House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Nicola Roxon MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The objective of the Bill is to strengthen and expand the capability of investigators and prosecutors to combat people trafficking and slavery, in particular for the purposes of labour exploitation, and to facilitate the prosecution of these offences.

The Bill amends the slavery and people-trafficking related offences in the Criminal Code Act 1995 to ensure the broadest range of exploitative behaviour is captured and criminalised. Measures include the introduction of new offences of forced labour and forced marriage. The Bill also amends the Crimes Act 1914 to increase the availability of reparation orders to individual victims of Commonwealth offences, including people trafficking.

Specifically, the Bill will:

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introduce new offences of forced labour, forced marriage, harbouring a victim, and organ trafficking - consequential amendments to the Telecommunications (Interception and Access) Act 1979 (TIA Act) will classify these new offences as 'serious offences' under the TIA Act enabling the interception of communications

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ensure the slavery offence applies to conduct which renders a person a slave, as well as conduct involving a person who is already a slave

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extend the application of the existing offences of deceptive recruiting and sexual servitude so they apply to non-sexual servitude and all forms of deceptive recruiting

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increase the penalties applicable to the existing debt bondage offences, to ensure they adequately reflect the relative seriousness of the offences - consequential amendments to the TIA Act will classify these offences as 'serious offences' under the TIA Act enabling the interception of communications

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broaden the definition of exploitation under the Code to include a range of slavery-like practices

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amend existing definitions into the Code to capture more subtle forms of coercion, including psychological oppression and the abuse of power or a person's vulnerability,

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clarify that the phrase 'omission to perform an act that by law there is a duty to perform' in subsection 4.3(b) of the Code (dealing with implied omissions) encompasses not only those duties imposed under Commonwealth law, but also imposed under a State or Territory law or at common law;

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improve the availability of reparations to individual victims of Commonwealth offences, including slavery and people trafficking.

Human rights implications

The Bill promotes the following rights:

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the absolute right to freedom from slavery and forced labour: by introducing a standalone forced labour offence and forced marriage offence, expanding the slavery offence so that it applies to a person not yet a slave, and expanding servitude and deceptive recruiting so that they apply to non-sexual servitude and all forms of deceptive recruiting.

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the rights of children to protection against exploitation, violence and abuse: by increasing the ability to investigate and prosecute exploitative practices (by introducing new offences and expanding definitional aspects of existing crimes) including those listed under international human rights conventions such as economic exploitation of children, sexual abuse or exploitation of children and trafficking of adults and children.

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the right to respect for the family, specifically that no marriage shall be entered into without the free and full consent of the intending spouses: by criminalising forced marriage.

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the right to an effective remedy: by increasing the ability to prosecute trafficking and slavery offences and increasing the availability of reparation orders to individual victims of Commonwealth crimes.

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the right to work and rights in work: by criminalising forced labour and expanding deceptive recruiting to apply to all forms of work, therefore promoting legal and safe working conditions.

The Bill also limits the right to privacy. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation, and that everyone has the right to the protection of the law against such interference or attacks. The right to privacy may be subject to permissible limitations. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.  Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity. In essence, this will require that limitations:

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serve a legitimate objective

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adopt a means that is rationally connected to that objective, and

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the means adopted are not more restrictive than they need to be to achieve that objective.

The consequential amendments to the TIA Act will classify the new offences of forced labour, forced marriage, harbouring a victim, and organ trafficking as well as the amended offences of debt bondage as 'serious offences' for the purposes of the TIA Act, which will enable law enforcement agencies to obtain warrants to intercept communications of persons of interest, including third persons they are likely to be in contact with, for the purpose of investigating these crimes.

The powers to intercept communications will be prescribed under the TIA Act and will therefore be authorised by law.

The limitation on privacy serves the legitimate objective of investigating and prosecuting slavery and people trafficking-related offences. This legitimate objective reflects the absolute right to freedom from slavery and forced labour contained in Article 8 of the ICCPR. Australian authorities are increasingly identifying situations of exploitation that are beyond the scope of the current slavery and people-trafficking related offences. It is necessary to ensure that law enforcement agencies have the means to investigate the new offences of forced labour, forced marriage, harbouring a victim, and organ trafficking, as well as the amended offences of debt bondage in the same manner as the current slavery and people trafficking-related offences.

Prosecutions reveal that offenders of slavery and people-trafficking offences are often reliant on mobile phone services to organise such crimes. It is therefore very likely that interception would reveal valuable evidence which will improve the ability of law enforcement agencies to investigate and prosecute these crimes. This is particularly pertinent in an area of crime where a victim's testimony is often the primary source of evidence. Implementing the consequential amendments to the TIA Act will ensure that enforcement agencies have the power to investigate the new slavery and people-trafficking related offences in the same way they currently investigate similar serious crimes and to prosecute offenders.

Less restrictive alternatives to telecommunications interceptions, such as witness testimony, have proven to provide insufficient evidence for the prosecution of offences similar to those proposed by the Bill. This is particularly the case when witnesses are reluctant to testify. In light of the fact that the offences under the Bill, by their nature, are extremely difficult to investigate, a reliance on voluntary testimonies is an insufficient mechanism.

The ability of law enforcement agencies to intercept communications is limited to the investigation of serious offences for the purposes of the TIA Act, where agencies have applied for, and been issued, an interception warrant by an issuing authority. Issuing authorities may be eligible Judges or nominated Administrative Appeals Tribunal members. The TIA Act requires that in deciding whether to issue an interception, an issuing authority must have regard to how much the privacy of any person or persons would be likely to be interfered with by interception under a warrant. This provides a strict judicial oversight mechanism to prevent arbitrary interference to privacy.

The TIA Act strictly regulates the use and communication of information obtained by law enforcement agencies under interception warrants.  Any information collected may only be used for defined purposes and purposes connected with the investigation of serious offences. The TIA Act also imposes a number of recordkeeping and accountability requirements, including a requirement for law enforcement agencies to record particulars of, and report information about, the 'use' and 'communication' of intercepted information.  Communications are destroyed where the Chief Officer of the agency is satisfied that the record is no longer required for a purpose permitted by the legislation.

Persons affected by an interception warrant have relevant judicial avenues through which to challenge the validity of the interception and the use of any intercepted communications. They also have the right to access communications being used as evidence against them during prosecution.

The provisions of the Bill do not affect rights to a fair trial and fair hearing, the presumption of innocence and minimum guarantees in criminal proceedings, nor do they affect existing legislation relating to procedural fairness. The Bill and TIA Act do not result in the possibility of certain evidence being declared inadmissible, and any potential inadmissibility determined by a court on the grounds of public interest, resulting in inadequate disclosure of evidence before the accused, would be due to powers proscribed under the relevant laws of evidence.

Conclusion

The Bill is compatible with human rights because it advances the protection of human rights, specifically the right to freedom from slavery and forced labour, and to the extent that it limits human rights, specifically the right to privacy, these limitations are reasonable, necessary and proportionate.