As reported in the news, a Melbourne man is set to be the first person convicted under Federal forced marriage laws despite the practice being criminalised in 2013. Because the laws make it extremely difficult to get a conviction (as they generally rely on victims testifying), South Australia has taken an unprecedented step of introducing a child marriage offence as part of its new raft of child protection changes. In a first for Australian state and territory jurisdictions, schools in South Australia now need to be aware of new mandatory notification obligations when children are harmed or at risk of harm through being taken across state borders for the purposes of child marriage. The changes are yet to commence but School Governance anticipates the new obligations will commence in 2018.
Current Federal laws on forced marriage
Under Section 270.7A of the Criminal Code Act 1995 (Cth), there is a forced marriage where one party to the marriage enters into the marriage without fully and freely consenting because of the use of coercion, threat or deception, or because the party was incapable of understanding the nature and effect of the marriage ceremony. There are penalties of imprisonment for forced marriage and it is an aggravated offence where children (under the age of eighteen) are involved. There are also penalties of imprisonment for being a party to a forced marriage.
The current Federal laws protect marriages in Australia and overseas, and it is important to acknowledge that forced marriages often involve threats, imprisonment, violence, emotional abuse, forced sex, forced pregnancy, and being forced to leave school, which are all forms of child abuse. According to Australian Federal Police (AFP) reports, there were 69 incidents of forced marriage investigated in the 2015-2016 financial year around Australia, with a third of those cases coming from Victoria. The current Melbourne case is the first successful conviction under forced marriage laws.
However, the case has also highlighted shortcomings in the current Federal laws, particularly in the effectiveness of warning and prevention strategies used by the community and the AFP. In this case, the girl’s mother was warned by the AFP of the illegal nature of the marriage but persisted, with the Imam who performed the ceremony also convicted of forced marriage offences. Anti-Slavery Australia director Professor Jennifer Burn said young people facing forced marriage were often hesitant to seek help and that the best strategies to avoid forced marriage were through early intervention programs and prevention programs in schools and communities.
South Australia’s revolutionary approach to child marriage
As we have previously reported, South Australia has introduced a raft of new child protection changes through the Children and Young People (Safety) Act 2017 (SA). A small part, but no less important, is the addition of Division 8A to the Criminal Law Consolidation Act 1935 (SA) which creates a new offence of child marriage. This has effectively doubled the penalty for removing a child from the State or bringing a child into the State for the purposes of child marriage, and includes child marriage as a mandatory reporting obligation, specifically for teachers, employees or volunteers in an organisation that provides health, welfare, education, sporting, recreational, child care or residential services wholly or in part for children or young people.
Despite the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) not yet handing down their final report until 15 December 2017, South Australia has become the first state or territory to mandate reporting obligations for child marriage, and it is anticipated that these changes will come into effect in 2018.