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Australian Legal Framework

This page sets out Australian legal responses to address slavery and trafficking in three areas: criminal law, migration law and workplace law.

The Australian anti-trafficking framework provides immigration support to 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).


In February 2013, the Australian Government passed the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013, which implemented a number of additional offences including offences of forced marriage and forced labour.  The Act also repealed the definition of sexual servitude to include a broader definition of servitude and expanded the definition of “coercion” as referred to in Divisions 270 and 271.


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:

  • 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.


Servitude offences

Division 270 of the Criminal Code also criminalises servitude.  The offence carries a penalty of 15 years imprisonment or 20 years for an aggravated offence.

Section 270.4(1) defines 'servitude' as:

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.


Section 270.4(2) makes it clear that servitude as defined in subsection (1) applies:

whether the coercion, threat or deception is used against the victim or another person.


Section 270.4(3) states that:

the victim may be in a condition of servitude whether or not:

(a)  escape from the condition is practically possible for the victim; or

(b)  the victim has attempted to escape from the condition.


The substance of the servitude offences can be found within Section 270.5 of the Code. It is an offence under Section 270.5(1) to:

Cause a person to enter into or remain in servitude

(1) The person commits and offence if:

(a)  the person engages in conduct; and

(b)  the conduct causes another person to enter into or remain in servitude.


It is also an offence under Section 270.5(2) to

Conduct a business involving servitude

(1) The person commits an offence if:

(a)  the person conducts any business; and

(b)  the business involves the servitude of another person (or persons).


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


Forced labour offences

Forced labour is criminalised under Section 270.6 of the Criminal Code. The offence carries a penalty of 9 years imprisonment or 12 years imprisonment for an aggravated offence.

Section 270.6(1) defines ‘forced labour’ as:

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.


Section 270.6(2) makes it clear that subsection (1) applies:

whether the coercion, threat or deception is used against the victim or another             person


Section 270.6(3) states that:

The victim may be in a condition of forced labour whether or not: (a)  escape from the condition is practically possible for the victim; or (b)  the victim has attempted to escape from the condition.


The substance of the forced labour offences can be found within Section 270.6A of the Code. It is an offence under Section 270.6A(1) to:

Cause a person to enter into or remain in forced labour

(1) The person commits an offence if:

(a)  the person engages in conduct; and

(b)  the conduct causes another person to enter into or remain in forced labour.


It is also an offence under Section 270.6A(2) to:

Conduct a business involving forced labour

(1) The person commits an offence if:

(a)  the person conducts any business; and

(b)  the business involves the forced labour of another person (or persons).


Further, 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 labour or services by deceiving that other person about any of the following:

  • the extent to which the victim will be free to leave the place or area where the labour or services are provided; or
  • the extent to which the victim will be free to cease providing the labour or services; or
  • the extent to which the victim 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 criminalised under Section 270.7A of the Criminal Code. The offence carries a penalty of 4 years imprisonment or 7 years imprisonment for an aggravated offence.

Section 270.7A(1) defines a marriage as a ‘forced marriage’ if:

because of the use of coercion, threat or deception, one party to the marriage (the victim) entered into the marriage without freely and fully consenting.


The substance of the forced marriage offence can be found within Section 270.7A of the Code. It is an offence under Section 270.7A(1) to:

Cause a person to enter into a forced marriage

(1) The person (the first person ) commits an offence if:

(a)  the first person engages in conduct; and

(b)  the conduct causes another person to enter into a forced marriage as the victim of the marriage.


Further, it is an offence under Section 270.7A(2) to be a party to a forced marriage (other than being the victim):

(2) The person commits an offence if:

(a) the person is a party to a marriage (within the meaning of section 270.7A); and

(b) the marriage is a forced marriage; and

(c) the person is not a victim of the forced marriage.


Organ trafficking offences

Divisions 271.7A to 271.7E make organ trafficking an offence.

Division 271.7A defines ‘removal of organs contrary to this Subdivision’ if:

(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 Divisions 271.7B and 271.7C to engage in conduct in facilitating or organising the entry or exit, proposed entry or exist, or receipt of a person into or from Australia; or be 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 the entry, receipt or exit.


Division 271.7D makes domestic organ trafficking an offence.


These offences carry a penalty of 12 years, 20 years for an aggravated offence, or 25 years for an aggravated offence where the victim is under 18.


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 fulfil 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 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, 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 4 years’ imprisonment (or 7 years for an aggravated offence).


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). 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 or where more than 5 people are smuggled into the foreign country.


Child sex offences

Divisions 272 and 273 of the Criminal Code were introduced in 2010 to ensure that there were adequate protections in place for children against sexual exploitation. These offences apply to conduct engaged in by Australian citizens or permanent residents that occurs outside of Australia.


Division 272 includes separate offences for engaging in or causing a child to engage in sexual intercourse, engaging in or causing a child to engage in any other form of sexual activity, and procuring or grooming a child to engage in sexual activity.


Division 273 includes separate offences involving child pornography material and child abuse material.


The Commonwealth Migration Act

Section 234 of the Migration Act 1958 (Cth) ('the Act') criminalises conduct relating to the use or presentation of forged or false documents and statements for visa purposes, imposing a maximum penalty of 10 years imprisonment and/or a significant fine (currently $17,000) or 20 years’ imprisonment for an aggravated offence involving more than five persons. 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

In 2007, provisions relating to the conduct of employers were inserted into the Migration Act 1958following the Migration Amendment (Employer Sanctions) Act 2007 (Cth). 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 slavery, or slavery like conditions, servitude, forced labour, forced marriage and/or debt bondage. 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 had 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 Howells Report found that the number of people who were working without permission to work, or were working in breach of their visa conditions, had increased since the amendments came into force.


The Howells Report also raised a number of concerns about the welfare of unauthorised workers. It found that such workers were vulnerable to abuse and exploitation such as physical abuse and sexual exploitation, unsafe work practices and underpayment. The Howells 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.


In February 2013, new legislation was passed to give effect to the recommendations made in the Howells Report. The purpose of the reforms was to introduce an infringement notice scheme and non-fault civil penalty provisions in addition to the aggravated and non-aggravated criminal penalties already available, in an attempt to deter employers from non-compliant behaviour. The new provisions came into force on 1 June 2013.


The Commonwealth Fair Work Act

The Fair Work Act 2009 (Cth) ('the FWA') sets out employment conditions and standards that must be met by all employers in Australia, such as maximum weekly hours of work, leave, public holidays, notice of termination and redundancy pay requirements, as well as the right to request flexible working arrangements. It also outlines the minimum wage for those who are subject to either 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, the FWA provisions are vital in empowering exploited persons in Australia with the rights and protections needed in order to access meaningful justice.

 

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