House of Representatives

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs Senator the Honourable Amanda Vanstone)

General outline and financial impact

General outline

The purpose of this Bill is to insert new Division 270 in the Criminal Code Act 1995, which will create offences relating to slavery, sexual servitude and deceptive recruiting for sexual services. The new Division will be inserted in Chapter 8 of the Criminal Code, which is the chapter relating to crimes against humanity.

2. The law in Australia on slavery is currently based on four 19th century Imperial Acts which employ archaic language and relate to outdated circumstances and institutions that have either changed or fallen into disuse. In 1990 the Australian Law Reform Commission recommended that the Imperial Acts be replaced with modern and concise Commonwealth offences on slavery. The slavery offences in the Bill are based on the recommendations of the Australian Law Reform Commission.

3. Clauses 270.1 to 270.3 of the Bill relate to the new slavery offences. Clause 270.3 of the Bill creates offences of possessing a slave or exercising a power of ownership over a slave, engaging in slave trading, entering into a commercial transaction involving a slave and exercising control or direction over, or providing finance for, a commercial transaction involving a slave or an act of slave trading.

4. As this activity usually occurs across international boundaries, the slavery offences will apply whether the conduct occurs inside or outside Australia and whether or not the offender is an Australian national. The maximum term of imprisonment for the slavery offences is 25 years (where the fault element is intention) and 17 years (where the fault element is recklessness).

5. The sexual servitude and deceptive recruiting offences in the Bill are based on model provisions developed by the Model Criminal Code Officers' Committee of the Standing Committee of Attorneys-General. It is intended that the sexual servitude and deceptive recruiting offences in the Bill will form part of a package of Commonwealth, State and Territory offences relating to sexual servitude and deceptive recruiting.

6. The term 'sexual servitude' is defined in Clause 270.4 so that it only applies in relation to the provision of commercial sexual services. Clause 270.6 creates offences of causing a person to enter into or remain in sexual servitude, and conducting a business that involves the sexual servitude of other persons.

7. In addition to the slavery and sexual servitude offences clause 270.7 will make it an offence to recruit a sex worker by deceiving her or him about the fact that the work will involve providing sexual services. It is not necessary for this offence to establish that the sexual services will be provided under conditions of 'sexual servitude'.

8. Clause 270.8 provides that if a sexual servitude or deceptive recruiting offence is committed against a person under the age of 18, the offence is an aggravated offence, for which a higher maximum penalty applies. However, if a person is tried for an aggravated offence and the jury is not satisfied that the aggravated form of the offence was committed, it may still find the defendant guilty of the non aggravated offence.

9. The maximum term of imprisonment for the sexual servitude offences is 19 years imprisonment if the contravention is an aggravated offence and 15 years imprisonment if it is not. The maximum term of imprisonment for the deceptive recruiting offence is 9 years imprisonment if it is an aggravated offence and 7 years imprisonment if it is not.

10. Clause 270.5 provides that the sexual servitude and deceptive recruiting offences will 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 some 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.

11. The proposed corresponding State and Territory offences will operate where the criminal conduct and sexual services take place entirely within Australia. Also, like the slavery offences, the Commonwealth sexual servitude and deceptive recruiting offences will generally apply to the extra-territorial conduct of both nationals and non nationals (provided that, in relation to non-nationals, there is an appropriate nexus to Australia).

Financial Impact

12. It is not anticipated that the Bill will have a financial impact on Government expenditure. The costs of any prosecutions will come from the budgetary allocations for the Australian Federal Police and the Office of the Director of Public Prosecutions, which will be conducting investigations and prosecutions under the proposed legislation.