George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

On the last point that Senator Ludwig makes, I am prepared to accept his assurance that there has been legislation passed by previous non-Labor governments or supported by the non-Labor side of politics in years gone by, which have contained in different contexts somewhat similar group liability provisions.

Senator Ludwig can I say to you, with awful candour, that I do not say that everything the opposition has ever done has been perfect. I do not say that everything that the coalition has done in government, or even said in opposition, has been perfect. There is no argument, with respect Senator Ludwig—and I see by your cherubic smile that you agree with me, or seem to agree with me—to say that because this mistake was made in the past it should be perpetuated again in the present. Or this error of judgement; if not mistake, this error of judgement—this error of legislative drafting judgement.

Coming to the substance of the issue: Senator Ludwig contends that the reason proposed subsection 2 of section 270.7B should remain in the bill is because it may operate in circumstances in which the other party to a forced marriage was aware of the coercion, but was not a participant in the coercion. That effectively is what Senator Ludwig is saying: that that person is the non-innocent party and is aware of the coercion, but was not causative of or instrumental in the coercion. Senator Ludwig I have to say to you with respect, particularly when it comes to the fulfilment of a ceremony of marriage, and especially in view of the breadth of the definition of coercion, it is very difficult to see how a person who goes to the altar or goes before a marriage celebrant knowing the other person has been coerced into being present nevertheless persists with the ceremony and says, 'I do'.

It is almost inconceivable that they would not be regarded as thereby a party to, or at least an accessory to, the coercion; and therefore caught by, as I said in my remarks a little while ago, part 2.4—that is, the accessories provision of the existing Criminal Code. So I adhere to my view that the example you posit would be caught by the principal offence-creating provision, subsection1.

But what you have not addressed, Senator Ludwig, is this: you have said, 'Well, there might be a circumstance in which there is knowledge on the part of the other person who is to undertake the marriage ceremony that the putative spouse has been coerced'; but subsection 2 does not work on knowledge. Knowledge is not an element of subsection 2. The elements of subsection 2 are: the fact that the person is a party to a forced marriage, so subsection 2 depends upon the subsection 1 requirements having been established to show that it is a forced marriage and that they are not the victim—in other words, they are the other party. Knowledge of the circumstances of coercion—knowledge of the fact that it is a forced marriage—is not an element of the offence; which of course means that it not only would capture people in the circumstances that you posit, who as I say in my view would in any event have committed the principal offence, but it also captures people who were not aware of the coercion. The very, very unusual, but I suppose theoretically possible, circumstance of a party to a proposed marriage going through the ceremony unaware that his or her proposed spouse had been the victim of coercion does not depend on knowledge.

So you have not answered the question, with respect, Senator Ludwig, of why it is that somebody in that situation should be held to have committed a crime when, in the absence of knowledge of the wrongful conduct of the coercion, they have done nothing wrong. They, in a sense, are themselves a victim, not a wrongdoer. And the legislation, as I pointed out before, seems to implicitly concede that by saying, 'Well, the only way we can get you is by imposing strict liability'—because we do not absent the unusual requirement of strict liability, say to somebody who was completely innocent of the circumstances of wrongdoing, 'You have committed a crime.' So, Senator Ludwig, I hear what you say but the opposition is entirely unpersuaded by your arguments.