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In Australia, offences relating to trafficking in persons first came into existence in the late 1990s.  Initially, these offences only concerned slavery and similar practices until broader offences applicable to all forms of trafficking in persons were added in 2005 and again in 2013.  This website outlines the evolution of the offences relating to trafficking in Australia, sets out relevant provisions under the Criminal Code (Cth), and explores prosecution and sentencing under the current laws.

Evolution of Australia’s Trafficking in Persons Offences

Prior to 1999, there were no specific offences relating to trafficking or trafficking-like practices anywhere in Australian law.  At that time, four 19th-century British Imperial Acts governed the law on slavery and the slave trade in Australia.  A review by the Law Reform Commission of Australia conducted in 1990 recommended the introduction modern and concise statutory federal offences that would also implement Australia’s obligations to abolish slavery under the 1926 Convention to Suppress the Slave Trade and Slavery and the 1956 UNSupplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

In 1997, the Australian Government asked Model Criminal Code Officers Committee (MCCOC) to review a proposal to enact laws dealing with ‘sex slavery’.  The Committee presented a discussion paper in April 1998 that formed the bases of the Criminal Code Amendment (Slavery and Sexual Servitude) Bill introduced later that year.[1]  This Bill, however, lapsed when a federal election was called.  In November 1998, MCCOC released the Offences Against Humanity — Slavery, Final Report.  The report specifically proposed a number of model provisions to be introduced into the Criminal Code (Cth) in order to criminalise slavery, sexual servitude and deceptive recruiting for sexual services, which were later absorbed in new legislation.[2]

In response to the recommendations made by MCCOC, the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth) was drafted and passed in the same year.  The Act inserted Division 270 entitled ‘slavery, sexual servitude and deceptive recruiting’ into Chapter 8 of the Criminal Code (Cth), creating new offences of slavery (s 270.3 of the Criminal Code), sexual servitude (s 270.6), and deceptive recruitment for sexual services (s 270.7).  These criminal offences took a rather narrow approach with a principal focus on trafficking for the purpose of sexual exploitation.  Other forms of trafficking were not considered in any detail at that time, warranting further legislative amendments in later years.

Further amendments to Australia’s trafficking in persons offences and a considerable broadening of their scope and availability followed Australia’s signature of the Trafficking in Persons Protocol on 11 December 2002.  Around the same time, media reports highlighted the mishandling of trafficking cases by government agencies, prompting a parliamentary inquiry into this issue and calls for major improvements to Australia’s response to trafficking in persons.  This eventually led to the introduction of the Criminal Code Amendment (Trafficking in Persons and Debt Bondage) Act 2005 (Cth) which inserted Division 271 into the Criminal Code (Cth) creating a set of offences in respect of international and domestic trafficking in persons,[3] and debt bondage arrangements.[4] The Act also made amendments to Division 270 of the Criminal Code (Cth), including a significant extension to the scope of the existing deceptive recruiting offence in s 270.7

While the 2005 reforms brought Australia’s criminal law in line with the general criminalisation requirements under the Trafficking in Persons Protocol, several gaps and inconsistencies remained.  Draft new laws were released for publication consultation in November 2011 and on 27 February 2013 the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) was passed.  This Act introduced new, separate offences of forced labour, forced marriage, harbouring a person for the purposes of furthering the offence of trafficking, trafficking for the purpose of organ removal, and aggravated debt bondage into the Criminal Code (Cth).[5] The Act also expanded the sexual servitude and deceptive recruiting for sexual services offences to ensure these apply regardless of the industry in which such servitude or deception occurs.[6]

Division 270 Criminal Code (Cth): Slavery, servitude etc.

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.

Division 271 Criminal Code (Cth): Offences relating to Trafficking in Persons

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.

The Role of Consent

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.

Evidentiary Matters

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]

 State and Territory Offences relating to Trafficking and Related Conduct

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.

Jurisdiction, statute Section, title
Australian Capital Territory
Crimes Act 1900
s 79(1) Causing sexual servitude
s 79(2) Conducting a business involving sexual servitude
s 80 Deceptive recruiting for sexual services
New South Wales
Crimes Act 1900
s 80D Causing sexual servitude
s 80E Conduct of business involving sexual servitude
Northern Territory
Criminal Code
s 202B Sexual servitude
s 202C Conducting business involving sexual servitude
s 202D Deceptive recruiting for sexual services
South Australia
Criminal Law Consolidation
Act 1935
s 66(1) Inflicting sexual servitude
s 66(2) Procuring commercial sexual services by way of undue influence
s 67 Deceptive recruiting for commercial sexual services
Victoria
Crimes Act 1958
s 60AB(2) Causing someone to provide commercial sexual services by use of force, threat, etcetera 
s 60AB(3) Inducing or causing someone to provide commercial sexual services knowing, or reckless as to whether, the other person is not free to stop providing those services because of force, threat, et cetera
s 60AB(4) Conducting a business that involves the provision of commercial sexual services by use of force, threat, et cetera
s 60AD Deceptive recruiting for commercial sexual services
Western Australia
Criminal Code
s 331B Sexual servitude
s 331C Conducting business involving sexual servitude
s 331D Deceptive recruiting for commercial sexual services

Sentencing

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.

Footnotes

[1] MCCOC, Model Criminal Code, Chapter 9: Offences Against Humanity, Slavery, Discussion Paper (1998).
[2] MCCOC, Model Criminal Code, Chapter 9: Offences Against Humanity, Slavery, Final Report (1998) 41–44.
[3] Criminal Code (Cth) ss 271.2–271.7.
[4] Criminal Code (Cth) ss 271.8–271.9.
[5] Criminal Code (Cth) ss 270.6A, 270.7B, 271.7B–E, 271.7F–G, 271.9.
[6] Criminal Code (Cth) ss 270.5, 270.7.
[7] Criminal Code (Cth) s 5.2(1).
[8] Criminal Code (Cth) s 5.4(1).
[9] Explanatory Memoranda, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Act 2014, 21–22.
[10] Explanatory Memorandum, Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012, 9 – 10.
[11] Explanatory Memorandum, Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012, 9 – 10.
[12] Explanatory Memorandum, Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012, 1 – 2; see also the advice provided by the Special Rapporteur on Trafficking in Persons, Ms Joy Ngozi Ezeilo: UN General Assembly, Human Rights Council, Report of the Special Rapporteur on trafficking in persons, especially women and children, on her mission to Australia (17–30 November 2011), UN Doc A/HRC/20/18/Add.1 (18 May 2012) 4 [6]; see further discussion in UNODC, Issue Paper: The Role of ‘Consent’ in the Trafficking in Persons Protocol (United Nations, 2014) 40–41.
[13] Explanatory Memorandum, Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012, 31.
[14] Vanessa Munro, ‘Of Rights and Rhetoric: Discourses of Degradation and Exploitation in the Context of Sex Trafficking’ (2008) 35 (2) Journal of Law and Society 240, 250.
[15] Julia Quilter, ‘Re-Framing the Rape Trial: Insights from Critical Theory about the Limitations of Legislative Reform’ (2011) 35 (1) Australian Feminist Law Journal 23, 35; see further Jonathan Crowe, ‘Consent, Power and Mistake of Fact in Queensland Rape Law’ (2011) 23 (1) Bond Law Review 21, 28 – 29.
[16] Julia Quilter, ‘Re-Framing the Rape Trial: Insights from Critical Theory about the Limitations of Legislative Reform’ (2011) 35(1) Australian Feminist Law Journal 23, 35; see further Jonathan Crowe, ‘Consent, Power and Mistake of Fact in Queensland Rape Law’ (2011) 23(1) Bond Law Review 21, 28–29.
[17] Criminal Code (Cth) s 279.
[18] Explanatory Memorandum, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013, 53–54.