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1998-99
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMINAL CODE AMENDMENT (SLAVERY AND SEXUAL
SERVITUDE) BILL 1999
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice and Customs
Senator the Honourable Amanda Vanstone)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE SENATE TO THE BILL AS INTRODUCED
ISBN: 0642 407436
CRIMINAL CODE AMENDMENT (SLAVERY AND SEXUAL SERVITUDE)
BILL 1999
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archaic language and relate to outdated circumstances and institutions that have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.
13. This is a formal item which provides for the citation of the Bill.
14. The Bill commences 28 days after the day on which it receives the Royal Assent.
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.
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.
Clause 270.3 Slavery Offences
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 ësexual servitudeí 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.
Clause 270.13 Double
Jeopardy
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.