Forced marriage in Australia: Looking beyond the law

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At the moment, the Australian Government is examining modern slavery and developing a comprehensive response to how it presents in Australia. In today’s analysis, Emeritus Professor Gillian Triggs and Laura Vidal of Good Shepherd Australia New Zealand explore the opportunities this presents for creating a more effective response to instances of forced and child marriage.  This article is an edited extract of a keynote presentation given at a ‘Good Conversations’ event hosted by Good Shepherd Australia New Zealand at Melbourne Town Hall on 7 June 2018.

Forced marriage is not a new and emerging practice; Australia has been grappling with this issue for more than two decades. The earliest reported case of forced marriage was in 1994 involving Joelle Mazoud, who at age 15 was taken out of school and overseas to marry a man she had never met and was left abandoned in a loveless and abusive marriage.

Australia criminalized forced marriage in the Slavery, Slavery like Conditions and People Trafficking Act 2013 that amended the Commonwealth Criminal Code (1995). The criminal law is just a start. There have been no successful prosecutions since the adoption of a criminal law approach, illustrating the great gulf between the law on the statute books and implementation, a fundamental problem for the protection of all human rights, particularly in Australia.

Since 2013, there have, however, been multiple legislative, policy and program initiatives to address prevention and intervention for individuals at risk by raising awareness of forced marriage and promoting reporting.

Hindering efforts to end the practice of forced marriage is a lack of accurate data. The true extent remains unknown as there is little available comprehensive data and – because it takes place within the context of the family unit – is likely to be underreported. The National Children’s Youth Law Centre reported in 2013-2015 that there were 250 cases of forced marriage and to date, the Australian Federal Police have received over 174 referrals for assistance.

The law and criminalization

In responding to forced marriage, the law is usually the first step. It is a vital tool to respond to the denial of all fundamental freedoms. Forced marriage is a breach of some of the most basic human rights, long agreed in treaties to which Australia is party — the right to personal liberty, to form a family, to non-discriminatory access to education, work and legal justice, not to mention the right to freely and fully consent to marriage.

The reality is that forcing a person to marry is often a reflection of gender inequality and relative powerlessness. We need to recognize the strong interrelation of gender-based and domestic violence with forced marriage.  We also need a clear child protection response to ensure holistic and comprehensive responses to the issue.

Australia has, sensibly, chosen to combine the potential for criminal law prosecutions under the Commonwealth Criminal Code (1995) with civil law procedures such as Airport Watch List Orders and court ordered intervention including maintaining school attendance and mediation. One unhelpful aspect of the criminal law approach, however, is that access to government funded support is dependent upon a referral from the Australian Federal Police. Individuals at risk of forced marriage may fail to report risk and harm because they fear that to work directly with a law enforcement agency may expose members of their family and parents – often the perpetrators of the crime – to criminal prosecution.

A holistic, preventative response is the best way to reduce risk of forced marriage within a human rights framework that considers family violence and child protection systems.  Photo credit Girls Not Brides . 

A holistic, preventative response is the best way to reduce risk of forced marriage within a human rights framework that considers family violence and child protection systems. Photo credit Girls Not Brides

Beyond the law

Legal tools and perspectives, while a necessary foundation for responding to forced marriage, are a long way from addressing the cultural context, the power imbalances, social complexities and gender inequality that underpin the practice. We need preventative action at the beginning of the problem, not only at the end, by working closely with families to make informed and alternative choices. While the law sets benchmarks, it is often too limited and too late to prevent the practice and to change the attitudes and behaviours of those facilitating forced marriage.

In addition to the legislative amendments in the Commonwealth Criminal Code (1995) in 2013, Australia has recently introduced a Modern Slavery Bill which proposes to adopt the Commonwealth Criminal Code (1995) definition of slavery—thus including forced marriage. In doing so, it attempts to require businesses to report forced marriage in their supply chain, which while entirely appropriate to forced labour and other forms of slavery and servitude, is entirely inappropriate to situations of forced marriage. For forced marriage, the drafting and debate of the Modern Slavery Bill is an opportunity for Australia to think more deeply about the underlying and complex familial aspects of forced marriage and to provide a preventative focus.

Realistically, we need move beyond enacting further legislation by working with medical and health services, community groups and schools, who are often in an ideal position to identify and support potential cases of forced marriage.

Some key questions in Australia’s response to forced marriage need to be asked:

1.       Is criminalisation and referral through law enforcement the most beneficial and appropriate way to identify and support those experiencing or at risk of forced marriage? Criminalisation can have destructive outcomes for most parties. We need to balance the desired outcomes of deterrence and crime prevention with ensuring safety for those at risk and empowering them to assert their rights.

2.       Is the binary of victim-perpetrator, which a criminal justice approach lends itself to, an accurate way to frame our response? How do we define and identify consent and coercion, particularly in the context of a practice that occurs within the familial and community context? Many victim-survivors say they consent because they are scared of the repercussions if they don’t. Given the complexity of the issue, a simplistic dichotomy is clearly inadequate.

We need a preventative and holistic approach that stretches beyond the law. The law is important as a foundation or benchmark, but it will not, and arguably cannot, provide answers to complex socio-cultural problems.

Responding within a family violence and child protection framework

The phenomenon of forced marriage crosses into multiple service sectors. It is rare for those facing forced marriage to present with only one problem for which they require assistance. We need to look beyond the limited view of Australia’s anti-slavery provisions and identify how family violence and child protection frameworks lend themselves to practical, victim-centered support options.

Moreover, we need to understand the causes of forced marriage and take an early intervention and preventative approach, including:

  • Engage in good faith with the community  to change attitudes and behaviour
    • De-couple government-funded victim support from the requirement of reporting to the Australian Federal Police
  • Ensure early victim-led intervention to support and, where possible, family preservation
  • Adopt interdisciplinary and coordinated approaches to ensure victim-survivors are provided with safe, confidential access to services
  • Provide education and training

Ultimately the criminal law is too little, too late. We need to focus on prevention to protect the rights and freedoms of those facing forced marriage.

This post is part of the Women's Policy Action Tank initiative to analyse government policy using a gendered lens. View our other policy analysis pieces here.