Human trafficking

Human trafficking is a global problem and Australia is a well-known destination for trafficked people from countries such as Thailand, Malaysia and the Philippines. The extent of human trafficking in Australia is difficult to measure, however, because it is often hidden or likely unreported. Commonwealth laws that criminalise human trafficking are found in the Criminal Code Act 1995.

The offence defined

The offence of trafficking occurs when a person:

1. organises and facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
2. uses coercion, threat or deception;
3. by using that coercion, threat or deception, obtains the other person’s consent for the entry, proposed entry or receipt.

It is also committed when a person organises or facilitates another person’s exit or proposed exit from Australia in the same way, and when the first person is reckless about whether the other person will be exploited after that entry, exit or receipt.

Exploitation is defined as the conduct of forcing a trafficked person into:

• slavery, or a condition similar to slavery;
• servitude;
• forced labour;
• forced marriage;
• debt bondage.

A person will also be guilty of trafficking if they deceive the other person about the fact that the purpose of the other person’s entry, exit or receipt is to provide sexual services, or to be exploited, or that the other person’s travel or identity documents will be confiscated.

The maximum penalty is imprisonment for 12 years.

Human trafficking is different to people smuggling, which is the organised, illegal movement of people across borders, usually under a payment-for-service arrangement.

Trafficking for sexual services

A person commits a trafficking offence if they organise or facilitate the entry, proposed entry, receipt, exit or proposed exit, of another person into or out of Australia and there is an arrangement for the second person to provide sexual services in Australia.

The offence involves the person deceiving the other person about:

• the nature of the sexual services to be provided;
• the extent of the other person’s freedom to:
  • leave the place where the person provides the sexual services;
  • stop providing sexual services;
  • leave their place of residence;
• whether there is a debt owed, and the amount, connected to the provision of sexual services.

The maximum penalty is imprisonment for 12 years.

Aggravated offence

The offence will be an aggravated offence if in committing the offence, a person:

• intends for the victim to be exploited;
• subjects the victim to cruel, inhuman or degrading treatment;
• engages in conduct that risks death or serious harm to the victim or another person, and is reckless about the risk.

The maximum penalty for an aggravated offence is imprisonment for 20 years.

Trafficking of children

If the victim of trafficking is aged under 18, and the child is to be exploited or used for sexual services, the maximum penalty is imprisonment for 25 years.

Domestic trafficking

Trafficking can also be committed when a person is transported within Australia to be exploited or used for sexual services. The maximum penalty is imprisonment for 12 years, or 20 years for an aggravated offence.

Removal of organs

A person commits an organ trafficking offence if they organise or facilitate the entry, proposed entry, receipt, exit or proposed exit, of another person into or out of Australia, or transport them within Australia, and the first person is reckless about whether this will result in the removal of an organ from the other person.

The removal of the person’s organ is illegal if:

• the removal or agreement for removal contravenes the law of the state or territory where it is, or is to be, carried out; or
• neither the victim or their guardian consents to the removal and there is no medical or therapeutic need for the removal.

The maximum penalty is imprisonment for 12 years.

Harbouring a victim

If a person harbours, receives or hides a victim, and this helps a third person commit a trafficking offence, the first person commits an offence. The maximum penalty is imprisonment for 4 years, or 7 years if the victim is aged under 18.

Evidence

During court proceedings for a trafficking offence, the court can consider factors such as:

• the economic relationship between the victim, offender or their family members, and any other person;
• the terms of any written or oral agreement between the victim, offender or their family members, and any other person;
• the personal circumstances of the victim, such as:
  • whether they are entitled to be in Australia under migration law;
  • their English language proficiency;
  • the extent of their social or physical dependence on the offender or any other person.

For advice or representation in any legal matter, please contact Armstrong Legal.