Footnotes

[1] Explanatory Memorandum, p. 1.

[2] The overview of the Bill is drawn from the Bills Digest prepared by the Parliamentary Library in respect of the Bill. See Bills Digest No. 96, 2004-05.

[3] This aspect of the offence is discussed in detail at paragraphs 2.74 to 2.76 of this report.

[4] Explanatory Memorandum, p. 1. See also Second Reading Speech, Senator the Hon Chris Ellison, Minister for Justice and Customs, Senate Hansard, 8 December 2004, p.2

[5] Article 3(a) of the Protocol.

[6] HREOC, Submission 9A, p. 5; HREOC, Committee Hansard, 23 February 2005, p. 3.

[7] Article 3(c) of the Protocol. A 'child' is defined in Article 3(d) for the purposes of the Protocol to mean any person under eighteen years of age.

[8] Article 3(b) of the Protocol.

[9] See, for example, HREOC, Submission 9, p.2 and World Vision, Submission 12, pp.3-4.

[10] That is, an element of the proposed trafficking offences in proposed sections 271.2 and 271.5 is that the defendant's use of force or threats must result in the defendant obtaining the victim's consent to their entry or receipt into, or transport within, Australia.

[11] See, for example, HREOC, Submission 9, pp. 4-5; World Vision, Submission 12, pp. 3-4; Project Respect, Submission 6, Attachment, pp.8, 10.

[12] CATWA, Submission 13, p. 1

[13] See, for example, HREOC, Submission 9, p. 5.

[14] Submission 17A, pp. 6-7.

[15] See proposed subsections 271.2(1) and 271.5(1). The elements of the trafficking offence in proposed subsection 271.2(1), for example, are: (i) the defendant organises or facilitates the entry, proposed entry or receipt of another person into Australia; (ii) the defendant uses force or threats; and (iii) that use of force or threats results in the defendant obtaining the other person’s consent to that entry, proposed entry or receipt. The provision does not require that the entry, proposed entry or the receipt of another person into Australia be for one or more of the forms of 'exploitation' listed in Article 3(a) of the Protocol.

[16] HREOC, Submission 9, page 5. The deception offences in proposed sections 270.7(1) and 271.2(2) require that a person must be deceived about matters which would fall with the definition of 'exploitation' in Article 3(a) of the Protocol'. Similarly, the new trafficking in children offences in proposed section 271.4 require, among other things, proof of recklessness or an intention on the part of the defendant that the child 'will be used to provide sexual services or be otherwise exploited'.

[17] See Division 73 of the Criminal Code and Division 12 of the Migration Act 1958 (Cth).

[18] HREOC, Submission 9, pp. 4-6. World Vision, Submission 12, p. 12 of Attachment.

[19] Mr Lenehan, Committee Hansard, 23 February 2005, p. 2.

[20] Submission 17A, p. 6.

[21] See proposed sections 271.2 and 271.5 in the Bill.

[22] The means of trafficking prohibited under the Protocol are listed in paragraph 2.5 above.

[23] Submission 6, Attachment, p. 10.

[24] HREOC, Submission 9, p. 4; CATWA, Submission 13, p.1

[25] Explanatory Memorandum, p.4.

[26] HREOC, Submission 9, pp. 2-3; Western Australian Police Service, Submission 11, p. 2; Project Respect, Submission 6, Attachment, p.4. See also Catholic Woman's League argued Inc. Submission 14, p.3. The Catholic Woman's League argued that the definition of 'sexual servitude' should be amended to protect women who consent to work in the sex industry, but who are deceived about the conditions of work. See also Parliamentary Joint Committee on the Australian Crime Commission, Australian Crime Commission's response to trafficking in women for sexual servitude, June 2004, pp. 52-53.

[27] See, for example, HREOC, Submission 9, p.3 and Ms Fairfax, World Vision, Committee Hansard at p. 25. Parliamentary Joint Committee on the Australian Crime Commission, Australian Crime Commission's response to trafficking in women for sexual servitude, June 2004, pp. 52-53.

[28] Parliamentary Joint Committee on the Australian Crime Commission, Australian Crime Commission's response to trafficking in women for sexual servitude, June 2004, pp. 51-53.

[29] HREOC, Submission 9, p. 3.

[30] HREOC, Submission 9, p. 3; Project Respect, Submission 6, Attachment, p. 7.

[31] Committee Hansard, 23 February 2005, p. 44. See also Submission 17, p.7

[32] Proposed section 271.1 will provide that 'threat' includes a threat of force, removal from Australia, or 'a threat of any other detrimental action', unless there are reasonable grounds for that threat.

[33] Submission 17A, pp. 1-2. The Attorney-General's Department also noted that these amendments were the Government's response to the recommendations of the PJCACC mentioned in paragraph 2.23 above.

[34] Submission 17A, p. 1.

[35] Second Reading Speech, Senator the Hon Chris Ellison, Minister for Justice and Customs, Senate Hansard, 8 December 2004, p. 2.

[36] See, for example, World Vision, Submission 12, pp. 8-9 and 13- 15 of the Attachment.

[37] Ibid., p. 8.

[38] Item 11 of the Bill inserts into the Criminal Code a definition of 'exploitation' which provides that 'exploitation' shall be taken to occur where an exploiter's conduct causes a victim to enter into slavery, forced labour or sexual servitude. This definition also refers to organ removal which is not relevant to the discussion on this point.

[39] Section 270.1 of the Criminal Code.

[40] See Items 12 and 13 of the Bill and subsection 73.2(3) of the Criminal Code.

[41] See Dictionary and section 270.4 of the Criminal Code.

[42] See Item 15 of the Bill.

[43] World Vision, Submission 12, pp. 8-9 and 13-15 of the Attachment. HREOC noted that, in its view, the term 'other forms of sexual exploitation' in the Protocol's definition of exploitation is not limited to a commercial context. Mr Lenehan, HREOC, Committee Hansard, 23 February 2005, pp.2-3. The problems posed by attempting to fit 'exploitation' as defined by the Protocol into the concepts of 'slavery', 'forced labour' or 'sexual servitude', as defined, are also discussed at paragraphs 2.40-2.43 below.

[44] HREOC, Submission 9A, p.4.

[45] See World Vision, Submission 12, pp 2-5. World Vision cited cases in which children have been brought to Australia to be sexually abused. Examples of non-commercial sexual exploitation of children include trafficking for the purpose of making pornography for personal use or for private sex abuse, including sexual exploitation by friends and associates.

[46] Committee Hansard, 23 February 2005, p. 49.

[47] HREOC noted that the Bill's Explanatory Memorandum also indicates that 'exploited' as used in this context is to be defined by reference to the Bill's definition of 'exploitation'. It states that the definition of 'exploitation' in the Bill applies to the trafficking in children offence. Submission 9A, p.3.

[48] See Second Reading Speech, Senator the Hon Chris Ellison, Minister for Justice and Customs,, Senate Hansard, 8 December 2004, p. 4, as noted by HREOC in Submission 9A, p.5.

[49] See discussion at para's 2.6-2.7 and 2.9-2.11 above.

[50] Submission, 12, p.3 and pp. 12-13 of Attachment. See also CATWA, Submission 13, pp. 2, 3-4.

[51] Submission 12, p. 6

[52] ibid, p. 8.

[53] Examples of a servile marriage include situations where: a woman, without the right to refuse, is given in marriage on payment of money or a gift to her parents; a husband, his family or his clan have the right to transfer the husband's wife to another person for money or a gifts; or where a woman on the death of her husband is liable to be inherited by another person.

[54] Submission 9A, pp. 5-6.

[55] ibid, pp. 5-7.

[56] ibid, p. 6. See footnote 10 of that Submission.

[57] Submission 17A, pp. 5, 14-15; Committee Hansard, 23 February 2005, pp. 48-49.

[58] Submission 17A, pp.7 -8. The Department did note the exception of the community awareness strategy which is specifically targeted at trafficking for sexual purposes.

[59] ibid, pp. 8, 15

[60] ibid, pp. 14-15.

[61] ibid, p .8

[62] Committee Hansard, 23 February 2005, p.47.

[63] Ms Fairfax, World Vision, Committee Hansard, 23 February 2005, (World Vision) p.27.

[64] ibid.

[65] See Item 10 of the Bill.

[66] Australian Crime Commission, Submission 8, p. 1. Project Respect also pointed to the evidentiary difficulties that the definition posed for any prosecution: Submission 6, pp. 7-8 of the Attachment.

[67] Submission 8, p. 1; see also Project Respect, Submission 6, page 7-8 of the Attachment.

[68] Australian Crime Commission, Submission 8, page 1; CATWA, Submission 13, p.2.

[69] Submission 9A, pp. 9-10.

[70] Submission 6, p. 8 of the Attachment.

[71] Submission 17A, p.3.

[72] ibid.

[73] ibid, p. 2.

[74] Submission 15, pp. 4-5. Section 3.1 of the Criminal Code provides that each offence shall consist of a physical element and a mental or fault element, such as intention or recklessness. This reflects the fact that fault must generally be proven for each physical element of an offence for a person to be guilty. Submission 17, p. 2.

[75] Ibid.

[76] These offences are created by proposed paragraphs 271.3(1)(b) and 271.6(1)(b).

[77] Submission 17, p. 2.

[78] Submission 15, pp. 6-7.

[79] Submission 17, p. 3.

[80] Section 15.4 of the Criminal Code.

[81] Submission 15, pp. 6-7.

[82] Category B jurisdiction, for example, provides that a person commits the offence if: the conduct constituting the alleged offence or a result of that conduct occur wholly or partly in Australia or on board an Australian aircraft or ship. The offence is also committed if the conduct occurs wholly outside Australia and the person is an Australian citizen, resident or body corporate incorporated in Australia. See section 15.2 of the Criminal Code.

[83] Submission 17, p. 4.

[84] World Vision, Submission 12, p. 9.

[85] ibid, pp. 14-15 of the Attachment.

[86] Submission 17A, pp. 4-5.

[87] Submission 9A, p. 12. HREOC noted that, if there were any doubts, it would support including an express reference to 'forced abortion' in the relevant provision of the Bill. However, it pointed out that forced abortions would seem to come within the definitions of 'harm' (ie, due to the danger of psychological harm) and of 'physical harm'.

[88] Dictionary of the Criminal Code.

[89] See, for example, Castan Centre, Submission 15, p. 5.

[90] Explanatory Memorandum, p. 7.

[91] Submission 2, p. 5.

[92] Submission 15, p. 5.

[93] Submission 17, pp. 4-5. Committee Hansard 23 February 2005, pp. 49-50.

[94] Section 133.1 of the Criminal Code.

[95] Submission 15, pp 7-8.

[96] Submission 17, pp. 4-5

[97] ibid.

[98] Ms Fawkes, Committee Hansard, 23 February 2005, pp. 18-19. World Vision also noted that the Bill appeared to focus undely on sexual exploitation. Ms Fairfax, Committee Hansard 23 February 2005, (World Vision), p. 29. Scarlet Alliance suggested, for example, that the proposed domestic trafficking in persons offence may impinge on the movement between States and Territories of those working in the legal sex industry.

[99] Network of Sex Projects, Submission 1, p. 1.

[100] Ms Fawkes, Committee Hansard, 23 February 2005, p. 17. World Vision also noted the legislation's significant focus on sex trafficking. Ms Fairfax, Committee Hansard, 23 February 2005, p. 26

[101] Submission 9A, p. 1.

[102] Committee Hansard, 23 February 2005, p. 19 (World Vision), and p. 11 (Scarlet Alliance).

[103] ibid, p. 19 (World Vision), and p. 12 (Scarlet Alliance).

[104] ibid, p. 11.

[105] Submission 4, p. 2.

[106] Committee Hansard, 23 February 2005, p. 28.

[107] ibid, p. 33.

[108] ibid.

[109] Submission 17, pp. 1-2.

[110] Committee Hansard, 23 February 2005, pp. 28-29, Submission 17, p. 1.

[111] Submission 15, p. 3.

[112] ibid, p. 4.

[113] Submission 17A, pp. 7-8 (as discussed earlier in this report).

[114] Committee Hansard, 23 February 2005, p. 28.

[115] Submission 15, p. 4.

[116] Submission 12, p. 6.

[117] ibid, p. 6; see also PJCACC, Australian Crime Commission's response to trafficking in women for sexual servitude, June 2004, pp. 52-53.

[118] PJCACC, Australian Crime Commission's response to trafficking in women for sexual servitude, June 2004, p. 52.

[119] Submission 9A, p. [8].

[120] Submission 17A, p. 6.

[121] Submission 12, p. 7; see also Ms Kayte Fairfax, World Vision, Committee Hansard, 23 February 2005, p. 18.

[122] Submission 12, p. 6.

[123] Submission 12, p. 7; see also Ms Kayte Fairfax, World Vision, Committee Hansard, 23 February 2005, p. 18.

[124] Committee Hansard, 23 February 2005, p. 22.

[125] Submission 12, Attachment A, p. 6; see also Ms Kayte Fairfax, Committee Hansard, 23 February 2005, p. 18.

[126] For a full list of relevant principles, see World Vision, Submission 12, Attachment A, p. 6.

[127] Submission 12, Attachment A, p. 11.

[128] ibid, p. 11.

[129] Submission 12, p. 7; see also Ms Kayte Fairfax, World Vision, Committee Hansard, 23 February 2005, p. 18.

[130] Ms Lee-May Saw, Australian Women Lawyers (appearing in conjunction with World Vision), Committee Hansard, 23 February 2005, pp. 21-22.

[131] Submission 12, p. 7.

[132] Australian Women Lawyers (appearing in conjunction with World Vision), Committee Hansard, 23 February 2005, p. 22.

[133] Submission 12, p. 7; see also Ms Kayte Fairfax, World Vision, Committee Hansard, 23 February 2005, p. 18.

[134] ibid.

[135] Submission 17A, p. 9.

[136] Submission 12, Attachment A, pp. 10-11.

[137] Law Council of Australia, Submission 7, p. 2.

[138] Australian Government Action Plan to Eradicate Trafficking in Persons, plan presented jointly by Attorney General, Minister for Foreign Affairs, Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Justice and Customs, and Minster Assisting the Prime Minister for the Status of Women, 2004.

[139] Action Plan, pp. 13-14.

[140] Formerly the Office of the Status of Women.

[141] See Office For Women website accessed 1 March 2005. http://ofw.facs.gov.au/international/combating_people_trafficking/index.htm

[142] Submission 9, p. [7].

[143] Committee Hansard, 23 February 2005, p. 3.

[144] Submission 12, Attachment A, p. 9.

[145] Ms Moyle, HREOC, Committee Hansard, 23 February 2005, p. 9.

[146] Submission 6, p. [2].

[147] Committee Hansard, 23 February 2005, p. 38.

[148] Committee Hansard, 23 February 2005, p. 38.

[149] Submission 16, p. [3].

[150] Project Respect, Submission 6, p. [2]; Ms Sally Moyle, HREOC, Committee Hansard, 23 February 2005, p. 24.

[151] Submission 16, p. [5].

[152] Submission 9, p. [7].

[153] Submission 6, p. [3].

[154] PJCACC, Inquiry into trafficking of women for sexual servitude, June 2004, recommendation 8, p. 57.

[155] Submission 13, p. [4]. The Catholic Women's League put forward a similar view in its submission to the PJCACC's 2004 inquiry into the trafficking of women for sexual servitude. (See Submission 14 to this inquiry, p. 3.)

[156] Submission 2, p. 11.

[157] Submission 4, p. 2.

[158] ibid.

[159] Submission 13, p. [3].