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Australian Legal Framework

Criminal law


The Criminal Code Act 1995 (Cth) (Criminal Code) outlines slavery, slavery-like and trafficking offences. All investigations under these offences are carried out by the Australian Federal Police (AFP) and prosecutions are undertaken by the Commonwealth Director of Public Prosecutions (CDPP).


In February 2013, the Australian Government passed the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 (Cth). This amended the Criminal Code by:


  • adding additional offences of forced marriage and forced labour
  • broadening the definition of servitude beyond sexual servitude
  • expanding the definition of coercion.

Slavery offences


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.


Slavery offences are set out in Division 270 of the Criminal Code.


It is an offence under s 270.3(1) of the Criminal Code to:


  • reduce a person to slavery;
  • possess a slave, or exercise over a slave any of the other powers attaching to the right of ownership;
  • engage in slave trading;
  • enter into any commercial transaction involving a slave; or
  • exercise control or direction over, or provide finance for, any act of slave trading or any commercial transaction involving a slave.

This applies regardless of whether the conduct occurs within or outside of Australia. Each offence carries a maximum penalty of 25 years imprisonment.


Servitude offences


Servitude is:


the condition of a person (the victim) who provides labour or services, if, because of the use of coercion, threat or deception:


(a) a reasonable person in the position of the victim would not consider himself or herself to be free:


(i) to cease providing the labour or services; or


(ii) to leave the place or area where the victim provides the labour or services; and


(b) the victim is significantly deprived of personal freedom in respect of aspects of his or her life other than the provision of the labour or services.


It is an offence under s 270.5 of the Criminal Code to:


  • cause a person to enter into or remain in servitude;
  • conduct a business involving servitude.

Prior to the passing of the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth), the offence of servitude was narrower and encompassed only sexual servitude. This is reflected in the servitude cases that had previously gone before the criminal court.


Forced labour offences


Forced labour is:

the condition of a person (the victim) who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person in the position of the victim would not consider himself or herself to be free:

(a) to cease providing the labour or services; or

(b) to leave the place or area where the victim provides the labour or services.


It is an offence under s 270.6 of the Criminal Code to:


  • engage in conduct that causes another person to enter into or remain in forced labour
  • conducts a business involving forced labour.

Deceptive recruiting for labour or services


The Criminal Code also criminalises, in s 270.7, conduct that intends to induce another (the victim) to provide labour or services if the victim is deceived about:


  • the extent to which they will be free to leave the place or area where the labour or services are provided; or
  • the extent to which they will be free to cease providing the labour or services; or
  • the extent to which they will be free to leave his or her place of residence; or
  • if there is or will be a debt owed or claimed to be owed by the victim in connection with the engagement - the quantum, or the existence, of the debt; or
  • the fact that the engagement will involve exploitation, or the confiscation of the victim's travel or identity documents; or
  • if the engagement is to involve the provision of sexual services - that fact, or the nature of sexual services to be provided (for example, whether those services will require the victim to have unprotected sex).

Forced marriage offences


Forced marriage is a marriage where one party has entered into the marriage without freely and fully consenting because:


  • of coercion, threat or deception; or
  • the party was incapable of understanding the nature and effect of the marriage e.g. they are under 16 years of age.

It is an offence under s 270.7B to:


  • engage in conduct that causes another person to enter into a forced marriage
  • be a party to the forced marriage where you know the marriage is forced and you are not a victim of the forced marriage.

Forced marriage matters have also been heard before courts in the context of civil and family law proceedings. See the Family Law Act 1975 (Cth) and the Marriage Act 1961 (Cth)).


People trafficking offences


People trafficking is the organisation or facilitation of the entry, proposed entry or receipt of another person into Australia or the exit or proposed exit, of another person out of Australia where:


  • there is the use of coercion, threat or deception which induces the compliance of that person
  • the trafficker is reckless as to whether that person will be exploited, either by the trafficker or someone else
  • the trafficker deceives the person about the fact that the person will be required to provide sexual services, otherwise exploited or will have their travel or identity documents confiscated
  • the person has entered an arrangement to provide sexual services but the trafficker deceives that person about the nature of the sexual services to be provided or the extent to which the person will be free to cease providing the sexual services or to leave the place where the sexual services will be provided or the place where they reside.

These are offences are under div 271 of the Criminal Code.


It is important to note that that these offences are not limited to trafficking for the purposes of sexual exploitation but provide coverage for all forms of trafficking.


There are offences for domestic trafficking in persons in ss 271.5-271.6 and also special offences relating to the trafficking of children in ss 271.4 and 271.7 of the Criminal Code.


Organ trafficking offences


Organ trafficking is:

(a) the removal, or entering into an agreement for the removal, would be contrary to the law of the State or Territory where it is, or is to be, carried out; or

(b) neither the victim, nor the victim's guardian, consents to the removal, and it would not meet a medical or therapeutic need of the victim.


It is an offence under s 271.7B of the Criminal Code to engage in conduct that facilitates or organises the entry or exit, proposed entry or exit, or receipt of a person into or from Australia; and be reckless as to whether the conduct will result in the removal of an organ of the victim (as outlined above), by the offender or another person, after or in the course of the entry, receipt or exit.


It is also an offence under s 271.7D to engage in domestic organ trafficking.


Debt bondage


Debt bondage is when a person pledges their services or the services of another person as security for a debt and the:


  • debt is manifestly excessive
  • reasonable valuable of the services is not off-set against the debt
  • length and nature of the services is not limited and defined.

It is an offence under s 271.8 of the Criminal Code to cause another person to enter into debt bondage.


People smuggling offences


People smuggling is where a person facilitates or organises the illegal entry of another person into a foreign country (whether or not via Australia).


These are offences under div 73 of the Criminal Code.


Child sex offences


Australian citizens and permanent residents can be prosecuted for child sex offences committed outside of Australia. This includes:


  • engaging in or causing a child to engage in sexual intercourse or sexual activity as well as procuring or grooming a child to engage in sexual activity (div 272 of the Criminal Code)
  • possessing, controlling, producing, distributing, obtaining or facilitating the production or distribution of child pornography material or child abuse material (div 273 of the Criminal Code).

Migration law


The Australian anti-trafficking framework provides immigration support to people who have experienced trafficking or slavery. See visa options for trafficked people.


The Migration Act


The Migration Act 1958 (Cth) (Migration Act) criminalises conduct relating to:


  • using or presenting forged, false or misleading statements or documents to enter Australia or for visa purposes (s 234)
  • travelling or remaining in Australia on a visa granted to another person (s 236).

The Migration Act was amended by the Migration Amendment (Employer Sanctions) Act 2007 (Cth) and Migration Amendment (Reform of Employer Sanctions) Act 2013 (Cth) to include offences and civil penalties relating to employing or referring for work (either paid or unpaid) individuals without a valid visa or in breach of visa conditions. These are offences under ss 245AB-245AEB of the Migration Act.


Workplace law


The Fair Work Act 2009 (Cth) provides minimum wages and conditions such as leave to all employees. This is enforced by the Fair Work Ombudsman.

 

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