2.1
To provide background to the discussion on Australia’s international advocacy on child and forced marriage issues, this chapter sets out evidence that the Committee received about the prevalence of child and forced marriage both within Australian and globally, as well as the domestic and international legal frameworks to respond to child and forced marriage.
2.2
There are varying definitions of child and forced marriage used across domestic and international contexts, with a range of phrases in use including ‘early marriage’, ‘child marriage’ and ‘forced marriage’. The Department of Foreign Affairs and Trade (DFAT) summarised that ‘forced marriage occurs where a person, regardless of age, is forced to marry without their consent, and is distinguished from arranged or sham marriages that arise with the consent of both parties.’ DFAT also explained that ‘child marriage is considered forced marriage given the absence of full, free and informed consent.’
2.3
DFAT elaborated that ‘forced marriages come about through physical, emotional or financial duress, deception, use of force, threats or severe pressure’, and stated:
Once forced to marry, many victims are at a greater risk of being subjected to other forms of exploitation, including sexual exploitation, domestic servitude and other forms of forced labour, and health issues, particularly in cases of early marriage.
2.4
Further context on Australian cases of child and forced marriage was provided by the Australian Catholic Religious Against Trafficking in Humans (ACRATH) and Anti-Slavery Australia. ACRATH stated it ‘has been working on the issue of forced marriage since 2008’ and had identified the following issues occurring in Australia:
1
Young women are brought to Australia to marry and discover on arrival in Australia that the marriage they are entering into is not what they had agreed to.
2
Young women who are taken to their parents’ country of origin to marry against their will.
3
Young women, often citizens or with Australian permanent residency, who are forced to marry in Australia.
2.5
Anti-Slavery Australia stated:
We might have people that are forced to marry and then sponsor a partner from overseas to come over to Australia. That is something that we see. We do see exchange of finances as well, which does work to complicate people’s situation. Often there is some kind of dowry or financial exchange between the families. In our experience as well, once that exchange occurs, it is immensely difficult for that person to be able to retract from the marriage.
Prevalence of child and forced marriage
2.6
Inquiry participants highlighted work that estimates the prevalence of child and forced marriage both in Australia and globally. Walk Free observed that ‘forced marriage occurs in every part of the world, including right here in Australia.’
2.7
Australia’s commitment to the collection of gender-disaggregated data was described by Walk Free to lead to a strengthening of ‘the capacity to collect, analyse, and make policy decisions based on evidence.’
Global prevalence statistics
2.8
DFAT stated that ‘the 2017 Global Estimates of Modern Slavery prepared by the International Labour Organization – based on data captured from surveys – estimated 15.4 million people were living in a forced marriage globally, of those 84 per cent were women, and one third were under 18 years when married.’
2.9
The Global Estimates of Modern Slavery was produced in 2017 by the International Labour Organization (ILO), Walk Free, and the UN International Organization for Migration. Walk Free outlined that this ‘data suggests forced marriage is most prevalent in Africa (4.8 per 1,000 people), followed by Asia and the Pacific (2.0 victims per 1,000 people).’
2.10
The United Nations Children’s Fund (UNICEF) produces regular estimates of child marriage rates. Walk Free stated that UNICEF ‘estimates that globally, around 21 per cent of young women were married before their 18th birthday.’
2.11
Table 2.1 describes the number and prevalence of various categories of persons in forced marriage.
Table 2.1: Number and prevalence of persons in forced marriage, by sex, age and region
|
|
|
|
|
|
World
|
World
|
15,442
|
2.1
|
|
Sex
|
Male
|
2,442
|
0.6
|
|
Female
|
13,000
|
3.5
|
|
Age grouping
|
Adults
|
9,762
|
1.9
|
|
Children
|
5,679
|
2.5
|
|
Region
|
Africa
|
5,820
|
4.8
|
|
Americas
|
670
|
0.7
|
|
Arab States
|
170
|
1.1
|
|
Asia and the Pacific
|
8,440
|
2.0
|
|
Europe and Central Asia
|
340
|
1.1
|
Source: International Labour Organization and Walk Free, Global Estimates of Modern Slavery: Forced Labour and Forced Marriage, 2017, p. 43.
2.12
Prevalence estimates of forced marriage, ‘due to limitations of the methodology and data … are considered to be conservative’ by the ILO and Walk Free in the Global Estimates report. Walk Free explained in its submission that ‘data gaps exist in key regions, particularly in the Arab States due to an inability to adequately survey forms of modern slavery that predominantly affect women and girls.’
2.13
Concerns about trends of forced marriage over time were raised by Family Planning NSW, which stated ‘if change does not accelerate, 1.2 billion women alive in 2050 will have been a child bride – which is akin to the entire population of India.’
2.14
However, UNICEF has observed that over the past decade, ‘the prevalence of child marriage is decreasing globally with the most progress in the past decade seen in South Asia, where a girl’s risk of marrying in childhood has dropped by more than a third, from nearly 50 per cent to 30 per cent.’
2.15
DFAT stated that ‘the ILO is scheduled to issue a new Global Estimates of Modern Slavery in 2021’, and expects that this new report will reflect an increased rate of forced marriage due to the impacts of the COVID-19 pandemic.
Australian prevalence statistics
2.16
The Australian Government in its National Action Plan to Combat Modern Slavery states that in the period from July 2015 to June 2017, the Australian Institute of Criminology and Walk Free ‘estimated that there were up to 1,900 victims and survivors of modern slavery in Australia.’ However, it is ‘estimated that for every victim and survivor detected by authorities in Australia, four remain undetected.’
2.17
Family Planning NSW stated that in Australia ‘the National Children’s and Youth Law Centre estimates 250 cases have occurred since 2012. Experts assert that this number is likely underreported.‘ Family Planning NSW caveated that the publicly available Australian data is limited:
… there is very little information on the prevalence of child forced marriage in Australia, and no publicly available government data on child forced marriage in Australia.
2.18
Reports of forced marriage to the Australian Federal Police (AFP) are a key source of data. The AFP observed that forced marriage ‘reports generally increase annually, however, it is unclear whether this is the result of increased offending, or increased awareness that forced marriage is a crime.’
2.19
‘Partly attributed to COVID’, the AFP stated it has ‘seen a slight reduction in the number of reports’ in the current year. The AFP stated that ‘to date, to June’ 2021 it has ‘received 74 reports or allegations of forced marriage compared to the previous year.’ The AFP elaborated:
We believe that there are a number of environmental factors in addition to COVID. How we become aware of a potential forced marriage is often through schools, doctors and the like. We believe that the restrictions due to COVID—particularly with schools—have contributed to some of the reduction in the numbers that we’ve seen this year.
2.20
The AFP stated that it ‘found that the most vulnerable victims of forced marriage were females between the ages of 15 and 19.’ The AFP further elaborated on the trends seen in reports it has received:
For the year 2019-20, of those reports coming through to the Australian Federal Police about trafficking related offences, forced marriage reports made up 41 per cent. Fifty-one per cent of forced marriage reports were victims under the age of 18 and 70 per cent related to offshore marriages.
Australian legal framework
2.21
The domestic legal framework for child and forced marriage was described in the evidence received, providing insight into the regulatory approach that has been taken by the Australian Government, as well as legislative activity that has been undertaken in recent years. There are several pieces of legislation that intersect with child and forced marriage issues, including the Criminal Code Act 1995 (Cth), Modern Slavery Act 2018 (Cth), Marriage Act 1961 (Cth) and Family Law Act 1975 (Cth).
2.22
The Department of Home Affairs/Australian Border Force (ABF) advised that the ‘the Australian Government has comprehensively criminalised forced marriage in the Criminal Code Act 1995. The term forced marriage is defined in Australian law to include child marriage’, and stated:
Under Australian law a forced marriage occurs when a person is married without freely and full consenting, because: they have been coerced, threatened or deceived; they are incapable of understanding the nature and effect of a marriage; or the person was under the age of 16 when married.
Criminal Code Act 1995
2.23
Following legislative amendments to define forced marriage in 2013, section 270.7A of the Criminal Code Act 1995 (Cth) states:
A marriage is a forced marriage if:
(a) either party to the marriage (the victim) entered into the marriage without freely and fully consenting: (i) because of the use of coercion, threat or deception; or (ii) because the victim was incapable of understanding the nature and effect of the marriage ceremony; or
(b) when the marriage was entered into, either party to the marriage (the victim) was under 16.
2.24
The Department of Home Affairs/ABF stated ‘it is an offence to both cause a person to enter into a forced marriage and to be a party to a forced marriage’:
The offences apply to legally recognised marriages, registered relationships and cultural or religious ceremonies. They carry a maximum penalty of up to nine years’ imprisonment. If a child is taken overseas for the purposes of forced marriage, this may also constitute a trafficking in children offence, which is punishable by up to 25 years’ imprisonment.
2.25
The Department of Home Affairs/ABF stated ‘Australia’s forced marriage offences have extended geographical jurisdiction and can therefore apply where the conduct occurred in Australia, or where the conduct occurred outside Australia and the offender was an Australian corporation, citizen or permanent resident.’
Modern Slavery Act 2018
2.26
The Modern Slavery Act was passed by the Commonwealth Parliament in 2018. DFAT stated that ‘the Commonwealth Modern Slavery Act (2018) established a national Modern Slavery Reporting Requirement, which requires large businesses operating in Australia to report on the modern slavery risks in their supply chains and the actions they are taking to address those risks.’
2.27
The Australian Border Force (ABF) advised that ‘the Modern Slavery Act defines eight different forms of modern slavery, so it includes slavery, servitude, forced marriage, forced labour, debt bondage, deceptive recruiting, worst form of child labour and human trafficking.’
2.28
DFAT outlined that ‘child and forced marriage is a complex issue that is rooted in gender inequality, poverty and lack of education and economic opportunities. Forced marriage can lead to, or be linked to, instances of forced labour - in the form of domestic servitude, as well as in industries that are a part of global supply chains.’
2.29
The ABF stated that the Modern Slavery Act 2018 (Cth) ‘does not stand alone’ and ‘there are a number of pieces of legislation that provide that broad reach across the criminal activities, across the other areas of exploitation’ including the Criminal Code and the Migration Act.
2.30
The ABF advised that the Modern Slavery Act ‘is due to be reviewed. It is legislated to have a review three years after commencement, which will occur as soon as practicable after January 2022.’
2.31
Walk Free stated it does ‘believe there are gaps in [the Modern Slavery Act], and we welcome the review process.’ Walk Free elaborated that there was a need to establish a Commonwealth-level antislavery commissioner, and expand the Act’s focus from ‘transparency’ to ‘remediation’:
We don’t believe there’s any reason why the federal government could not introduce an [antislavery commissioner] now. We believe there needs to be a federal one in order to make the act stronger and in order to make it more accessible to businesses. And we would love to see the model move from simple transparency into remediation for best practice.
2.32
At the state level, the New South Wales Parliament passed the Modern Slavery Act 2018 (NSW) in June 2018. However, ‘the Act has not commenced and so its directions are not in force.’
2.33
Professor Burn, Anti-Slavery Australia stated that ‘the New South Wales government has indicated that the act will be introduced back into parliament shortly.’ Anti-Slavery Australia stated that it understood that:
[The New South Wales Modern Slavery Act] will be amended and will be intended to harmonise more with the Commonwealth Modern Slavery Act. Yet some parts of the New South Wales Modern Slavery Act will be retained in the amended version. I haven’t seen that bill, but the [New South Wales] government has said that it would include an antislavery commissioner.
2.34
Walk Free compared the approach of Australia’s Modern Slavery Act to proposed European Union (EU) legislation, stating ‘from a legislative perspective, the human rights due diligence laws that are being tabled for the European Union go far beyond what the [Australian] Modern Slavery Act does and could be another key example of where regulations around trade can include far greater human rights visibility and accountability.’
2.35
Regarding the ‘EU due diligence guidelines,’ DFAT commented that it is ‘well aware of and keeping apprised of [them] in terms of their development.’
Family Law Act 1975
2.36
Anti-Slavery Australia stated that protections for forced marriage in the Family Law Act 1975 (Cth) apply to those under the age of 18, but that state-based ‘apprehended violence type orders’ are ‘not a good fit’ for those vulnerable to forced marriage over the age of 18:
Currently there are protections within the Family Law Act that apply to people who are under the age of 18, but, over the age of 18, things become a lot more complicated. The Family Law Act doesn’t provide the protective jurisdiction there. If a vulnerable young adult over the age of 18 is seeking some kind of protection, the only avenue that she—and it is almost always she—will have is to try and apply for a state based domestic and family violence order. The problem with these orders is they’re not a good fit with forced marriage, and that is often because the kind of conduct that results in forced marriages is nuanced and complex … It is unlikely that a state-based apprehended violence type order would be granted in the absence of direct physical violence or stalking.
Marriage Act 1961
2.37
The Department of Home Affairs/ABF stated that ‘the legal age for marriage in Australia is 18’, and advised that are some circumstances where marriage between for a person between 16 and 18 years of age may occur in Australia:
... the Marriage Act provides that judicial authorisation may be given in exceptional and unusual circumstances to a person who is domiciled in Australia and aged between 16 and 18 years, and seeks to marry another person who is over 18 years of age, if there is parental consent. It is otherwise an offence under the Marriage Act to marry a person not of marriageable age, and a penalty of 5 years’ imprisonment may apply.
2.38
For marriages that have occurred overseas, the Department of Home Affairs/ABF stated that ‘foreign marriages where either party is aged between 16-18 are also recognised in Australia in certain circumstances’:
This may include, for example, an overseas marriage recognised by Australian law where both parties were at least 16 years old at time of marriage, the marriage was valid in the country in which it was solemnised, and neither party to the marriage was domiciled in Australia at the time of marriage.
2.39
Concerns with the exceptions available for persons of 16 or 17 years of age to marry in Australia were raised by Walk Free:
While these [legislative] steps are significant, Australia has not yet addressed gaps in respect of child marriages. Specifically, Australia does not have a minimum age of marriage set at 18 years without exception. Currently, persons of 16 and 17 years of age can marry, subject to parental approval and the judge being satisfied that there the facts are “so exceptional and unusual as to justify” the marriage being approved.
2.40
Anti-Slavery Australia also stated that ‘raising the marriageable age to 18’ within Australia ‘would positively impact on the prevalence of forced marriage.’
Enforcement
2.41
The AFP stated that it ‘is focused on the prevention, disruption, and investigation of modern slavery and human trafficking practices – including forced marriage – and the protection and support of victims.’ The AFP elaborated that it takes a ‘victim-centric approach in dealing with all human trafficking matters – including forced marriage’.
2.42
‘In human trafficking and slavery matters,’ the AFP stated it ‘considers disruption and intervention outcomes which result in the removal of victims from harm to be as significant an outcome as a successful prosecution.’
2.43
The AFP stated that it ‘works collaboratively with domestic and international law enforcement partners, industry and non-government organisations (NGOs)’, and elaborated:
The AFP receives the majority of its reports of modern slavery and human trafficking matters from NGOs, schools, medical providers and members of the victim’s community. Reports can also come from witnesses of alleged offences, state and territory police services and other Commonwealth agencies including the Department of Foreign Affairs and Trade (DFAT) and the ABF.
2.44
ACRATH stated that ‘civil society working together with government is a good example of good practice’ and highlighted that ‘an example of that is the Federal Police had 93 referrals’ through civil society organisations ‘in a 12-month period from 2019 to 2020.’
International legal framework and norms
2.45
Commitments to eliminate child and forced marriage have also been included in international treaties and agreements, setting out baseline norms and expectations globally. In particular, the United Nations (UN) Sustainable Development Goal 5.3 commits to ‘eliminate all harmful practices, such as child, early and forced marriage and female genital mutilation’ by 2030.
2.46
The inclusion of the elimination of child and forced marriage as a UN Sustainable Development Goal had led to regular reporting to countries to UNICEF on indicators of child and forced marriage.
2.47
Certain international instruments were raised to the attention of the Committee by inquiry participants. Central international instruments that identify norms and principles relevant to child and forced marriage issues include the:
Universal Declaration of Human Rights (1948);
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956)
Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962);
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979);
Convention on the Rights of the Child (CRC) (1990); and
2.48
The 1948 Universal Declaration of Human Rights states that:
Men and women of full age, without limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
Marriage shall be entered into only with the free and full consent of the intending spouses.
2.49
Walk Free stated that the 1956 Slavery Convention defines child and forced marriage ‘as practices “similar to slavery”‘. Article 1 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956 obligates countries to take ‘all practicable and necessary legislative and other measures’ to bring about the abolition of institutions and practices that amount to forced marriage. Parties to the convention also committed in Article 2:
… to prescribe, where appropriate, suitable minimum ages of marriage, to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority, and to encourage the registration of marriages.
2.50
The UN 1962 Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, requires countries to take legislative action to specify a minimum age for marriage (with the non-binding recommendation of 15 years of age accompanying the Convention). Further, it determines that ‘no marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses’.
2.51
There is a close link between forced marriage and child marriage. Family Planning NSW stated that ‘governments need to be accountable and responsible in protecting the rights of a child especially those who had signed up to the Convention on the Rights of the Child.’
2.52
While the Convention on the Rights of the Child (CRC) does not directly address child marriage, it considers for the purposes of the convention, a child is ‘every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier’.
2.53
Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) calls for men and women ‘to enter into marriage only with their free and full consent’ and states that countries will recognise that:
The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.
Concluding comment
2.54
The commitment to eliminate child and forced marriage by 2030 as part of the UN Sustainable Development Goals has provided an international focus on the issue. The Committee heard that, while prior to the COVID-19 pandemic, positive progress had been recorded in the global elimination of child and forced marriage, the achievement of this goal remains in doubt.
2.55
The impacts of the COVID-19 pandemic are discussed further in Chapter 4.
2.56
The Committee acknowledges evidence from Walk Free that the prevalence rates available are assumed to be underestimating the real rate of child and forced marriage globally, due to the challenges and inconsistencies in data collection and reporting.
2.57
The Committee heard publicly available information for prevalence rates of child and forced marriage within Australia was limited. The Committee acknowledges that discerning whether a marriage has occurred without full and free consent is challenging, and this impacts the ability to collect data on forced marriage cases.
2.58
The categories of cases seen by non-government organisations operating in Australia provide a picture of what child and forced marriage looks like in Australia. It is an issue that affects both Australian permanent residents and citizens who may be taken overseas to marry against their will or coerced to marry in Australia; as well as women who migrate to Australia and find they are not in a marriage that they agreed to.
2.59
The Committee acknowledges that both the international and domestic legal frameworks situate child and forced marriage issues alongside modern slavery and human trafficking issues. However, the Committee also acknowledges that there are a number of sensitivities that distinguish child and forced marriage from other forms of human trafficking or slavery-like practices.
2.60
In recent years there has been legislative activity to revise the Australian Government’s approach to human trafficking and modern slavery, including child and forced marriage. The domestic legal framework highlights the role of the Australian Federal Police and Australian Border Force, both in Australia and outside of Australia in relation to monitoring and enforcement.
2.61
International norms are indicated by the set of treaties and agreements that have been made over the years. While there is variation between international jurisdictions in their approach to child marriage, such as the age where marriage will be recognised, a right to free and full consent in entering marriage has been asserted in international forums.
2.62
In addition to the work of civil society organisations in monitoring rates of child and forced marriage, the key international institutions administering treaties, such as the United Nations, indicate the avenues through which compliance checks and monitoring globally may occur.
2.63
While child and forced marriage is criminalised in Australia, inquiry participants raised concerns about the applicability and extent of protections available to those facing forced marriage situations. These concerns are discussed further in Chapters 5 and 6.
2.64
The Committee recommends that the Australian Government support efforts to collect gender-disaggregated data on the prevalence of child and forced marriage globally.
2.65
The Committee recommends that the Australian Government improve the publication of data on the child and forced marriage rates within Australia, and in particular improve communication of this data to non-government organisations supporting individuals in, or at risk of, child and forced marriage.