Human Trafficking and Slavery
Human Trafficking and Slavery
Human trafficking encompasses a range of offences including those which involve people being moved domestically or across borders for the purposes of exploitation. It also includes offences in which people already in Australia are subjected to exploitative practices like slavery, servitude, forced labour or forced marriage. These offences differ from people smuggling, which generally involves the movement of people across borders, usually on a payment-for-service basis, but not for the purposes of exploitation of the victim by the offender. It is difficult to determine the true level of human trafficking in Australia due to the clandestine nature of this crime along with probable high levels of under-reporting. Australia is a known destination country for victims of trafficking particularly from Thailand, Malaysia, the Philippines and Korea.
Slavery involves exercising rights of ownership over another including from a debt or contract. Slavery-like offences include servitude, forced labour, deceptive recruiting and forced marriage.
To date, the majority of victims identified by Australian authorities and matters prosecuted by the CDPP have involved women working in the sex industry. However increasingly, victims of other forms of labour exploitation are being identified including in the agricultural, construction and hospitality industries.
Offences in this area are contained in Divisions 270 and 271 of the Criminal Code and cover the following types of offences:
- forced labour;
- deceptive recruiting;
- trafficking in persons;
- debt bondage; and
- organ trafficking.
Maximum penalties vary but are up to 25 years imprisonment for the most serious offences.
Since the commencement of Divisions 270 and 271 of the Criminal Code, 16 people have been convicted for offences under Division 270 or 271. Ten of those people were convicted of slavery offences, 4 of sexual servitude offences and 2 of trafficking in persons. As at 30 June 2013, 6 people trafficking matters were before the courts. Of those 6 matters, 1 matter was at the sentencing stage and 1 matter was at the appeal stage.
Commonly Used Offences
- s.270.3(1) Criminal Code – slavery
- s.270.6A(1) Criminal Code – forced labour
- s.271.2(1B) Criminal Code – trafficking in persons reckless as to exploitation
The maximum penalty for an offence of slavery is 25 years imprisonment.
The maximum penalty for an offence of forced labour is 12 years imprisonment for an aggravated offence and 9 years imprisonment in any other case. The maximum penalty for an offence of trafficking in persons reckless as to exploitation is 12 years imprisonment.
The CDPP provides sentencing data to the Commonwealth Sentencing Database (CSD). Permission to access the CSD can be obtained at http://njca.com.au/sentencing/.
Director’s Litigation Instructions
In 2011, the UN Special Rapporteur on Trafficking in Persons especially Women and Children visited Australia and met with a number of bodies and individuals, including various Commonwealth and State Government Law Enforcement agencies including CDPP. A link to the Special Rapporteur’s Report can be found here. Amongst the Specials
Rapporteur’s recommendations for law reform in Australia were proposals to increase protections for vulnerable witnesses and victims giving evidence in human trafficking prosecutions, and broadening their access to compensation.
In 2013 the Criminal Code was amended by The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 which commenced on 7 March 2013. These amendments are designed to:
- introduce new offences of forced marriage, harbouring a victim, and standalone offences of forced labour and organ trafficking;
- expand the definition of exploitation to include a range of slavery-like practices;
- extend the application of existing offences of deceptive recruiting and sexual servitude so they apply to non-sexual servitude and all forms of deceptive recruiting;
- ensure that the slavery offence will apply to conduct which reduces a person to slavery, as well as conduct involving a person who is already a slave;
- increase the penalties applicable to the existing debt bondage offences, to ensure they adequately reflect the relative seriousness of the offences;
- broaden the definition of exploitation under the Code to include a range of slavery-like practices;
- amend existing definitions into the Code to capture more subtle forms of coercion, including psychological oppression and the abuse of power or a person’s vulnerability; and
- improve the availability of reparations to individual victims of Commonwealth offences, including slavery and human trafficking.
On 29 June 2013 the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 commenced. This Bill amended the Crimes Act 1914 to provide a scheme for the use of victim impact statements in the sentencing of federal offenders and extended existing vulnerable witness protections available to child witnesses to adult victims of slavery, slavery-like and human trafficking offences, as well as witnesses who are recognised by the courts as ‘special witnesses’. It also added a new category of vulnerable witness protections to assist victims of child sexrelated, slavery, slavery-like and human trafficking offences to give evidence in re-trials and subsequent trials of those offences. The Criminal Code was also amended to allow a court to hear evidence by video link from witnesses outside Australia in proceedings for slavery, slavery-like and human trafficking offences.
In 2012 the CDPP provided submissions to and appeared before the following Parliamentary Committees:
- Senate Standing Committee on Legal and Constitutional Affairs inquiry into the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012; and
- Joint Standing Committee on Foreign Affairs, Defence and Trade Inquiry into Slavery, Slavery-like Practices and People Trafficking.
Assistance for Victims
The CDPP recognises the important role that victims of crime play in the prosecution proceedings. This is reflected in our Victims of Crime Policy. The CDPP has a Witness Assistance Service that provides vulnerable victims of crime with information and support. In accordance with the Witness Assistance Service Referral Guidelines which were issued as Director’s Litigation Instruction No.14, all victims of slavery and sexual servitude offences must be referred to the Witness Assistance Service so that appropriate information and support is available throughout the prosecution process.
Human Trafficking – Sexual Servitude
- McIvor & Anor v R  NSWCCA 264 – Sexual Servitude
- R v Kovacs  QCA 417 – Sexual Servitude
- R v Trivedi NSWDC (08 05 2012) – Employment
- DPP v Tan Soon  VCC – Employment
- R v Sieders & Yotchomchin – 2007 4 DCLR (NSW) 255
- Sieders & Somsri v R  NSWCCA 187
- R v Netthip  NSWDC 159
- R v Tang  HCA 39
- R v Dobie  QCA 21 – Appeal Against Conviction (Human Trafficking)
- Kam Tin Ho v R; Ho Kam Ho v R; Sarisa Leech v R  VSCA 344 – Appeal Against Conviction and Sentencing