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Australian Legal Framework

This page sets out how the Australian legal system tries to deter and punish slavery and trafficking in three areas: criminal law, migration law and workplace law.

The Australian system has also responded to the immigration needs of people who have experienced trafficking or slavery.  You can read about immigration support on our page about Visa Options.

The Commonwealth Criminal Code

Slavery and trafficking, as well as some related practices, are against the law in Australia and carry heavy penalties. The criminal offences are set out in the Federal Criminal Code Act 1995 ('the Criminal Code'). All investigations under these offences are carried out by the Australian Federal Police (AFP). If a case is taken to court, it is prosecuted by the Commonwealth Director of Public Prosecutions (CDPP).

Slavery offences

The slavery offences are set out in Division 270 of the Criminal Code. They apply to all persons, regardless of whether the conduct occurs within or outside of Australia. They each carry a maximum penalty of 25 years imprisonment.

Section 270.1 of the Criminal Code defines the term '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.

This reflects the international definition of slavery found in the Slavery Convention (1926), to which Australia is a signatory.

The substance of the slavery offences can be found within section 270.3 of the Criminal Code. It is an offence under section 270.3(1) to:

  • 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.

Sexual servitude offences

Division 270 of the Criminal Code also criminalises sexual servitude.  Section 270.4(1) defines 'sexual servitude' as

the condition of a person who provides sexual services and who, because of the use of force or threats: (a) is not free to cease providing sexual services; or (b) is not free to leave the place or area where the person provides sexual services.

Under section 270.6 of the Criminal Code, it is an offence to intentionally or recklessly cause another person to enter into or remain in sexual servitude, or to conduct a business that involves the sexual servitude of another person.

These offences have a maximum penalty of 15 years imprisonment, or 20 years if it is an aggravated offence.

The offences that were introduced by Division 270 also included an offence of deceptive recruiting for sexual services. Section 270.7 of the Criminal Code imposes up to 7 years imprisonment (9 if it is an aggravated offence) on any person who intentionally induces another person into an engagement to provide sexual services by deceiving that other person about any of the following:

  • the fact that the engagement will involve the provision of sexual services, exploitation, debt bondage or the confiscation of the person's travel or identity documents;
  • the nature of the sexual services to be provided;
  • the extent to which the person will be free to cease providing sexual services or to leave their residence; or
  • the amount or existence of any debt owed or claimed to be owed.

Trafficking in persons offences

Division 271 of the Criminal Code criminalises activities involving the trafficking of persons. Importantly, these offences are not limited to trafficking for the purposes of sexual exploitation, and provide coverage for trafficking in all its forms.

These provisions were designed to fulfill Australia's obligations under the Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children (2000) (opens in pdf).

The trafficking offences found within Division 271 criminalise

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 force of threats 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, will be otherwise exploited, will be subject to a debt or will have their travel or identity documents confiscated; or
  • 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.

The maximum penalty of all the trafficking offences is 12 years imprisonment, although this is increased to 20 years if it is an aggravated offence. However, the offences relating to trafficking in children attract a maximum penalty of 25 years imprisonment.

There are special offences relating to the trafficking of children found within section 271.4 of the Criminal Code. Sections 271.5 to 271.7 create similar offences for the domestic trafficking of persons and children with the same maximum penalties.

Section 271.8 also creates a stand-alone offence of debt bondage. The Criminal Code defines 'debt bondage' as occurring when a person pledges his or her services, or the services of another person, as security for a debt, if the debt is "manifestly excessive", or the "reasonable value" of the services is not set off against the debt, or "the length and nature of those services are not respectively limited and defined".

The offence of debt bondage carries a maximum penalty of 12 months imprisonment.

People smuggling offences

Division 73 of the Criminal Code includes a number of people smuggling offences where a person facilitates or organises the illegal entry of another person into a foreign country (whether or not Australia) for a benefit. The maximum penalty is 10 years imprisonment, however section 73.2 provides for up to 20 years imprisonment where the person who is smuggled will be exploited upon entering the foreign country.

Section 73.2 also provides the only Australian legislative definition of 'forced labour'. It is defined as

the condition of a person who provides labour or services (other than sexual services) and who, because of the use of force or threats: (a) is not here to cease providing labour or services; or (b) is not free to leave the place or area where the person provides labour or services.

However, there is no stand-alone offence of 'forced labour' in Australian criminal law.

The Commonwealth Migration Act

Section 234 of the Migration Act 1958 (Cth) ('the Act') criminalises conduct relating to the use of presentation of forged or false documents and statements for visa purposes, imposing a maximum penalty of 10 years imprisonment and/or id="mce_marker"10,000. The same penalty applies under section 236 of the Act to a person who travels to or remains in Australia on a visa that was granted to another person.

Employer sanctions offences

New provisions were inserted into the Act in 2007 following the Migration Amendment (Employer Sanctions) Act 2007 (Cth). The new sections 245AA to 245AK make it an offence to knowingly or recklessly employ or refer for work (either paid or unpaid) a person who does not have a valid visa or who is working in breach of their visa conditions. Section 245AH of the Act includes aggravated offences where a person is being exploited through forced labour, sexual servitude or slavery. The maximum penalty for the employer sanctions offences is 2 years imprisonment, or 5 years for aggravated offences.

However, in his Report of the 2010 Review of the Employer Sanctions amendments (opens in pdf), barrister Stephen Howells concluded that the amendments have not been effective in deterring employers and labour suppliers from employing or referring non-citizens who do not have permission to work. In fact, the Report found that number of people who are working without permission to work, or are working in breach of their visa conditions has increased since the amendments came into force.

The Report raised a number of concerns about the welfare of unauthorised workers. It found that such workers are vulnerable to abuse and exploitation such as physical abuse and sexual exploitation, unsafe work practices and underpayment. The Report made a number of recommendations in light of its findings, including an amendment to the act to include a civil penalty with strict liability, and the establishment of a system of infringement notices for non-compliant employers.

The Department of Immigration and Citizenship is currently considering community submissions on this Report.

The Commonwealth Fair Work Act

The Fair Work Act 2009 (Cth) ('the FWA') sets out employment conditions and standards that must be met, such as maximum weekly hours of work, leave, public holidays, notice of termination and redundancy pay requirements, and the right to request flexible working arrangements. It also outlines the minimum wage for both those who are subject to industry- or occupation-based awards and those who are award- and agreement-free employees.

The FWA is enforced by the Fair Work Ombudsman.

In the context of trafficking and slavery, these provisions are be vital in empowering exploited persons in Australia with the rights and protections needed in order to access meaningful justice. It is often very difficult to prove the high threshold required to constitute one of the slavery offences, and without a stand-alone offence of forced labour, the FWA is one of the few remaining avenues for people who have been exploited in Australia to seek redress.

 

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Anti-Slavery Australia, University of Technology Sydney
Email: antislavery@uts.edu.au
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