Criminal offences

Division 270 of the Criminal Code (Cth) contains offences that are used to criminalise specific types of exploitation associated with trafficking in persons.  Until 2013, Division 270 contained three separate offences, namely slavery (s 270.3), sexual servitude (former s 270.6) and deceptive recruitment for sexual services (former s 270.7).  TheCrimes Legislation (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth), introduced a servitude offence (s 270.5, replacing the sexual servitude offence in s 270.6), a offence for deceptive recruitment (s 270.7), and offences for forced labour and forced marriage (ss 270.6A, 270.7B).

Slavery

Central to the application of the slavery offences under s 270.3 is the definition of slavery in s 270.1 of theCriminal Code (Cth):

For the purpose of this Division, slavery is 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.

The interpretation of this definition, which is based on the Slavery Convention of 1926 and the Supplementary Slavery Convention of 1956, is at the heart of the High Court case involving convicted Melbourne brothel owner Ms Wei Tang: R v Wei Tang (2008) 237 CLR 1.

Until March 2013, s 270.3 of the Criminal Code (Cth) set out six offences relating to slavery. In 2013, a seventh slavery offence was added.  Section 270.3(1) involves instances in which the accused acted intentionally,[7]including:

• possessing a slave or exercise over a slave any of the powers attaching to the right of ownership, s 270.3(1)(a);
• engaging in slave trading (s 270.3(1)(b)). The term ‘slave trading’ includes (a) the capture, transport or disposal of a person with the intention of reducing the person to slavery; or (b) the purchase or sale of a slave, s 270.3(3);
• entering into a commercial transaction involving a slave, (s 270.3(1)(c); and
• exercising control or direction over, or provide finance for, a commercial transaction involving a slave or any act of slave trading, s 270.3(1)(d).

The 2013 amendments inserted paragraph 270.3(1)(aa) containing the phrase, ‘reduces a person to slavery’.  This created a new slavery offence, clarifying that ‘an intentional act which results in another person being reduced to slavery constitutes an offence’. 

Section 270.3(2) extends the application of two offences to situations in which the accused acted recklessly.[8] The maximum term of imprisonment for the slavery offences is 25 years imprisonment where the offence was committed intentionally, and 17 years where the offender acted recklessly.

Two provisions were added to s 270 by the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Act 2014 (Cth). These provisions clarify important procedural issues surrounding slavery offences. Section 270.3A makes explicit the fact that slavery offences have universal jurisdiction, allowing Australian agencies to investigate and prosecute even where the offence was not committed wholly within Australian territory.  This section reflects the intention of drafters represented in the Explanatory Memorandum to theCriminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth), while also promoting the rights of victims to an effective remedy.[9]

Section 270.3B clarifies that prosecutions for slavery offences, in which the alleged conduct takes place wholly outside of Australian territory, may only proceed with the written consent of the Attorney-General.  However, an absence of permission to prosecute does not preclude the alleged offender in these circumstances being arrested, charged and remanded in custody or on bail.  Sections 270.3A and 270.3B both apply only in relation to offences committed on or after 6 March 2015.

Servitude and sexual servitude

Sections 270.4 and 270.6 of the Criminal Code (Cth), which were repealed by the Crimes Legislation (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth), were concerned with sexual servitude.  Section 270.4(1) defined the term ‘sexual servitude’ and s 270.6 set out two separate offences relating to sexual servitude. Under s 270.6(1) it was an offence to intentionally or recklessly cause another person to enter into or remain in sexual servitude.  Under former s 270.6(2) it was an offence to knowingly or recklessly conduct a business that involved sexual servitude.

In 2013, ss 270.4 and 270.6 were substituted with a new definition of servitude and two new offences relating to servitude, thus expanding the application of Division 270 to other forms of servitude and other slavery-like conditions.  Sectio 270.4 defines the term ‘servitude’ and two new servitude offences relating to ‘causing a person to enter into or remain in servitude’ and ‘conducting a business involving servitude’, are set out in s 270.5.

Forced labour

The 2013 amendments introduced ss 270.6–270.8 into the Criminal Code (Cth) to criminalise forced labour and deceptive recruitment for labour or services.  The definition of forced labour in s 270.6 forms the basis of two offences relating to ‘causing a person to enter into or remain in forced labour’ and ‘conducting a business involving labour’, set out in s 270.6A.  Section 270.8 provides aggravations for cases of forced labour involving minors, cruel, inhuman or degrading treatment of the victim, and for cases that give rise to a danger of death or serious harm to the victim or another person.  Section 270.7 of the Criminal Code (Cth) contains an offence entitled ‘deceptive recruiting for labour or services’, replacing the former ‘deceptive recruiting for sexual services’ offence.

Forced marriage

The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) added ss 270.7A–270.7B into the Criminal Code (Cth) to define and criminalise forced marriages.  Section 270.7A(1) defines the term ‘forced marriage’ as a marriage involving ‘the use of coercion, threat or deception’, causing ‘one party to the marriage (the victim) to enter into the marriage without freely and fully consenting’.

Two offences relating to forced marriages are set out in s 270.7B: causing a person to enter into a forced marriage (s 270.7B(1)), and being a party to a forced marriage (without being the victim, s 270.7B(2)).  Section 270.8 provides aggravations for cases of forced marriage that involve minors, cruel, inhuman or degrading treatment of the victim, and for cases that give rise to a danger of death or serious harm to the victim or another person.

Until 2013, offences relating to trafficking in persons in Division 271 of the Criminal Code (Cth) were separated between Subdivision B — Offences relating to trafficking in persons (ss 271.2–271.7) and Subdivision C — Offences relating to debt bondage (ss 271.8, 271.9).  The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) inserted Subdivision BA — Organ trafficking (ss 271.7A–271.7E) and Subdivision BB – Harbouring a victim (ss 271.7F–271.7G).

Offences under ss 271–271.6 Criminal Code (Qld)

Subdivision B, entitled ‘offences relating to trafficking in persons’, includes six different provisions:

• s 271.2 Offence of trafficking in persons;
• s 271.3 Aggravated offence of trafficking in persons;
• s 271.4 Offence of trafficking in children;
• s 271.5 Offence of domestic trafficking in persons;
• s 271.6 Aggravated offence of trafficking in persons; and
• s 271.7 Offence of domestic trafficking in children.

These offences can be separated between those that concern transnational trafficking (ss 271.2, 271.3) and those that concern domestic trafficking (ss 271.5, 271.6). Separate offences also exist for transnational and domestic trafficking in children (s 271.4 and s 271.6 respectively).  For the transnational and domestic offences there are four different scenarios that, if proved, amount to the commission of a trafficking in persons offence:

• The first scenario is relevant when there has been a use of coercion, threat or deception to gain compliance: ss 271.2(1), 271.2(1A), 271.5(1).
• The second scenario deals with recklessness as to whether the other person will be exploited: ss 271.2(1B), 271.2(1C), 271.5(2).
• The third scenario covers situations where there has been deception of the victim about the provision of sexual services, or exploitation, or the confiscation of travel or identity documents: ss 271.2(2), 271.2(2A), 271.5(2A).
• The fourth scenario is relevant when there has been deception relating to the nature and extent of sexual services to be provided or the existence or quantum of debt owed: ss 271.2(2B), 271.2(2C), 271.5(2B).

The transnational trafficking offences under s 271.2(1B), (1C), (2) and (2A) become ‘aggravated offences of trafficking in persons’ under s 271.3(1)(a) if it can be shown that the accused committed the offence with the intention to exploit the victim after the victim entered into or exited from Australia.  The offences under s 271.2(1B), (1C), (2) and (2A) may also be aggravated if the accused, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment or engages in conduct that gives rise to a danger of death or serious harm to the victim or another person and is reckless as to that danger: s 271.3(1)(b), (c).

Child trafficking

Section 271.4 of the Criminal Code (Cth) creates an offence for cross-border trafficking in children and s 271.7 contains an offence for domestic trafficking in children:

• Under s 271.4(1) it is an offence to ‘organise or facilitate the entry or proposed entry into Australia, or the receipt in Australia, of another person’ under the age of 18.
• Under s 271.4(2) it is an offence to ‘organise or facilitate the exit or proposed exit from Australia of another person’ under the age of 18.
• Under s 271.7(1) it is an offence to organise or facilitate the transportation of a person under the age of 18 from one place in Australia to another place in Australia.

Debt bondage

Division 271, Subdivision C, ss 271.8 and 271.9 of the Criminal Code (Cth) contain two offences relating to debt bondage.  The term ‘debt bondage’ is defined in the Criminal Code (Cth) Dictionary.  Section 271.8 criminalises persons who intentionally cause another person to enter into debt bondage.  The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) substituted the offence under s 271.9 with an aggravated offence of debt bondage which applies to cases involving minors, instances in which the accused subjects the victim to cruel, inhuman or degrading treatment, or that give rise to a danger of death or serious harm to the victim or another person.

Trafficking for the purpose of organ removal

The 2013 amendments introduced Subdivision BA entitled ‘organ trafficking’ into Division 271 of the Criminal Code (Cth).  Sections 271.7B and 271.7C concern transnational trafficking for the purpose of organ removal.  Section 271.7B criminalises situations in which the accused organises or facilitates the entry or proposed entry, receipt, exit or proposed entry, ‘being reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person’ after or in the course of that entry, receipt or exit.  Section 271.7C provides an aggravated offence for cases involving minors, cruel, inhuman or degrading treatment, or conduct that gives rise to a danger of death or serious harm to the victim or another person.  Domestic trafficking in persons for the purpose of organ removal, including identical aggravations, is criminalised under ss 271.7D and 271.E of the Criminal Code (Cth)

Harbouring victims of trafficking in persons

The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) further introduced Subdivision BB entitled ‘harbouring a victim’ into Division 271.  Section 271.7F of the Criminal Code (Cth) makes it an offence to ‘harbour, receive or conceal’ another person (referred to as the victim).  Liability for this offence is contingent upon a third person committing another offence that is assisted or furthered by the harbouring, receiving or concealment of the victim. Section 271.7G introduced an aggravated offence of harbouring a victim which applies in situations where the victim is under the age of 18.

There has been an increased recognition by the Australian legislature that trafficking in persons, by its very nature, involves the suppression of the free will of the individual.[10]  None of the offences relating to trafficking in persons and slavery and servitude under Divisions 270 and 271 of the Criminal Code (Cth) contain any element that requires proof of absence of consent of the trafficked person.  While, originally, slavery and slavery-like offences focused solely upon criminalising deceptive conduct, there has been an increased recognition that many victims of trafficking in persons in Australia do give their consent to, or acquiesce in, the trafficking in question.[11] The Australian Parliament has recognised that the majority of cases involving slavery and slavery-like offences tend to involve the use of subtle, non-physical means in obtaining the compliance of a victim. [12] Accordingly, s 270.1A of the Criminal Code (Cth) defines the term ‘coercion’ to capture a range of threatening and abusive conduct, including force, duress, detention, psychological oppression, abuse of power, and taking advantage of a person’s vulnerability.  This expanded definition mirrors the requirements contained in Article 3(a) of the Trafficking in Persons Protocol.  Importantly, this definition makes it possible to find that victims were coerced even where they gave their consent to the exploitation in question.  Furthermore, proof of physical restraint is not necessary to establish criminal liability.

Victim consent also does not provide a defence to any of the offences under Divisions 270 and 271.  Section 271.11B of the Criminal Code (Cth), entitled ‘no defence of victim consent or acquiescence’, specifically states that:

To avoid doubt, it is not a defence in a proceeding for an offence against this Division that a person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence,

An equivalent provision for offences involving slavery and servitude under Division 270 of the Criminal Code (Cth) is set out in s 270.11.  The Explanatory Memorandum to the legislation further explains why consent is not a defence to trafficking relating charges, noting that, ‘to allow a defendant to escape liability because his or her offending achieved the desired effect […] so that the victim appears to acquiesce in his or her treatment would be inexcusable.’[13]

The involvement and apparent consent—or lack thereof—of victims in the trafficking process is frequently called into question in criminal proceeding against traffickers in Australia because the experiences of ‘consenting victims’ does ‘not neatly fall within the paradigm of slavery and servitude’.[14]  In cases involving trafficking in persons, there is an underlying assumption that a ‘true victim’ is one that makes every possible attempt to escape, and against whom severe physical force is used.[15]  As a result, courts and juries alike find it far more difficult to convict traffickers and recognise victims as victims in cases in which the victim’s consent was garnered by emotional or psychological pressure.[16]

Research conducted by the UQ Human Trafficking Working Group in 2014–15 examines the role of consent in the prosecution and sentencing of trafficking in persons in Australia and analyses implications for victim testimony.  Using available case law, this research explores how victim consent has been dealt with in the prosecution and sentencing of federal offenders, and how discussions of consent have, in certain cases, been used to undermine the credibility of victims in the trial process.  This research reflects on the conceptual and practical significance of consent in trafficking in persons prosecutions in Australia and develops recommendations to overcome common stereotypes and protect the rights of trafficked persons. 

The full reports has been published in Andreas Schloenhardt & Hannah Bowcock, ‘“Sex Slaves” and Shrewd Business Women: The Role of Victim Consent in Trafficking in Persons in Australia’ (2015) 39(2) Melbourne University Law Review.

The Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth) clarifies the issue of video link evidence.  This amending legislation adds notes to the end of subsss 270.12(1) and 271.12(1) explicitly stating that provisions dealing with video link evidence apply to proceedings for offences under ss 270 and 271.[17]  The addition of this note reflects an understanding of the transnational element often involved in these crimes, which may require witnesses living overseas to give evidence. Allowing overseas witnesses to give evidence via video link ensures that issues of cost, inconvenience, trauma and distress do not preclude these witnesses from giving evidence.[18]

All States and Territories except for Queensland and Tasmania have enacted offences similar to those under Division 270 of the Criminal Code (Cth)) (in their form prior to its amendment in 2013).  The following table sets out relevant provisions in each jurisdiction.  Given the fact that most of the known cases of trafficking in persons in Australia involve foreign nationals who have been brought to Australia for the purpose of exploitation, the offences under State and Territory laws have found extremely limited application.

Sentences and sanctions imposed on persons convicted for trafficking in persons in Australia have attracted very little consideration and analysis in official and academic sources.  Such analysis is complicated by the discretionary nature of sentencing decisions in Australia and the fundamental requirement that such decisions be made on the specific facts of each case.  Moreover, given the small number of convictions for trafficking in persons offences in Australia it is neither possible to meaningfully compare the sentences with those for other offences nor to state a general conclusion that sentences imposed have been unduly lenient or harsh.

In 2011–12, the Human Trafficking Working Group undertook the first comprehensive analysis of the punishment and sentencing of trafficking in persons offenders in Australia.  This research examines the criminalisation and punishment requirements of international instruments binding on Australia and other guidelines and best-practice documents produced by UNODC and other international bodies.  It outlines the relevant slavery, sexual servitude and trafficking in persons offences in Divisions 270 and 271 Criminal Code (Cth), and analyses the sentences imposed by Australian courts.  The research also develops a number of recommendations designed to provide greater guidance and consistency in sentencing trafficking in persons offenders.

The full report hast been published in Matthew Cameron & Andreas Schloenhardt, ‘Punishing Trafficking in Persons: International Standards and Australian Experiences’ (2012) 24(1) Bond Law Review 1–29.