Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)

Schedule 4 - Slavery offences: jurisdiction

GENERAL OUTLINE

Schedule 4 amends the Criminal Code Act 1995 (the Code) to clarify that the slavery offences in section 270.3 have universal jurisdiction.

This approach accords with the prohibition of slavery as a jus cogens (peremptory) norm of customary international law - meaning that it is non-derogable and applies at all times and in all circumstances - and one that is expressly prohibited by a number of treaties to which Australia is a party.

It is also in keeping with Australia's recognition of universal jurisdiction as a well-established principle of international law, and one which extends to a range of crimes including piracy, genocide, war crimes, torture and other crimes against humanity.

Criminal Code Act 1995

Item 1 - At the end of Subdivision B of Division 270 of the Criminal Code

This item inserts a new section 270.3A of the Code, which provides that the slavery offences in section 270.3 have universal jurisdiction.

Currently, slavery is criminalised under section 270.3 of the Code; however, the geographical jurisdiction of these offences is not specified. Where jurisdiction is not explicit in the Code, standard geographical jurisdiction (limited to conduct occurring wholly or partly in Australia) applies unless a contrary intention appears.

The Explanatory Memorandum to the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 notes the offences apply 'whether the conduct occurs inside or outside Australia and whether or not the offender is an Australian national', suggesting the intention in creating the slavery offences was that they would have universal jurisdiction.

The extension of jurisdiction will ensure agencies are able to investigate and prosecute these offences wherever they occur.

This item also inserts a new section 270.3B, which specifies the Attorney General's permission to prosecute is required where a slavery offence takes place wholly outside of Australia's territory. This approach is consistent with other Code offences with universal jurisdiction.

Item 2 - Application of amendment

This item specifies that the amendment in item 1 applies in relation to offences committed on or after the commencement of this Schedule.