This Act overturned Division 12 of the Crimes Act 1900 (NSW), which criminalised obtaining, performing, or otherwise assisting an abortion. Abortion is now legal in New South Wales until 22 weeks of pregnancy. To procure an abortion after 22 weeks, the procedure must be performed in a hospital by a specialist practitioner in consultation with a second practitioner. Medical providers who have conscientious objections to abortion must provide patients with information about where they can receive an abortion.
New South Wales
Legislation
Public Health Amendment (Safe Access to Reproductive Health Clinics) Act (New South Wales) (2018)
The Act amends the Public Health Act 2010 No 127. It provides for 150-metre “safe access zones” around reproductive health clinics, which are intended to protect the safety and well-being of people entering and leaving such clinics, including employees. The Act creates offenses punishable with imprisonment for interfering with access to clinics (§ 98C), causing actual or potential distress or anxiety to persons in safe access zones (§ 98D), or for taking/distributing photographs of people in safe access zones (§ 98E). The Act also contains exemptions under § 98F, which states that Act does not prohibit conduct in a religious building, near Parliament House in Macquarie Street, Sydney; or “the carrying out of any survey or opinion poll by or with the authority of a candidate, or the distribution of any handbill or leaflet by or with the authority of a candidate, during the course of a Commonwealth, State or local government election, referendum or plebiscite.” In enacting the Act, NSW joined other Australian states and territories, which had already enacted laws banning the harassment of women seeking abortions.
On June 21, 2018, the NSW Parliament passed the Act to supplement existing criminal legislation both at the NSW (e.g., Crimes Act 1900 and Human Tissue Act 1983) and Commonwealth levels (e.g., the Criminal Code Act 1995). The Act defines “modern slavery” as “any conduct involving the use of any form of slavery, servitude or forced labour to exploit children or other persons taking place in the supply chains of government agencies or non-government agencies.” The Act provides for an Anti-slavery Commissioner and establishes a Modern Slavery Committee.
Division 10A concerns sexual servitude, which is defined as “the condition of a person who provides sexual services and who, because of the use of force or threats is not free to cease providing sexual services, or is not free to leave the place or area where the person provides sexual services.” Section 80D provides for up to 15 years’ imprisonment for any person causing (willfully or recklessly) or attempting to cause sexual servitude (and up to 20 years if the victim is under 18 or cognitively impaired). Section 80E provides for up to 15 years for any person conducting a business involving the sexual servitude of others, or who knows about, or is reckless as to, sexual servitude (and up to 19 years if the victim is under 18 or cognitively impaired).
Crimes (Domestic and Personal Violence) Act (New South Wales)
The Act aims to prevent, ensure accountability for, and apply standards set by the United Nations and the Declaration on the Elimination of Violence against Women to domestic violence. It aims to fulfill these objectives by “empowering courts to make apprehended domestic violence orders to protect people from domestic violence, intimidation (including harassment) and stalking” (§ 9(2)(a)). Intimidation is defined as: “conduct amounting to harassment or molestation of the person,” “an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing, and other technologically assisted means) that causes the person to fear for his or her safety,” or “any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property” (§ 7(1)). Stalking is defined as following, watching, frequenting the vicinity of or approaching a person’s place of residence, business or work, or any place that a person frequents for the purposes of any social or leisure activity (§ 8(1)). The Act (at Parts 3 and 4) gives courts the authority to issue orders relating to apprehended domestic or personal violence. The Act provides that a “person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm” may be punished with up to five years imprisonment (§ 13(1)). A person who “knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person” may be punished with up to two years imprisonment (§ 14(1)).
NSW, much like the rest of Australia, suffers from high incidents of domestic violence. Across Australia, one in three women have experienced physical and/or sexual violence perpetrated by someone known to them, one in five women have been stalked during their lifetime, and on average one woman is killed every week by a current or former partner. Aboriginal women and girls are 35 times more likely than the wider female population to be hospitalised due to family violence. In 2016, the NSW Minister for the Prevention of Domestic Violence and Sexual Assault, launched the ‘NSW Domestic Family Violence Blueprint for Reform 2016-2021: Safer Lives for Women, Men and Children’ setting out actions to reform the domestic violence system in NSW over a five-year period (the blueprint is the first of its kind in Australia). The NSW Government has allocated AUD 350 million in the 2017/18 budget over a four-year period to fund the effort. (http://www.bocsar.nsw.gov.au/Pages/bocsar_pages/Domestic-Violence.aspx; https://www.whiteribbon.org.au/understand-domestic-violence/facts-violence-women/domestic-violence-statistics/; http://www.domesticviolence.nsw.gov.au/home)
Section 22A, Part 2A of the Act provides that a person sexually harasses another person if “the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.” Part 2A sets out various prohibitions against the harassment of employees, commission agents, contract workers and partners, and the circumstances in which the harassment may occur. On June 20, 2018, the Australian Human Rights Commission announced that it would undertake a national inquiry into sexual harassment in Australian workplaces at a federal level and make recommendations to address the issue.
Division 10 of the Act prohibits and defines sexual violence against adults and children. A person consents to sexual intercourse if the person freely and voluntarily agrees (§ 61HE(2)). As provided in section 61HE(3), a perpetrator is deemed to know that the other person does not consent if they have actual knowledge, are reckless as to consent, or had no reasonable belief that the other person consented. In determining consent, the trier of fact must consider all of the circumstances, including any steps taken by the person to ascertain whether the other person consents, but not including any self-induced intoxication of the person. There can be no consent if the person is a minor, unconscious or asleep, cognitively incapacitated, under duress, or unlawfully detained.
Domestic Case Law
R v. Wong New South Wales District Court (2013)
The accused was charged with conducting a business involving sexual servitude, in violation of section 260.6(2) of the Criminal Code Act 1995. She pled not guilty and proceeded to trial, facing charges that she had recruited four women from Malaysia to work at a brothel. The victims entered Australia on student visas, were forced to repay AUD 5,000 each, and were not permitted to leave the brothel until they repaid that amount. The accused also threatened the women with physical violence and deportation. The Court found the work that the women were forced to perform, including being paraded in front of potential customers wearing numbers for identification, was demeaning and dehumanizing. The Court found the accused guilty on all seven counts and sentenced her to six years’ imprisonment.
R v. Netthip New South Wales District Court (2010)
The accused pled guilty to one count of conducting a business involving sexual servitude, in contravention of section 270.6(2) of the Criminal Code Act 1995. Between August 2005 and March 2008, the accused recruited and facilitated the placement of 11 Thai women in brothels in various Australian cities. Each of the women (except for those who worked for one particular brothel) transferred a portion of their net earnings to the accused to repay the debts they were told they owed. She was sentenced to two years and three months imprisonment.
Sieders v. R; Somsri v. R New South Wales Court of Criminal Appeal (2008)
This was an appeal from convictions for violations of section 270.6(2) of the Criminal Code Act 1995, which generally prohibits forced labor. The two appellants, a married couple, ran various brothels in Sydney where five Thai women were sex workers. Four of the Thai women, while still in Thailand, signed contracts agreeing to provide sexual services in Australia. The contracts obligated each of them to repay approximately AUD 45,000 before they could keep any of their earnings. Four of the five women paid the AUD 45,000, and then continued working at the brothels. There was no dispute that the women worked in the brothels; the dispute was whether they had been subjected to sexual servitude. Following a trial, the defendants were convicted of conducting a business involving sexual servitude and sentenced to five years’ and four years’ imprisonment, respectively. Both appealed their convictions on the basis that the verdicts were unreasonable and unsupported by the evidence, that the trial judge erroneously instructed the jury on the fault element of the offense, and that their sentences were excessive. The Court of Criminal Appeal affirmed the convictions.
R v. McIvor and Tanuchit New South Wales District Court (2010)
The case concerns the defendants, a married couple, who kept five Thai women as slaves in a secret room in the basement of their licensed brothel in Sydney. The defendants purchased the Thai women through contacts in Thailand (for between AUD 12,500 – 15,000). Upon arriving in Australia, four of the women were informed that they owed between AUD 35,000 and 45,000 that they had to repay by working in the brothel (one of the victims was told about the debt in Thailand). The defendants confiscated the women’s passports and kept them in locked confinement either at the brothel or at their residence. The women worked extremely long hours, seven days a week. The defendants were each found guilty of five counts of intentionally possessing a slave and five counts of intentionally exercising ownership authority over a slave, in violation of section 270.3(1)(a) of the Criminal Code Act 1995. The court sentenced Mr. McIvor to 12 years’ imprisonment and Ms. Tanuchit to 11 years’ imprisonment.
R v. Lazarus Supreme Court of New South Wales (Court of Criminal Appeal) (2017)
In his initial trial, a jury found the accused guilty of the crime of sexual intercourse without consent. He appealed and was granted a retrial, which was a bench trial (no jury). The focus of the retrial was whether the complainant had consented and, if not, whether the accused knew. The complainant (then 18) and the accused (then 21) met at a Sydney nightclub. Soon after meeting, and after having danced and kissed on the dance floor, the accused anally penetrated the complainant in an alleyway behind the club. During the retrial, the court did not believe that the complainant “by her actions, herself meant to consent to sexual intercourse and in her own mind was not consenting to sexual intercourse,” but the issue was “[w]hether or not the accused knew that she was not consenting.” The court held that the accused did not know that the complainant had not consented. In reaching its decision, the court noted that the complainant did “not say ‘stop’ or ‘no.’ She did not take any physical action to move away from the intercourse or attempted intercourse.” The court accepted that the “series of circumstances on the early morning of 12 May 2013 amounts to reasonable grounds, in the circumstances for the accused to have formed the belief […] that in fact the complainant was consenting to what was occurring even though it was quick, unromantic, they had both been drinking and in the case of both of them may not occurred if each had been sober.” The court acquitted the accused on the basis that the “the Crown ha[d] [not] made out the third element, namely to prove that the accused had no reasonable grounds for believing that the complainant was not consenting…” The court’s judgment of acquittal was upheld on appeal. This case is important because it led to the NSW Attorney General requesting that the NSW Law Reform Commission review section 61HA of the Crimes Act 1900 (NSW) in order to determine if the law should be amended to better protect victims. District Court re-trail decision available here: http://static1.1.sqspcdn.com/static/f/556710/27630007/1500427752463/Tupman_Lazarus.pdf?token=mHtsYtApoYyV2KbtbIvqb0GxWmc%3D