Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (6 of 2013)

Schedule 1   Criminal Code amendments

Criminal Code Act 1995

12   Sections 270.4 to 270.9 of the Criminal Code

Repeal the sections, substitute:

Subdivision C - Slavery-like conditions

270.4 Definition of servitude

(1) For the purposes of this Division, servitude is the condition of a person (the victim ) who provides labour orservices, 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 aspects of his or her life other than the provision of the labour or services.

(2) Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person.

(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.

270.5 Servitude offences

Causing a person to enter into or remain in servitude

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct causes another person to enter into or remain in servitude.

Penalty:

(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 20 years; or

(b) in any other case - imprisonment for 15 years.

Conducting a business involving servitude

(2) A person commits an offence if:

(a) the person conducts any business; and

(b) the business involves the servitude of another person (or persons).

Penalty:

(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 20 years; or

(b) in any other case - imprisonment for 15 years.

Alternative verdict of forced labour

(3) Subsection (4) applies if, in a prosecution for an offence (the servitude offence ) against a provision listed in column 1 of the following table, the trier of fact:

(a) is not satisfied that the defendant is guilty of that offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the forced labour offence ) against the corresponding provision listed in column 2 of the table.

(4) The trier of fact may find the defendant not guilty of the servitude offence, but guilty of the forced labour offence, so long as the defendant has been afforded procedural fairness in relation to that finding of guilt.

270.6 Definition of forced labour

(1) For the purposes of this Division, forced labour is the condition of a person (the victim ) who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person in the position of the victim would not consider himself or herself to be free:

(a) to cease providing the labour or services; or

(b) to leave the place or area where the victim provides the labour or services.

(2) Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person.

(3) The victim may be in a condition of forced labour 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.

270.6A Forced labour offences

Causing a person to enter into or remain in forced labour

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct causes another person to enter into or remain in forced labour.

Penalty:

(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 12 years; or

(b) in any other case - imprisonment for 9 years.

Conducting a business involving forced labour

(2) A person commits an offence if:

(a) the person conducts any business; and

(b) the business involves the forced labour of another person (or persons).

Penalty:

(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 12 years; or

(b) in any other case - imprisonment for 9 years.

Note: On a trial for an offence against section 270.5 (servitude offences), the trier of fact may find a defendant not guilty of that offence but guilty of the corresponding offence under this section (see subsections 270.5(3) and (4)).

270.7 Deceptive recruiting for labour or services

A person (the recruiter ) commits an offence if:

(a) the recruiter engages in conduct; and

(b) the recruiter engages in the conduct with the intention of inducing another person (the victim ) to enter into an engagement to provide labour or services; and

(c) the conduct causes the victim to be deceived about:

(i) the extent to which the victim will be free to leave the place or area where the victim provides the labour or services; or

(ii) the extent to which the victim will be free to cease providing the labour or services; or

(iii) the extent to which the victim will be free to leave his or her place of residence; or

(iv) if there is or will be a debt owed or claimed to be owed by the victim in connection with the engagement - the quantum, or the existence, of the debt owed or claimed to be owed; or

(v) the fact that the engagement will involve exploitation, or the confiscation of the victim’s travel or identity documents; or

(vi) if the engagement is to involve the provision of sexual services - that fact, or the nature of sexual services to be provided (for example, whether those services will require the victim to have unprotected sex).

Penalty:

(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 9 years; or

(b) in any other case - imprisonment for 7 years.

270.7A Definition of forced marriage

(1) For the purposes of this Division, 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.

(2) For the purposes of subsection (1), marriage includes the following:

(a) a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901;

(b) a marriage recognised under a law of a foreign country;

(c) a relationship registered (however that process is described) under a law of a foreign country, if the relationship is of the same, or a similar, type as any registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901;

(d) a marriage (including a relationship or marriage mentioned in paragraph (a), (b) or (c)) that is void, invalid, or not recognised by law, for any reason, including the following:

(i) a party to the marriage has not freely or fully consented to the marriage (for example, because of natural, induced or age-related incapacity);

(ii) a party to the marriage is married (within the meaning of this subsection) to more than one person.

Note: Section 2E of the Acts Interpretation Act 1901 covers relationships registered under a law of a State or Territory that are prescribed by regulations under that Act.

(3) Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person.

270.7B Forced marriage offences

Causing a person to enter into a forced marriage

(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.

Penalty:

(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 7 years; or

(b) in any other case - imprisonment for 4 years.

Being a party to a forced marriage

(2) A person commits an offence if:

(a) the person is a party to a marriage (within the meaning of section 270.7A); and

(b) the marriage is a forced marriage; and

(c) the person is not a victim of the forced marriage.

Penalty:

(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 7 years; or

(b) in any other case - imprisonment for 4 years.

(3) Strict liability applies to paragraph (2)(c).

Note: For strict liability, see section 6.1.

(4) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3)).

270.8 Slavery-like offences - aggravated offences

(1) For the purposes of this Division, a slavery-like offence committed by a person (the offender ) against another person (the victim ) is an aggravated offence if any of the following applies:

(a) the victim is under 18;

(b) the offender, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;

(c) the offender, in committing the offence:

(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and

(ii) is reckless as to that danger.

(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.

(3) 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.

(4) Subsection (3) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the corresponding slavery-like offence.

270.9 Slavery-like offences - jurisdictional requirement

Section 15.2 (extended geographical jurisdiction - category B) applies to a slavery-like offence.

270.10 Slavery-like offences - relevant evidence

(1) For the purposes of proceedings for a slavery-like offence, the trier of fact may have regard to any of the matters covered by subsection (2) in determining whether a person (the alleged victim ) against whom the offence is alleged to have been committed has been coerced, threatened or deceived.

(2) The following matters are covered by this subsection:

(a) the economic relationship between the alleged victim and the alleged offender;

(b) the terms of any written or oral contract or agreement between the alleged victim and the alleged offender;

(c) the personal circumstances of the alleged victim, including but not limited to:

(i) whether he or she is entitled to be in Australia under the Migration Act 1958; and

(ii) his or her ability to speak, write and understand English or another language; and

(iii) the extent of his or her social and physical dependence on the alleged offender.

(3) Subsection (1) does not:

(a) prevent the leading of any other evidence in the relevant proceedings; or

(b) limit the manner in which evidence may be given or the admissibility of evidence.

Subdivision D - Offences against Division 270: general

270.11 Offences against Division 270 - no defence of victim consent or acquiescence

To avoid doubt, it is not a defence in a proceeding for an offence against this Division that a person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence.