Proposed changes to consent laws in Queensland

New legislation introduced to parliament aims to implement an affirmative model of consent in Queensland. Affirmative consent requires each person engaging in a sexual activity to take steps to confirm the other person consents to the activity. Under this model, consent cannot be assumed. Current laws in Queensland do not require affirmative consent.

This could change if the proposed legislation is implemented. Under the proposed legislation, if a person does not say or do anything to communicate consent, consent is not given. The legislation expands the non-exhaustive circumstances in which there is no consent, including where:

• the person is so affected by alcohol or a drug as to be incapable of consenting or withdrawing consent

• the person is unconscious or asleep

• the person participates in the act because the person is overborne by the abuse of a relationship of authority, trust or dependence

• the person lies about having a serious disease, and subsequently transmits the serious disease to the other person

The legislation also targets the act of ‘stealthing’, which is when a condom is removed or tampered with during sex without the other person’s knowledge or consent. Under the legislation, consent is not given where a person engages in a sexual activity with another person on the basis that a condom is used, and the other person does any of the following things before or during sex:

• does not use a condom

• tampers with the condom

• removes the condom

• becomes aware that the condom is no longer effective but continues with the act

If implemented, the legislation will significantly broaden the scope for the prosecution of sexual offences in Queensland.

What is coercive control and is it illegal in Queensland?

Coercive control is a pattern of abusive behaviour aimed at establishing control over another person. It can include emotional, mental and financial abuse, isolation, intimidation, sexual coercion and cyberstalking.

Currently, coercive control is not a standalone criminal offence in Queensland.

However, this is set to change following the introduction of The Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023 to parliament by the Palaszczuk government.

This legislation creates a new separate criminal offence of coercive control. Under the proposed legislation, the following elements must be proven to establish the offence of coercive control:

a)     the person is in a domestic relationship with another person (the other person); and

b)     the person engages in a course of conduct against the other person that consists of domestic violence occurring on more than 1 occasion; and

c)     the person intends the course of conduct to coerce or control the other person; and

d)     the course of conduct would, in all the circumstances, be reasonably likely to cause the other person harm.

The offence will carry a maximum penalty of 14 years imprisonment.

It is expected the legislation will take effect in 2025. It follows recommendations of the Women's Safety and Justice Taskforce.

Debt Bondage and Slavery offences – what will the prosecutor need to prove?

The Criminal Code Act 1955 defines slavery as the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person. Under the Act, slavery offences mean:

1. A person who, whether within or outside Australia, intentionally:

(aa) Reduces a person to slavery; or

a.     Possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or

b.     Engages in slave trading; or

c.     Enters into any commercial transaction involving a slave; or

d.     Exercises control or direction over, or provides finance for:

(i)                  Any act of slave trading; or

(ii)                 Any commercial transaction involving a slave.

The prosecutor will need to prove the accused has committed at least one of the above. The maximum penalty for slavery is imprisonment for 25 years.

Offence of Debt Bondage

A person commits an offence of debt bondage if:

1. A person engages in conduct that causes another person to enter into debt bondage; and

2. The person intends to cause the other person to enter into debt bondage.

The prosecutor will need to prove two things; causation and intent. It must be proven that the conduct is the direct cause of another person entering into debt bondage, and that person intended for this to occur. The maximum penalty is 4 years in prison.

For a prosecutor to prove an offence of servitude or forced labour, they must prove that a reasonable person in the position of the victim would not consider themselves to be free to cease providing the labour or services; or to leave the place where they are providing the labour or services. Or, for servitude, are significantly deprived of personal freedom in aspects of life other than the provision of the labour or services. It also must be proven that the person has engaged in conduct that causes another person to enter into or remain in servitude or forced labour. An aggravated offence of servitude may result in imprisonment for 20 years; or 15 years in any other case. An aggravated offence of forced labour may result in imprisonment for 12 years; or 9 years in any other case.

For a prosecutor to prove an offence of forced marriage, they must prove the victim has entered into the marriage without freely and fully consenting because of the use of coercion, threat or deception; or they were incapable of understanding the nature and effect of the marriage ceremony. They must also prove that the first person has engaged in conduct that causes another person to enter into a forced marriage as the victim of the marriage. An aggravated offence of forced marriage may result in imprisonment for 9 years; or 7 years in any other case.

The Criminal Code Act 1955 states a slavery-like offence will become an aggravated offence if the following applies:

1. A slavery-like offence committed by a person (the offender) against another person (the victim) is an aggravated offence if any of the following applies:

a.     The victim is under 18;

b.     The offender, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;

c.     The offender, in committing the offence:

i)                    Engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and

ii)                   Is reckless as to that danger.

Our lawyers are very experienced in Commonwealth offences and the defence of slavery-type offences. Our highly experienced defence lawyers are available to discuss your case. Contact us today for a no-obligation discussion.

Navigating Human Trafficking Charges in Australia - 5 Essential Insights

Introduction:

Human trafficking is a complex criminal offence with serious implications. In this article, we will discuss five pivotal points surrounding the charge of human trafficking in Queensland.

Diverse Forms of Exploitation:

The Criminal Code Act 1995 identifies a range of exploitative practices, such as slavery, servitude, forced labor, forced marriage, and debt bondage.

Defining Human Trafficking:

Human trafficking involves the recruitment, transportation, transfer, harboring, or receipt of individuals through methods like coercion, threats, deception, or other means, all aimed at exploitation. Notably, physical restraint is note a prerequisite for establishing criminal liability. 

Entry and Exit Offences:

The nuances of human trafficking charges further extend to entry and exit offences. Entry offences include facilitating or organising the entry of an individual into Australia using coercion, threats, or deception to obtain compliance. Similarly, exit offences involve organising or facilitating an individual's exit from Australia under similar circumstances.

Proving Criminal Liability: 

The prosecution need not demonstrate physical restraint to establish guilt. Instead, the focus lies on demonstrating the use of coercion, threats, or deception to obtain compliance.

 Legal Consequences and Accountability:

If convicted of Human Trafficking, the penalties can be serious including actual terms of imprisonment and a conviction being recorded. 

Overall Human Trafficking is a Commonwealth offence, as opposed to a Queensland offence. The advice and defence of a Commonwealth offence can be vastly difference from a State offence. Therefore, it is critical to engage a lawyer well experienced in defending Commonwealth crime. Our lawyers have successfully defended many Commonwealth criminal offences. Contact us to speak to our experienced Commonwealth criminal lawyers today.

What is the difference between murder and manslaughter?

There is a fundamental distinction between murder and manslaughter, both of which are serious criminal offences. In Queensland, these charges carry significantly different consequences. Understanding the elements that constitute each offence and the corresponding penalties is crucial to comprehend the gravity of these crimes and the justice system's approach to dealing with them.

Murder

What is Murder?

Murder is the most severe form of unlawful homicide. It occurs when one person intentionally and unlawfully causes the death of another with the intention to kill or inflict grievous bodily harm. For an act to be considered murder in Queensland, the following elements must be proven beyond a reasonable doubt:

1. The person is dead

2. The defendant caused the person’s death

3. The defendant did so unlawfully. That is, any defences are excluded beyond a reasonable doubt

4. At the time of the act or omission which caused the death, the defendant intended to kill or do grievous bodily harm

Penalties for Murder in Queensland

A person convicted of murder is liable to life imprisonment. This period cannot be reduced by the Court. Life imprisonment is generally 20 years before a person becomes eligible for parole.

The minimum term of 20 years can increase in certain circumstances such as if the victim is a police officer performing their duty at the time of being killed, or the person is convicted for more than one murder.

Since 2017, the Qld parliament introduced a new ‘no body, no parole’ law, which means if a person is convicted of a homicid offence, they will not be granted parole if the victim’s body or remains have not been located, unless the Parole Board is satisfied that the defendant has cooperated satisfactorily to identify the victim’s location.  

Manslaughter

What is manslaughter?

Manslaughter is when one person unlawfully causes the death of another, but without the specific intent to kill or cause grievous bodily harm. Instead, manslaughter often involves reckless or negligent behavior leading to an unintended death.

What is the penalty for manslaughter in Qld?

Manslaughter carries a maximum penalty of life imprisonment but unlike murder, the penalty is not mandatory and can be reduced by the court to reflect the facts of the case.

Overall, to distinguish between murder and manslaughter in court, the prosecution must demonstrate the presence or absence of specific intent. If there is clear evidence of an intention to kill or cause grievous bodily harm, the charge is likely to be murder. However, if the defendant's actions were reckless or negligent, manslaughter is the more likely charge.

What is the Unlawful Wounding and Grievous Bodily Harm in Queensland?

Introduction

In Queensland, Australia, the law defines specific offences related to causing harm to another person.

Two serious offences in this category are ‘Unlawful Wounding’" and ‘Grievous Bodily Harm’ (GBH). While both offences involve causing harm to another individual, they have distinct legal definitions, penalties, and implications. This article aims to shed light on the differences between Unlawful Wounding and Grievous Bodily Harm in the Queensland legal system.

Unlawful Wounding:

Unlawful Wounding means that the true skin must be broken and penetrated, and not merely the cuticle or outer skin. As such, the medical evidence will be important. For the wounding to be unlawful, this means that it was not authorised, justified, or excused by law.

The maximum penalty for unlawful wounding is 7 years imprisonment. The court will take into account the whole of the circumstances when deciding the penalty. If the offence was committed in a public place while the defendant was affected by alcohol, then the penalty may be higher.

Grievous Bodily Harm:

GBH is considered a more serious offence than Unlawful Wounding, and is defined as:

1. the loss of a distinct part or an organ of the body; or

2. serious disfigurement;

3. any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.

The maximum penalty is 14 years imprisonment. Factors the court will consider include the nature of the injury, the victim’s recovery, any criminal history, and the age and background of the defendant.

Both charges can lead to serious personal, social, and economic consequences for a defendant. It is important to seek advice early from an experienced criminal lawyer if you are charged with these offences.

What is unlawful Carnal Knowledge in Queensland?

Introduction

Unlawful Carnal Knowledge, commonly referred to as sexual intercourse with a minor, is a serious criminal offence in Queensland.

Definition of Unlawful Carnal Knowledge in Queensland

Unlawful Carnal Knowledge in Queensland refers to engaging in sexual intercourse with a person under the age of consent. The age of consent in Queensland is generally 16 years old, which means that engaging in sexual activity with anyone below this age is considered illegal. Consent cannot be given by individuals who are underage, as they are deemed incapable of making informed decisions about such matters.

Penalties for Unlawful Carnal Knowledge in Queensland

The penalties for committing the offense of Unlawful Carnal Knowledge can be serious. The severity of the penalties depends on various factors, including the age difference between the parties involved and the circumstances surrounding the incident.

Aggravating features of the offence include if the child is under 12 years, if the child is a lineal descendant of the defendant, the defendant is the child’s guardian or has them under care, the child has an impairment of the mind.

If an adult is found guilty of engaging in sexual intercourse with a minor under the age of 16, a person may face the following penalties:

1.     A term of imprisonment which requires time to be served in custody, or with immediate release on parole or a suspended term of imprisonment. This depends on each case.

2.     If convicted, a person is registered on the sex offender register known as the 'Queensland Child Protection Offender Register' (QCPOR). It is a confidential database maintained by the Queensland Police Service and intended to help law enforcement agencies monitor and manage registered sex offenders in the community. This is not a public register.

3.     A conviction is likely to be recorded.

Cases of Unlawful Carnal Knowledge in Queensland commence in the Magistrates Court and transferred to the District Court for sentence (guilty) or trial (not guilty).

Negotiations may also be appropriate depending on the evidence and so it is important to speak to an experienced lawyer as to your options.