstanding that the consent of the Attorney-General has not been obtained.
Clause 270.12 Other Laws Not Excluded
78. This provision preserves the operation of any other law of the Commonwealth or any law of a State or Territory with respect to this new Division.
79. This provision makes it clear that a person is not liable to prosecution for an offence against this Division for conduct for which he or she has already been convicted or acquitted in another country for offences against the law of that country.
Clause 270.14 External Territories
80. This provision defines the term 'Australia' to include the external Territories.
Item 2 The Dictionary in the Criminal Code
81. This item inserts a definition of 'sexual servitude' in the dictionary of the Criminal Code by providing that that term has the meaning it has in clause 270.4.
Item 3 The Dictionary in the Criminal Code
82. This item inserts a definition of 'slavery' in the dictionary of the Criminal Code by providing that that term has the meaning it has in clause 270.1.
Schedule 2 Repeal of Imperial Acts
Item 1 Repeal of Certain Imperial Acts Relating to Slavery
83. This item repeals certain Imperial Acts relating to slavery that still apply in Australia.