By -

Despite no convictions since it became an offence in 2013, there has been a significant increase in reported forced child marriages in Australia over the last 10 years. NSW leads at over 30 per cent of reports, followed by Victoria, WA and SA.

Forced marriage falls under the umbrella of modern slavery, but it often affects young girls and teenagers and has a lifelong impact on their lives. Importantly, it is not specific to cultures, ethnicities, religions nor nations and it is rife, worldwide. Since it can involve selling girls for money, or forcing girls on flights to their older husbands, it can be complicated for authorities to identify, and families can go to great lengths to try to keep these operations quiet. However, as our experts explain, it is a complicated situation in which families often genuinely believe they are acting in the best interests of their child or community member, and victims are reluctant to criminalise their families or community members.

Pursuant to an Australian government discussion paper in 2010 that considered how the law could respond to forced and servile marriage within Australia, or to cases where Australian citizens and residents face forced marriage abroad, the specific criminalisation of forced marriage was introduced in 2013.

Since 2019, Sandeep Dhillon has been the Human Rights Legal Practice Manager at Anti-Slavery Australia, and since 2021, Jacqueline Nelson has been a Research Fellow at Anti-Slavery Australia.

Dhillon explains, “Our organisation does a whole range of work, including research and awareness raising, which includes ‘Speak Now’, a forced marriage education and prevention project. We also run a legal practice, which is what I manage, and as a part of that legal practice, we provide advice and assistance to victim-survivors of all forms of modern slavery, including forced marriage. We also have a specific forced marriage initiative, which is called ‘My Blue Sky’ that was established in 2013 after the criminalisation of forced marriage, and in response to growing requests for assistance and advice in relation to forced marriage.”

Dhillon explains that through ‘My Blue Sky’, “we are able to provide advice, assistance and ongoing representation to people that are at risk of, experiencing, or leaving forced marriages. In terms of our approach, because we’re working with people who have often had their autonomy taken from them, it’s really important to take a strengths-based approach, and I really see my role as providing people with all of the advice and the information that they need to be able to make an informed decision, and to give me instructions in relation to what they would like to do next.”

All the advice and assistance provided by Dhillon and her team is completely free and confidential. She also that they are flexible in the way they respond to and provide assistance to enable victims or their supporters to feel secure in seeking information and advice.

“We communicate through emails, text and an online chat box on the website to enable people to talk to us in real time and get advice from a lawyer, while they can remain completely anonymous.”

Victim-survivors do not fit a narrow profile

Dhillon says their service sees people “from all ages from very diverse backgrounds.”

“We have clients from over 25 different ethnicities, cultures, religions, and all age ranges. So, while we do often see people under 18 affected, forced marriage happens when a person doesn’t freely and fully consent and that can happen at any age. A lot of our clients are around 16 [years old] to early 20s. Just because someone is over 18 doesn’t mean that they are immune to forced marriage. In Australia, if someone is under the age of 16 it’s presumed that they are not capable of consenting, and it’s presumed to be a forced marriage unless there is permission from a court.

“Because it is something that often happens behind closed doors, the statistics aren’t really reflective of the actual number of people that are experiencing forced marriage. The Australian Institute of Criminology estimated that about one in four [forced marriages] were actually identified, so the problem is probably larger than what the statistics show.”

Nelson says statistics from the Australian Federal Police indicate about half the people they hear about are young women aged between 15 and 19.

“There’s a growing awareness both at political levels and within frontline workers. It’s difficult to pursue criminal outcomes, since a lot of people don’t want to go down that pathway, and we want to look at ways to intervene before it comes to that point,” she says.

Dhillon says, “Justice looks different to everyone, and to people at risk of, or experiencing forced marriage, justice is not convicting someone they care about. Justice might be getting a divorce, accessing compensation, and making a decision about who they want to marry. More broadly, around the criminal justice framework, it can be intimidating to engage with authorities because the victim is worrying about their family, or their community; people they care about getting in trouble.”

She adds that obtaining a divorce is pretty straightforward but “the biggest challenge for us can be obtaining cultural divorces.”

“For a lot of people, once they have gone through the civil divorce process, which is pretty straightforward, they might also also want a cultural divorce or a customary divorce. Plus, for a lot of women, they might have left a forced marriage and having to pay the application fee is really difficult,” Dhillon says.

In Australia, the full application fee for divorce is $1060, and the reduced fee is $350.

International complications

Dhillon says, “It’s very difficult to act once someone is overseas, which is why prevention is so important.”

“A lot of the time, we refer matters to the AFP, but only where consent is given. We also speak to DFAT because often people’s identity documents are taken, so they need to be provided with emergency passports. It can also be difficult to cooperate with authorities in some countries and the victim is usually confined and heavily monitored. We will sometimes seek NGOs on the ground in that country to partner with,” she says.

Even once emergency passports are provided, and the victim is able to leave, there’s a further barrier.

“It’s difficult to find funding,” says Dhillon. “So we do a lot advocacy around funding – a lot of the time we receive grants but we have to be really creative about where we find funds for flights allowing clients to return.”

Dhillon says that for lawyers with an interest in working in this area, “empathy is the biggest quality required. You need to be able to work with people in a really trauma-informed way. It comes down to remembering that although clients have had these experiences, they’re not defined by that. it’s just one part of their stories, they’re multifaceted people.”

Nelson adds, “Hearing people’s stories, and how they rebuild, it’s amazing.”

The legal framework

Specific to the forced marriage of minors, under the Commonwealth Marriage Act 1961 it is an offence for a person to go through a form or ceremony of marriage with a person who is not of marriageable age. The penalty for this offence is up to five years’ imprisonment. Under the Marriage Act it is also an offence for a person to solemnise, or purport to solemnise, a marriage if the person has reason to believe that one or both of the parties are not of marriageable age. Penalties for this offence include up to six months.

Under the Commonwealth Criminal Code Act 1995 (Cth), any person with a role in arranging or enabling the forced marriage offences is held liable for their actions – this includes family members, friends, wedding planners or marriage celebrants.

While victims are often minors, the offences apply regardless of the age, gender or sexual orientation of the victim. The offences also criminalise being a party to a forced marriage, including the spouse in cases where the spouse is a willing participant in the marriage and understands the marriage to be an arrangement wherein one party is not given a choice.

Under the current provisions of the Marriage Act 1961 (Cth), a marriage is void if it was obtained by duress or fraud or if one party did not have the mental capacity to truly consent to the marriage. Nonetheless, it falls short of addressing forced marriage, duress or coercion and within the Act there is no specific offence of forcing a person to marry another.

In May 2010, a 17-year-old Sydney girl called the Australian Federal Police from Lebanon, where she was taken by family for the purposes of a forced marriage. After obtaining Legal Aid representation, the Federal Magistrates Court issued an order under s 68B of the Family Law Act 1975 (Cth) that stopped her family from taking her outside of Australia. Justice Nahum Mushin found that she was not of marriageable age within the terms of the Marriage Act 1961 (Cth) and made a parenting order restraining the girl’s parents from removing her from Australia and placing her on the Airport Watch List.

In May 2012, Australia’s anti-trafficking laws were overhauled by the Australian government to align them with international standards. The Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012 (Cth) was introduced, and on 27 February 2013 the Bill was passed by the Australian Parliament.

The updated Act included stand-alone offences of forced marriage, servitude and forced labour, and defined ‘coercion’ in the context of trafficking-related crimes. Further, it introduced a new offence applicable to a person harbouring or receiving a victim of trafficking or slavery, and expanded the definition of exploitation to include a ‘condition similar to slavery’, including, but not limited to, servitude, forced labour, forced marriage, and debt bondage.

Forced marriage: a form of modern slavery

Dr James Cockayne, the NSW Anti-slavery Commissioner tells LSJ, “In Australia, forced marriage is categorised under the umbrella of offences recognised as modern slavery. While there are estimates of up to 41,000 cases of modern slavery across the country, just 340 of this caseload was reported to police last year, resulting in a mere handful of successful modern slavery prosecutions. These statistics highlight that across the board there is greater effort and resources required to ensure survivors of modern slavery, including forced marriage, are able to safely come forward and receive the support they need to achieve the remedy they deserve.”

He attributes the increase in forced marriage reports to a number of factors.

“The resumption of movement post-COVID will likely have contributed to this increase. Though the commitment of the NSW Government to supporting efforts to improve community understanding through forced marriage education and prevention programs, and the expertise of community organisations being increasingly supported to do this work, have certainly made an impact in increasing community awareness and consequently reporting.”

Ultimately, Cockayne says, “It is crucial that people with lived experience of forced marriage need to be included in the design and delivery of targeted forced marriage education, prevention and prosecution endeavours. The people who have lived through the forced marriage system are experts in its strengths and its failings and including them will strengthen the systemic approach and be important in their path to healing.”

A recent submission he made to a NSW Government review into improving legal protections for victim-survivors of forced marriage outlined important and systemic changes that need to be made to both protect and prevent forced marriages occurring.