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However, the lack of empirical research about forced marriage should not lead to the conclusion that forced marriage does not exist: despite the lack of awareness and research about forced marriage and the difficulties in identifying instances of forced marriage, the issue has confronted the Australian courts.27 Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2010) 196, observed: ‘Certain forms of trafficking including … trafficking for forced marriage … are both directed toward and impact disproportionately upon women and girls’. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
25 See, eg, Attorney-General’s Department (Cth), Exposure Draft: Crimes Legislation Amendment (2011) (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012 7 cl 270.6, 13 cl 271.1A.
(Cth) 26 Overington, ‘The Wedding Vow’, above n 3.
27 See generally ABC Radio National, above n 2. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 2013] Without Consent: Forced Marriage in Australia 977 In May 2010, a 17-year-old girl saved herself from a forced marriage in Lebanon by calling the Australian Federal Police.28 After obtaining Legal Aid representation, the Federal Magistrates Court issued an order under s 68B of the Family Law Act 1975 (Cth) (‘FLA’) restraining her family from taking her outside of Australia.29 In another case, the Victorian Department of Human Services applied for an order from the Family Court to prevent the parents of a 14-year-old girl from taking her overseas to be married to another minor.30 Justice Mushin found that neither child was of marriageable age within the terms of the Marriage Act 1961 (Cth) (‘Marriage Act’) and made a parenting order restraining the girl’s parents from removing her from Australia and placing her on the Airport Watch List.31 In 2011, an Australian born woman, Ms Kreet, successfully petitioned the Family Court for orders that her marriage, which occurred in India in 2009, was void for duress.32 Ms Kreet travelled to India where she believed she would marry Mr U, her Australian boyfriend. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
When she arrived her parents confiscated her passport and introduced her to Mr Sampir.
Ms Kreet’s father threatened Ms Kreet that he would have Mr U’s sisters and mother raped and kidnapped unless she married Mr Sampir.
Under duress, Ms Kreet married Mr Sampir, sponsored his application for an Australian partner visa, and then flew back to Australia where she withdrew the visa application and returned to Mr U. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Her relationship with her parents broke down and she sought an indefinite intervention order to protect herself from her father.
She also sought and obtained an order from the Family Court annulling the marriage on the grounds of duress. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Under the current provisions of the Marriage Act, a marriage is void if it was obtained by duress or fraud or if one party did not have the mental capacity to truly consent to the marriage.33 However, the Marriage Act does 28 ‘Police Save Sydney Girl from Forced Marriage’, above n 2.
29 Kandal v Khyatt (2010) 43 Fam LR 344, 346 (Dunkley FM).
30 Department of Human Services v Brouker (2010) 44 Fam LR 486.
31 Ibid 490–1.
32 Kreet v Sampir (2011) 44 Fam LR 405. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
32 Kreet v Sampir (2011) 44 Fam LR 405.
33 Marriage Act ss 23(1)(d), 23B(1)(d) provide that a marriage is void if the consent of either of the parties was not a real consent because: it was obtained by duress or fraud; (i) (ii) that party was mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party was mentally incapable of understanding the nature and effect of the marriage ceremony. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 978 Melbourne University Law Review [Vol 36:970 not specifically define forced marriage, duress or coercion and there is no specific offence of forcing a person to marry another.
In Kreet v Sampir34 Cronin J observed that ‘duress is not defined in [the] Marriage Act but there is no reason to give it any other meaning than that which is normally known to the law. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
It must be oppression or coercion to such a degree that consent vanishes’.35 His Honour then referred approvingly to the case of Re Marriage of S where Watson SJ granted an application for a nullity from a young woman who had married an Egyptian man.36 Although the young woman was not threatened, nor was she in physical danger, Watson SJ found ‘[s]he was caught in a psychological prison of family loyalty, parental concern, sibling responsi- bility, religious commitment and a culture that demanded filial obedience’.37 After reviewing the case law on duress, Watson SJ found: The emphasis on terror or fear in some of the judgments seems unnecessarily limiting. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
A sense of mental oppression can be generated by causes other than fear or terror. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
If there are circumstances which taken together lead to the con- clusion that because of oppression a particular person has not exercised a vol- untary consent to a marriage that consent is vitiated by duress and is not a real consent.38 Most recently, Ms Madley, a 16-year-old Australian woman, sought a court order to prevent her parents from removing her from Australia to marry a man in Lebanon.39 The applicant had the necessary standing by virtue of s 65C(b) of the FLA, which provides that a child may apply for a parenting order. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Observing that Ms Madley’s evidence made it very clear that ‘she does not wish to be married to a person whom she has met once, has no affection for, and no relationship with’, Harman FM made orders restraining Ms Madley’s parents from removing her from Australia and assaulting, molesting, threatening or intimidating their daughter.40 34 (2011) 44 Fam LR 405. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
35 Ibid 140 [39], citing Re Marriage of S (1980) 42 FLR 94, 105, where Watson SJ observed that consent may be nullified by ‘non-violent but nevertheless controlling parental coercion’.
36 (1980) 42 FLR 94.
37 Ibid 104.
38 Ibid.
39 Madley v Madley [2011] FMCAfam 1007 (1 April 2011).
40 Ibid [30]. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
40 Ibid [30].
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 2013] Without Consent: Forced Marriage in Australia 979 Those facing forced marriage may be reluctant to speak out against family members and those forcing others to marry may not view their actions as wrong. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Misinformation about a person’s immigration status may create a coercive environment in which newly arrived migrant women will not seek help for fear of being sent home by immigration authorities.41 In light of these difficulties and the general lack of community awareness of the forced marriage, it is reasonable to assume that instances of forced marriage in Australia are likely to be under-reported.42 After evaluating 48 submissions received in response to the Discussion Paper, an interdepart- mental committee chaired by the Commonwealth Attorney-General’s Department observed that the community responses suggested that ‘forced marriage is likely to be more prevalent than the small number of cases that have been reported to the police would indicate’ and ‘the low number of reports may be attributed to the familial nature of some forced or servile marriages, or that victims may not actually identify their marriage to have been forced’.43 Further research is critical to develop a scholarly understanding of forced marriage and identify the social, economic and cultural factors that leave people vulnerable to such practices.44 A key challenge will also be to distin- guish forced marriage from the practice of sham marriage, where a citizen or permanent resident fraudulently claims to be in a genuine relationship in order to sponsor their ‘spouse’ or ‘partner’ to migrate to Australia. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
This task is complex as there is evidence that suggests sham marriages may sometimes be 41 Australian Immigrant and Refugee Women’s Alliance, Submission to Attorney-General’s Department (Cth), Forced and Servile Marriage, 25 February 2011, 10. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
42 See, eg, Good Shepherd Australia New Zealand, Submission to Attorney-General’s Depart- ment (Cth), Forced and Servile Marriage, March 2011, 4, quoting one domestic violence professional in a specialist service for women from culturally diverse backgrounds, who stated that ‘forced and servile marriage … affects 99 percent of the 800 women we work with each year’. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
43 Anti-People Trafficking Interdepartmental Committee, Parliament of Australia, Trafficking in Persons — The Australian Government Response: 1 July 2010 – 30 June 2011 (2011) 8. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
44 See Good Shepherd Australia New Zealand, Forced and Servile Marriage, above n 42, 21–2; Australian Catholic Religious against Trafficking in Humans, Submission to the Attorney- General’s Department (Cth), Forced and Servile Marriage, 24 February 2011; Women’s Health West, Submission to the Attorney-General’s Department (Cth), Forced and Servile Marriage, 21 February 2011, 3. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
See also Annabelle Allimant and Beata Ostapiej-Piatkowski, ‘Supporting Women from CALD Backgrounds Who Are Victims/Survivors of Sexual Violence: Challeng- es and Opportunities for Practitioners’ (Wrap No 9 2011, Australian Centre for the Study of Sexual Assault, Australian Institute of Family Studies, February 2011). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 980 Melbourne University Law Review [Vol 36:970 arranged by traffickers to facilitate the movement of people to Australia for exploitation.45 B Australia’s International Obligations Forced marriage is sometimes described as a slavery-like practice or simply a modern-day form of slavery. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
However, while Australia’s obligations to prohibit and sanction slavery and slavery-like practices are clearly set out in interna- tional law, international law does not provide an authoritative definition of forced marriage and the overlap between ‘forced marriage’ and other slavery- like practices is sometimes unclear. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Understanding the obligations that Australia has under treaties which define and prohibit people trafficking, slavery and slavery-like practices is important because the Australian gov- ernment has framed its responses to forced marriage within the context of our international obligations. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
International law provides no authoritative definition of ‘forced mar- riage’,46 however, the principle that marriage must be entered into with the ‘free and full consent’ of both parties is enshrined in the Universal Declaration of Human Rights,47 the International Covenant on Civil and Political Rights (‘ICCPR’),48 the International Covenant on Economic, Social and Cultural Rights49 and the Convention on the Elimination of all Forms of Discrimination against Women (‘CEDAW’).50 Australia is also a party to the Convention on 45 See Anti-People Trafficking Interdepartmental Committee, above n 43, 81, which provides a summary of Australia’s first reported case of trafficking for domestic servitude, in which a married couple in Queensland arranged a sham marriage in order to bring a woman from the Philippines to Australia to work as a domestic servant. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Upon arrival the woman was exploited and repeatedly raped.
Following numerous appeals, in February 2010, Zoltan Kovacs entered a plea of guilty and was re-sentenced to eight years’ imprisonment for slavery offences.
Fol- lowing a retrial Melita Kovacs was again found guilty and re-sentenced to four years’ impris- onment.
In March 2010, she sought leave to appeal her sentence in the Supreme Court.
46 Attorney-General’s Department (Cth), ‘Forced and Servile Marriage’, above n 5, 3 [3]. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
47 GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) art 16(2).
48 Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 23(3).
49 Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 10(1).
50 Opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Article 16(1)(b) provides: States Parties shall take all appropriate measures to eliminate discrimination against wom- en in all matters relating to marriage and family relations and in particular shall ensure, on Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 2013] Without Consent: Forced Marriage in Australia 981 Celebration and Recognition of the Validity of Marriages,51 which provides that Australia may refuse to recognise a marriage entered into without the full and free consent of both parties.52 Various international instruments also oblige Australia to make child marriage unlawful and ensure the minimum age for marriage is the same for both sexes.53 The sale and trafficking of children for any purpose is prohibited,54 and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (‘Trafficking Protocol’)55 prohibits trafficking in adults and children for the purpose of exploitation, including forced marriage.56 Yet there is no international instrument that expressly defines forced mar- riage or obliges states to criminalise the practice. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
There is, however, a specific obligation to criminalise ‘practices similar to slavery’ including servile marriage in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (‘Supplementary a basis of equality of men and women: … (b) [t]he same right freely to choose a spouse and to enter into marriage only with their free and full consent.
51 Opened for signature 14 March 1978, 1901 UNTS 131 (entered into force 1 May 1991). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
52 However, Australia has not signed or ratified the Convention on Consent to Marriage, Minimum Age for Marriage and Registration for Marriages, opened for signature 10 December 1962, 521 UNTS 231 (entered into force 9 December 1964) art 1(1), which provides that ‘[n]o marriage shall be legally entered into without the full and free consent of both parties’.
53 See CEDAW art 16(2). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
53 See CEDAW art 16(2).
See also UN Committee on the Elimination of Discrimination against Women, Report of the Committee on the Elimination of Discrimination against Women: Thir- teenth Session, UN GAOR, 49th sess, Supp No 38, UN Doc A/49/38 (12 April 1994). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
54 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 35; CEDAW art 16(2); The UN Special Rapporteur on Trafficking in Persons has argued that ‘[s]ince children are, by definition, incapable of consent or of exercising the right of refusal, child marriage is forced marriage, and as such violates fundamental human rights standards and must therefore be strictly prohibited’: Sigma Huda, Report of the Special Rapporteur on the Human Rights Aspects of the Victims of Trafficking in Persons, Especially Women and Children, UN Doc A/HRC/4/23 (24 January 2007) 9 [21]. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
55 Opened for signature 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003).
56 While forced marriage is not specifically mentioned in the list of exploitative practices in art 3 of the Trafficking Protocol, the United Nations Office on Drugs and Crime (‘UNODC’) has confirmed trafficking for forced marriage falls within the definition of trafficking of persons: see UNODC, Model Law against Trafficking in Persons (United Nations, 2009) 18. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 982 Melbourne University Law Review [Vol 36:970 Convention’).57 Servile marriage was first described in the Supplementary Convention, which characterised the circumstances of a person of servile status as those in which: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on the death of her husband is liable to be inherited by another person.58 Under the Supplementary Convention, states are obliged to criminalise conduct that induces another person to adopt a servile status.59 The term ‘forced marriage’ encompasses the narrower idea of ‘servile marriage’, or ‘situations in which a person is considered a “chattel” that can be sold, transferred, or inherited into marriage.’60 Further, while the various concepts of forced and servile marriage, slavery, servitude and forced labour have different definitions under international law, the concepts may overlap. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The most extreme situations of forced marriage may amount to servitude or, in the most egregious circumstances, slavery.61 The authoritative international definition of slavery is found in the 1926 Slavery Convention62 which defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.63 But despite the age and stature of the international prohibi- tion on slavery, it is only in the last decade that legislative action to combat human trafficking, and the introduction of enslavement into the Rome Statute 57 Opened for signature 7 September 1956, 266 UNTS 3 (entered into force 30 April 1957) arts 6(1)–(2). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
58 Ibid art 1(c).
59 Ibid arts 1, 6(2).
60 Attorney-General’s Department (Cth), ‘Forced and Servile Marriage’, above n 5, 3 [2].
61 UN Secretary-General, In-Depth Study on All Forms of Violence against Women: Report of the Secretary-General, UN GAOR, 3rd Comm, 61st sess, Agenda Item 61, UN Doc A/61/122/Add.1 (6 July 2006) 40 [122].
62 Opened for signature 25 September 1926, 60 LNTS 253 (entered into force 9 March 1927).
63 Ibid art 1(1). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
63 Ibid art 1(1).
The language of art 1(1) of the Slavery Convention has ‘proved to be abiding’ and is now accepted to define slavery at customary international law: Prosecutor v Kunarac (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case Nos IT-96-23-T and IT-96-23/1-T, 22 February 2001) [519]–[520]. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 2013] Without Consent: Forced Marriage in Australia 983 of the International Criminal Court (‘Rome Statute’),64 has ‘breathed new life into what was recently a dormant field of prosecution’.65 In 2008, the High Court of Australia contributed to jurisprudence on the meaning of slavery when it considered the application of domestic slavery offences that borrowed the language of the Slavery Convention.66 The High Court drew upon the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia to resolve the question of whether five Thai women, who worked in conditions of debt bondage in the Australian sex industry, could be described as slaves. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The Court identified four powers attaching to the right of ownership: the power to use a person’s labour in a substantially unrestricted manner; the entitlement to the fruits of the person’s labour without commensurate compensation; the power to control and restrict a person’s movements; and the power to commodify a person by treating the person as an object of sale and purchase.67 While drafters and commentators have distinguished between different types of exploitation such as slavery and servitude,68 the High Court found it ‘unnecessary … and unhelpful to seek to draw boundaries between slavery and cognate concepts such as servitude, peonage, forced labour, or debt bondage’ as the various concepts should not be understood as ‘mutually exclusive’.69 Applying this reasoning, it is apparent that the most egregious 64 Opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
65 Jean Allain, ‘The Legal Definition of Slavery into the Twentieth-First Century’ in Jean Allain (ed), The Legal Understanding of Slavery: From the Historical to the Contemporary (Oxford University Press, 2012) 356, 390.
66 R v Tang (2008) 237 CLR 1.
67 Ibid 18–21 [27]–[35] (Gleeson CJ), citing UN Secretary-General, Slavery, the Slave Trade, and Other Forms of Servitude, UN ESCOR, 15th sess, Agenda Item 18, UN Doc E/2357 (27 January 1953) 28. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
68 See, eg, the travaux préparatoires of the ICCPR, which suggest the drafters narrowly construed the concept of slavery in art 8 as a ‘relatively limited and technical notion’ which ‘implied the destruction of the juridical personality’, while the prohibition on servitude in art 8(2) was ‘a more general idea covering all possible forms of man’s domination of man’: Marc J Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (Martinus Nijhoff Publishers, 1987) 16–17. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
See also Siliadin v France (2006) 43 EHRR 16. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
69 R v Tang (2008) 237 CLR 1, 19 [29] (Gleeson CJ), observing that ‘[t]hose who engage in the traffic in human beings are unlikely to be so obliging as to arrange their practices to conform to some convenient taxonomy.’ Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 984 Melbourne University Law Review [Vol 36:970 cases of forced marriage may fall within the legal definition of slavery, but less egregious cases may not — the question will be whether or not the powers exercised by the perpetrator over the victim can be characterised as powers attaching to the right of ownership.70 A different approach was adopted by the Special Court of Sierra Leone in Prosecutor v Brima, where the Appeals Chamber recognised forced marriage as a specific crime against humanity, distinct from sexual slavery.71 This case concerned charges of crimes against humanity, brought against military leaders of the Armed Forces Revolutionary Council (‘AFRC’), for atrocities committed during the Sierra Leone civil war. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
During the war, rebel soldiers abducted women and girls to serve as ‘wives’.
The marriages were de facto arrangements; there was no marriage at law but the term ‘wife’ was deliberate- ly used to exert control over the women, and the ‘wives’ were forced to perform what were considered ‘wifely duties’ such as cleaning, cooking and caring for their husbands. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The Trial Chamber, in June 2007, concluded that every sham marriage forced upon the women by AFRC troops was a case of sexual slavery, ‘leaving no lacuna in the law that would necessitate a separate crime of forced marriage as an “other inhumane act”’.72 One of the issues on appeal was whether the prosecution had established the elements of a non-sexual offence of forced marriage independent of the crime of sexual slavery. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The Appeals Chamber heard evidence that ‘[t]he use of the term ‘wife’ by the perpetrator was deliberate and strategic’, designed to demonstrate ‘a rebel’s control over a woman.’73 Therefore, instead of character- ising forced marriage as a species of sexual slavery, the Appeals Chamber 70 Ibid.
See also Attorney-General’s Department (Cth), ‘Forced and Servile Marriage’, above n 5, 10–11 [42]–[46]. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
71 Brima v Prosecutor (Judgment) (Special Court for Sierra Leone, Appeals Chamber, Case No SCSL-2004-16-A, 22 February 2008) (‘Brima (Appeal)’).
See also Prosecutor v Brima (Judge- ment) (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-04-16-T, 20 June 2007) (‘Brima (Trial)’); Prosecutor v Sesay (Judgment) (Special Court for Sierra Leone, Ap- peals Chamber, Case No SCSL-04-15-A, 26 October 2009). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
72 Brima (Trial) (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-04-16-T, 20 June 2007) [713], quoted in Brima (Appeal) (Special Court for Sierra Leone, Appeals Cham- ber, Case No SCSL-2004-16-A, 22 February 2008) [187].
73 Brima (Appeal) (Special Court for Sierra Leone, Appeals Chamber, Case No SCSL-2004-16-A, 22 February 2008) [192]. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The prosecution expert noted: ‘By calling a woman “wife”, the man or “husband” openly staked his claim and she was not allowed to have sex with any other person. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
If she did, she would be deemed unfaithful and the penalty was severe beating or death.’ Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 2013] Without Consent: Forced Marriage in Australia 985 concluded that the nature of ‘forced conjugal association’ was different from the exercise of ownership powers that characterise slavery, because it imposes social exclusivity upon the victims: unlike sexual slavery, forced marriage implies a relationship of exclusivity be- tween the ‘husband’ and ‘wife’, which could lead to disciplinary consequences for breach of this exclusive arrangement. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
These distinctions imply that forced marriage is not predominantly a sexual crime.74 The Appeals Chamber held that forced marriage is a crime against humanity, which should be recognised as a distinct crime instead of subsumed within the crime of ‘sexual slavery’ set out in art 7(1)(g) of the Rome Statute.75 The Appeals Chamber defined the crime of forced marriage as a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.76 Notably, this definition focuses on the conduct of maintaining a person in forced marriage over a period of time and the physical and psychological harm suffered by victims as a result of being forced to ‘serve’ as wives.77 74 Ibid [195]. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
75 Ibid.
The appeal reversed the trial decision, which acquitted the defendants of forced marriage on the basis that the conduct was captured by the existing crime of sexual slavery, which is prohibited by art 7(1)(g) of the Rome Statute. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The Trial Chamber had held that the residual category of crimes against humanity, ‘other inhumane acts’, was confined to acts of a non-sexual nature; if the evidence of sexual slavery was removed from the trial there was not sufficient evidence to establish the elements of a non-sexual crime of sexual slavery.
The Appeals Chamber declined, however, to enter a fresh conviction in this case for the crime of forced marriage. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The Appeals Chamber found that the conduct that constituted forced mar- riage had already been relied upon to convict the appellants of the crime of ‘Outrages upon Personal Dignity’: at [202].
76 Ibid [196].
77 Ibid [199]–[200].
The Appeals Chamber noted the act of forced marriage was ‘of similar gravity to several enumerated crimes against humanity including enslavement, imprison- ment, torture, rape, sexual slavery and sexual violence’: at [200]. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 986 Melbourne University Law Review [Vol 36:970 C Australia’s Legislative Response In the decade prior to the introduction of the Slavery Act 2013, Australia introduced new criminal offences prohibiting slavery, sexual servitude, people trafficking, and debt bondage into divs 270 and 271 of sch 1 of the Criminal Code Act 1995 (Cth) (‘Criminal Code’),78 with the intention of implementing its international obligations to prohibit slavery, people trafficking and slavery- like practices. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
However, these provisions failed to fully incorporate the international prohibitions on servitude, forced labour, and other practices similar to slavery.79 Indeed, the 2005 offences reflected an early preoccupation with egregious incidences of exploitation in the sex industry: for example, the legislation enacted in 1999 created a stand-alone offence of ‘sexual servitude’ that specifically targets exploitation of sexual services in the commercial sex industry or for a commercial profit,80 but did not capture sexual exploitation 78 The Criminal Code Amendment (Slavery and Sexual Servitude) Offences Act 1999 (Cth) introduced the offences of slavery (s 270.3), sexual servitude (s 270.6) and deceptive recruit- ing for sexual services (s 270.7) into Criminal Code Act 1995 (Cth) sch 1. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth) added the offences of trafficking in persons (s 271.2), trafficking in children (s 271.4), domestic trafficking in persons (s 271.5) and debt bondage arrangements (s 271.8).
See R v Tang (2008) 237 CLR 1, 16 [21]–[23] (Gleeson CJ) (explaining the legal meaning of slavery); R v Sieders (2008) 72 NSWLR 417 (explaining the meaning of sexual servitude). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
79 See Miriam Cullen and Bernadette McSherry, ‘Without Sex: Slavery, Trafficking in Persons and the Exploitation of Labour in Australia’ (2009) 34 Alternative Law Journal 4. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
See also Andreas Schloenhardt and Jarrod Jolly, ‘Honeymoon from Hell: Human Trafficking and Domestic Servitude in Australia’ (2010) 32 Sydney Law Review 671, discussing how a case of exploitation involving domestic servitude resulted in slavery and sexual assault convictions; Frances Simmons and Jennifer Burn, ‘Evaluating Australia’s Response to All Forms of Trafficking: Towards Rights-Centered Reform’ (2010) 84 Australian Law Journal 712; Evi- dence to Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Aus- tralia, Canberra, 29 August 2012, 27–30 (Jennifer Burn, Director, Anti-Slavery Australia); Anne T Gallagher and Rebecca Surtees, ‘Measuring the Success of Counter-Trafficking Inter- ventions in the Criminal Justice Sector: Who Decides — and How?’ (2012) 1 Anti-Trafficking Review 1. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
80 Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 (2005) 19 [2.49] observed that non-commercial sexual exploitation was not caught by the proposed offences and recom- mended that the proposed trafficking offences be amended to remove any doubt that they apply to non-commercial sexual exploitation: at 20 [2.53]. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
In response to these concerns, the Commonwealth Attorney-General’s Department expressed the view that non-commercial sexual exploitation is a matter for state and territory governments to address under their laws and not a matter that the Australian government had to address to implement the Trafficking Protocol: at 18 [2.45]. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 2013] Without Consent: Forced Marriage in Australia 987 in a non-commercial setting or recognise the concept of servitude may properly describe severe forms of exploitation in a range of different settings. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
There were other gaps in the formulation of Commonwealth trafficking offences: the accepted international definition of trafficking in persons captures both ‘the bringing of a person into exploitation and the maintenance of that person in a situation of exploitation’.81 In contrast, Australia’s anti- trafficking laws only dealt with the movement of persons either across or within borders for the purpose of exploitation.82 Moreover, the 2005 traffick- ing offences in the Criminal Code prohibited trafficking for the purpose of ‘exploitation’83 but the definition of exploitation did not specifically cover ‘servile marriage’, ‘servitude’ or ‘practices similar to slavery’, despite the fact that these practices were clearly captured by the international definition of trafficking in persons found in the Trafficking Protocol.84 81 Gallagher, above n 24, 47. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
82 See Fiona David and Anne Gallagher, Submission to the Attorney-General’s Department (Cth), The Criminal Justice Response to Slavery and People Trafficking; Reparation; and Vulner- able Witness Protections, 1 March 2011. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
83 The definition in the Criminal Code Dictionary states that exploitation occurs if: (a) the exploiter’s conduct causes the victim to enter into slavery, forced labour or sexual servitude; or (b) the exploiter’s conduct causes an organ of the victim to be removed and: (i) the removal is contrary to the law of the State or Territory where it is carried out; or (ii) neither the victim nor the victim’s legal guardian consented to the removal and it does not meet a medical or therapeutic need of the victim. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
In 2005, the Senate Legal and Constitutional Committee noticed this gap and recommended that the trafficking offences should provide unambiguous coverage of all forms of exploitation contemplated by the Trafficking Protocol: Senate Legal and Constitutional Legislation Com- mittee, Trafficking in Persons Offences Report, above n 80, 14–17 [2.33]–[2.43], 20 [2.54].
In the view of the Committee, the definition of ‘exploitation’ should have been amended to expressly cover servile marriage. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
84 Trafficking Protocol art 3; UNODC, above n 56. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
See also Joy Ngozi Ezeilo, Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children: Mission to Australia, 20th sess, Agenda Item 3, UN Doc A/HRC/20/18/Add.1 (18 May 2012) 8; Anti-Slavery Aus- tralia, Submission to the Attorney-General’s Department (Cth), Forced and Servile Marriage, 25 February 2011, 56; Anti-Slavery Australia, Submission to the Attorney-General’s Depart- ment (Cth), The Criminal Justice Response to Slavery and People Trafficking; Reparation; and Vulnerable Witness Protections, March 2011; Simmons and Burn, ‘Evaluating Australia’s Response to All Forms of Trafficking’, above n 79, 712. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 988 Melbourne University Law Review [Vol 36:970 In response to concerns about gaps in Australia’s anti-trafficking laws, in May 2012 the Australian government introduced the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012 (Cth), and on 27 February 2013 the Bill was passed by the Australian Parliament.85 The new Act introduces stand-alone offences of forced marriage, servitude and forced labour, clarifies the meaning of ‘coercion’ in the context of trafficking-related crimes, introduces a new offence which applies where a person harbours or receives a victim of trafficking or slavery, and amends the definition of exploitation to include a ‘condition similar to slavery’, including (but not limited to): servitude, forced labour, forced marriage, and debt bondage.86 Amending the definition of exploitation to include ‘a condition similar to slavery’ is consistent with Australia’s international obligations under the Trafficking Protocol, which requires Australia to ‘adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of [the Trafficking Protocol]’.87 The replacement of the offence of ‘sexual servitude’ with a broader offence of ‘servitude’ that will capture all forms of servitude is also welcome, as the previous focus on sexual servitude in the commercial sex industry (to the exclusion of other forms of servitude) sat uneasily with the Australian government’s stated intention to address all forms of trafficking. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Under the Act, servitude is defined by Criminal Code s 270.4 as follows: (1) For the purposes of this Division, servitude is the condition of a person (the victim) who provides labour or services, if, because of the use of coercion, threat or deception: (a) a reasonable person in the position of the victim would not consider himself or herself to be free: (i) to cease providing the labour or services; or (ii) to leave the place or area where the victim provides the labour or services; and (b) the victim is significantly deprived of personal freedom in respect of as- pects of his or her life other than the provision of the labour or services. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
85 For a discussion of the gaps in existing legislation and the merits of the proposed new offences, see David and Gallagher, above n 82.
86 Slavery Act 2013 sch 1, amending Criminal Code.
87 Trafficking Protocol art 5(1). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
87 Trafficking Protocol art 5(1).
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 2013] Without Consent: Forced Marriage in Australia 989 (2) Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
(3) The victim may be in a condition of servitude whether or not: (a) escape from the condition is practically possible for the victim; or (b) the victim has attempted to escape from the condition.
The new offence of servitude does not focus upon the absence of consent, but instead takes into account the conditions of the relationship, the depriva- tion of personal freedoms, and whether a person’s labour or services are exploited. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Thus, the servitude provision may apply in situations where marriage is entered into with consent of both parties, but after the marriage has occurred one party subjects the other to servitude.
This is important, as sometimes the marriage itself may not be identified by the parties as ‘forced’. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Instead, consent is given to enter into marriage, but the nature of the marriage is not in line with one or both of the parties’ expectations.88 The servitude provision may cover a situation where a marriage ceremony was voluntarily entered into but then one of the parties was subsequently subjected to serious exploitation.89 While it appears clear that the offence of servitude captures exploitation in private and non-private settings, a recent Senate inquiry into the Bill recommended that the explanatory memorandum make this situation clear.90 Although the explanatory memorandum does not expressly address this point, it does make it clear that the intention of the new provision is to recast the servitude offence so that ‘it covers the broadest possible range of exploitative conduct’.91 88 Women’s Legal Services NSW, Submission to the Attorney-General’s Department (Cth), Forced and Servile Marriage, 4 March 2011, 2. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
89 Attorney-General’s Department (Cth), Answers to Questions on Notice to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012, 4 September 2012, 15. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
90 Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012 [Provisions] (2012) 34 [3.83]–[3.84] (‘Slavery Bill Report’).
See also Second Addendum to the Explanatory Memorandum, Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
91 See Commonwealth of Australia, Explanatory Memorandum, Crimes Legislation Amend- ment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012, 15. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 990 Melbourne University Law Review [Vol 36:970 The forced marriage offences inserted by the Act target conduct causing a person to enter into a forced marriage and being a (non-victim) party to forced marriage, but do not focus upon the maintenance of a person in a situation of forced marriage (for example, making a woman ‘serve’ a husband as a forced wife). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Although it appeared in the exposure draft as a ‘condition similar to slavery’ falling within the definition of ‘exploitation’,92 no reference is made to the concept of servile marriage in the Act; it is not a stand-alone offence.
The response of the Commonwealth Attorney-General’s Department was that no new offence for ‘servile marriage’ was necessary. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
‘Servile marriage’ refers to a situation in which a person is considered a chattel, to ‘be sold, transferred or inherited’, and these situations would be covered either under the existing offence of slavery, or the new offences of forced marriage.93 Where a person voluntarily enters into a marriage but is later coerced, threatened or deceived into remaining in the marriage, this conduct may be captured by servitude or slavery offences, or by state and territory domestic violence legislation.94 Consequently, the Australian approach to the criminalisation of forced marriage deals with the discrete question of whether there was an absence of consent at the point in time the marriage was entered into,95 rather than 92 Attorney-General’s Department (Cth), Exposure Draft, above n 25, 13 cl 271.1A(2). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
See Commonwealth of Australia, Explanatory Memorandum, Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012, 15, which states: Given the rise in the number of individuals identified as being exploited in industries oth- er than the sex industry (for example, hospitality) it is necessary to recast this offence so that it covers the broadest possible range of exploitative conduct, regardless of the industry in which the exploitation occurs. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
This is especially important in order to ensure that inves- tigators and prosecutors have the most appropriate range of offences available to them where the circumstances of a matter do not amount to slavery but nonetheless demon- strate significant inappropriate conduct. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
93 Attorney-General’s Department (Cth), Answers to Questions on Notice to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012, 4 September 2012, 11; Commonwealth of Australia, Explanatory Memorandum, Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
94 See Commonwealth of Australia, Explanatory Memorandum, Crimes Legislation Amend- ment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012, 25.
95 Slavery Act 2013 sch 1 item 12, amending Criminal Code s 270.7A. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Whether the Common- wealth decides to introduce criminal or civil measures, it would appear the legislative re- sponse to forced marriage could be justified under either the external affairs power in s 51(xxix) of the Constitution — as giving effect to Australia’s international obligations to prohibit and prevent practices similar to slavery (including servile marriage) and protect the right to enter into marriage freely and voluntarily — or as laws made with respect to marriage pursuant to s 51(xxi) of the Constitution. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 2013] Without Consent: Forced Marriage in Australia 991 adopting the approach in Brima (Appeal) where the Appeals Chamber focused upon the ‘suffering, or physical, mental or psychological injury to the victim’ that occurs as a result of being forced to ‘serve’ as a wife.96 According to the Act, ‘a marriage is a forced marriage if, because of the use of coercion, threat or deception, one party to the marriage (the victim) entered into the marriage without freely and fully consenting.’97 This defini- tion incorporates a broad definition of ‘coercion’, introduced by the Act, which states coercion can include force, duress, detention, psychological oppression, abuse of power, and taking advantage of a person’s vulnerability.98 Significantly, s 270.7A(3) introduced by the Act provides that the definition of forced marriage applies whether the coercion, threat or deception is used against the victim or another person. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Section 270.7B creates two offences of forced marriage. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The first offence of ‘causing a person to enter into a forced marriage’ provides: (1) A person (the first person) commits an offence if: (a) the first person engages in conduct; and (b) the conduct causes another person to enter into a forced marriage as the victim of the marriage.99 Coercion and threat are defined at s 270.1A, while the concept of deception is already defined in the Criminal Code.100 The second specific offence, that of ‘being a party to a forced marriage’, targets the conduct of a person who remains in a marriage to a victim of forced marriage. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Under s 270.7B, a person who commits an offence is a 96 Brima (Appeal) (Special Court for Sierra Leone, Appeals Chamber, Case No SCSL-2004-16-A, 22 February 2008) [195]. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
97 Slavery Act 2013 sch 1 item 12, inserting Criminal Code s 270.7A, which provides that a marriage includes a de facto relationship registered in Australia, a marriage or registered de facto relationship recognised under a law of foreign country, and a marriage that is invalid or not recognised by law, for any reason, including that a party to the marriage has not freely or fully consented to the marriage or that a party to marriage is married to more than one person. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
98 Slavery Act 2013 sch 1 item 8, inserting Criminal Code s 270.1A.
99 Slavery Act 2013 sch 1 item 12, inserting Criminal Code s 270.7B(1).
100 Criminal Code s 271.1. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
100 Criminal Code s 271.1.
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 992 Melbourne University Law Review [Vol 36:970 person who is a party to a marriage (as defined in s 270.7A), where the marriage is a forced marriage and the person is not a victim of the forced marriage. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The offence will not apply if the person has a ‘reasonable excuse’, but no statutory guidance is provided about what excuses would be accepta- ble.101 As a result, it is unclear how the offence will operate.102 The differing degrees of harm that may result from a forced marriage are in part acknowledged by s 270.8, which provides for an aggravated offence for slavery-like offences, including the forced marriage offences. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The aggravated offence will be committed if: the victim is under 18; the offender subjects the victim to cruel, inhuman or degrading treatment; or the offender engages in conduct that gives rise to a danger of death or serious harm to the victim or another person. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Serious harm is not defined in the Act but the concept of cruel, inhuman or degrading treatment parallels the international definitions drawn from the ICCPR.103 If the prosecutor intends to prove an aggravated offence the charge must allege the relevant aggravated offence.
The relevant fault element is recklessness.104 Criminalising the conduct that causes a person to enter into a forced mar- riage is likely to be challenging. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Little is known about the modus operandi of people who facilitate forced marriage or cause others to enter into forced marriage in Australia, but if the experience in Australia is similar to that of the United Kingdom then typically the ‘offenders’ will be family members.
These family members may not view their actions as wrong or harmful and their children or relatives may be reluctant to participate in criminal proceed- ings against their relatives. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
In order for an entry offence to be effective, the question of what constitutes coercion in a familial context where multiple 101 Slavery Act 2013 sch 1 item 12, inserting Criminal Code s 270.7B(4).
102 See failed amendments moved by Senator Brandis, on behalf of the Opposition: Common- wealth, Parliamentary Debates, Senate, 27 February 2013, 14–16. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
The operation of strict liability in s 270.7B(2)(c) was controversial: see Commonwealth, Parliamentary Debates, Senate, 25 February 2013, 103–10; Commonwealth, Parliamentary Debates, House of Repre- sentatives, 21 August 2012, 9267–97; Commonwealth, Parliamentary Debates, House of Representatives, 20 August 2012, 9487–91.
103 ICCPR art 7.
104 Slavery Act 2013 sch 1 item 12, inserting Criminal Code s 270.8(1)(c)(ii). | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
It is noted that s 270.8(3) provides: If, on a trial for an aggravated offence, the trier of fact is not satisfied that the defendant is guilty of the aggravated offence, but is otherwise satisfied that the defendant is guilty of the corresponding slavery-like offence, it may find the defendant not guilty of the aggravated offence, but guilty of the corresponding slavery-like offence. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |
Parliamentary inquiry into a better family law system to support and protect those affected by family violenceSubmission 92 - Attachment 1 2013] Without Consent: Forced Marriage in Australia 993 members may place pressure upon a person to marry must be carefully defined and the question of what conduct is egregious enough to warrant criminal sanction must be precisely articulated. | Gender Based violence- Violence Against Women | Child marriage | Australia | https://docs-lawep.s3.us-east-2.amazonaws.com/1694500131425.pdf | https://www.aph.gov.au/DocumentStore.ashx?id=5a0e6f8a-3fb0-486d-a48f-86b21d2424f9&subId=511956 |