House of Representatives

Addendum to the Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Nicola Roxon MP)

Notes on clauses

Schedule 1 - Criminal Code Amendments

Item 8

Section 270.1A - Definitions for Division 270

Coercion

After "As a result of this Item, the term ' coercion ' is defined for the purposes of Division 270 of the Criminal Code to include coercion by force, duress, detention, psychological oppression, abuse of power, or taking advantage of a person's vulnerability." on page 9, insert the following paragraph:

"Currently, a number of the offences criminalising people trafficking, slavery, and slavery-like practices in Divisions 270 and 271 of the Criminal Code apply where a person uses force or threats in order to obtain a victim's compliance. However, it is arguable that the terms 'force' and 'threats' do not capture the range of coercive conduct through which a trafficker may gain a victim's compliance. As such, a broadly drafted, non-exhaustive definition of 'coercion' is appropriate and necessary to ensure that our criminal law remains effective and responsive to emerging trends."

After "The new definition of coercion is intended to be a non-exhaustive list capturing both physical and non-physical coercive conduct, including the more subtle means by which offenders obtain a victim's compliance." on page 10, insert the following paragraphs:

"The definition of 'coercion' has intentionally been drafted to be broad and non-exhaustive in order to supplement the existing framework and ensure the broadest possible range of exploitative behaviour is captured and criminalised.

Importantly, the prosecution will still be required to prove the elements of the relevant offence beyond a reasonable doubt. For example, in order to make out the forced labour offence at subsection 270.6A(1) of the Criminal Code, the prosecution would not only be required to prove that the victim was in a condition of forced labour as a result of coercion, threat or deception, but also the elements of the offence, namely:

(a)

that the defendant intentionally engaged in conduct; and

(b)

that the defendant was reckless as to the fact that that conduct would cause the victim to enter into or remain in forced labour."

Item 12

Subsection 270.7B(2) - Being a party to a forced marriage

After "The defendant bears the evidential burden of pointing to evidence which would establish the defence of reasonable excuse for entering into the forced marriage. The burden of proof lies with the defendant as the elements needed to establish a reasonable excuse would likely be peculiarly within the knowledge of the defendant, and it would be significantly more difficult for the prosecution to disprove than for the defendant to establish. For example, the discussions that the defendant has been privy to, and their reasoning for entering the marriage, may only be known by the defendant." on page 27, insert the following paragraph:

"The reasonable excuse defence is cast in broad terms, as it is difficult to predict the situations which may arise in which the defence could apply.  The framing of the defence gives courts scope to interpret and apply the defence in response to the facts of particular cases."

Item 38

Section 271.7F - Harbouring a victim

After "Pursuant to new subsection 271.7F(3), absolute liability applies to paragraph 271.7F(1)(c) of the Criminal Code - the fact that the 'third person offence' is an offence against Division 271 (apart from the new offence of harbouring a victim itself) or Division 270 of the Criminal Code. The application of absolute liability to this element of the offence means that there is no fault element for the physical element at new subsection 271.7F, and that the defence of mistake of fact under section 9.2 of the Criminal Code would not be available to the defendant. The existence of absolute liability does not make any other defence available." on page 50, insert the following paragraphs:

"The proposed offence of harbouring a victim has been carefully drafted so that it only applies to the context of harbouring a victim of a people trafficking, slavery, or slavery-like offence (that is, an offence against Divisions 270 or 271 of the Criminal Code, not including the offence of harbouring a victim itself). The application of absolute liability to the question of whether the relevant 'third person offence' is a people trafficking, slavery, or slavery-like offence is appropriate and necessary in the circumstances, particularly given the intended deterrent effect of the offence.

It would be inappropriate for the defendant to escape liability for conduct that would otherwise constitute an offence of harbouring a victim simply because the person was unaware that the offence they knowingly or recklessly assisted was of a particular type.

For example, as a result of the application of absolute liability to paragraph 271.7F(1)(c), a defendant would not be able to claim, in defence to a charge of harbouring a victim, that he or she had a mistaken but reasonable belief that the third party offence was not a people trafficking offence because the defendant thought they were assisting the third person in kidnapping, rather than trafficking, the victim.

Importantly, the prosecution will still be required to prove beyond reasonable doubt that the defendant knew or was reckless as to the fact that the harbouring, receiving or concealing of the victim assisted, or furthered the purpose of, the commission of the 'third person offence' (i.e. the element in proposed paragraph 271.7F(1)(b))."