Published by Geoff Harrison | 10 December 2024
Human trafficking offences are contained within Division 271 of the Criminal Code Act 1995 ('the Act'). Human trafficking is where an accused organises or facilitates the entry or proposed entry of another person into or exit out of Australia by the use of coercion, threat or deception, and that use of coercion, threat or deception results in the accused obtaining the other person's compliance in respect of that entry or proposed entry or exit or proposed exit. There are separate offences where children, sexual services, exploitation or the confiscation of a person's travel documents are involved. The relevant sentences range between 9 and 25 years imprisonment.
Slavery is defined under s270.1 of the Act 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.
Other Sources:
Attorney-Generals Department: People Smuggling and Human Trafficking
Department of Foreign Affairs and Trade: People Smuggling, Human Trafficking and Modern Slavery
Department of Social Services: Human trafficking and slavery
Crimes Legislation Amendment (Slavery, Slavery‑like Conditions and People Trafficking) Bill 2012
Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013
Cases:
DPP (Cth) v McIntosh [2016] VCC 622 (Child Trafficking)
The Queen v Tang [2008] HCA 39 (Slavery)
R v Grey (No 3) [2020] ACTSC 43(Domestic Child Trafficking)
R v Dobie [2011] QCA 21 (Trafficking in Persons)
R v KAK [2013] QCA 310 (Child Trafficking)
Extracted Legislation:
270.1 Definition of slavery
For the purposes of this Division, 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.
270.3 Slavery offences
(1) A person who, whether within or outside Australia, intentionally:
(aa) reduces a person to slavery; or
(a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or
(b) engages in slave trading; or
(c) enters into any commercial transaction involving a slave; or
(d) exercises control or direction over, or provides finance for:
(i) any act of slave trading; or
(ii) any commercial transaction involving a slave;
commits an offence.
Penalty: Imprisonment for 25 years.
(2) A person who:
(a) whether within or outside Australia:
(i) enters into any commercial transaction involving a slave; or
(ii) exercises control or direction over, or provides finance for, any commercial transaction involving a slave; or
(iii) exercises control or direction over, or provides finance for, any act of slave trading; and
(b) is reckless as to whether the transaction or act involves a slave, slavery, slave trading or the reduction of a person to slavery;
commits an offence.
Penalty: Imprisonment for 17 years.
(3) In this section:
"commercial transaction involving a slave" includes a commercial transaction by which a person is reduced to slavery.
"slave trading" includes:
(a) the capture, transport or disposal of a person with the intention of reducing the person to slavery; or
(b) the purchase or sale of a slave.
(4) A person who engages in any conduct with the intention of securing the release of a person from slavery does not commit an offence against this section.
(5) The defendant bears a legal burden of proving the matter mentioned in subsection (4).
270.3A Slavery offences--geographical jurisdiction
Section 15.4 (extended geographical jurisdiction--category D) applies to an offence against section 270.3.
270.4 Definition of servitude
(1) For the purposes of this Division, 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.
(2) Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person.
(3) 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.
270.5 Servitude offences
Causing a person to enter into or remain in servitude
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes another person to enter into or remain in servitude.
Penalty:
(a) in the case of an aggravated offence (see section 270.8)--imprisonment for 20 years; or
(b) in any other case--imprisonment for 15 years.
Conducting a business involving servitude
(2) A person commits an offence if:
(a) the person conducts any business; and
(b) the business involves the servitude of another person (or persons).
Penalty:
(a) in the case of an aggravated offence (see section 270.8)--imprisonment for 20 years; or
(b) in any other case--imprisonment for 15 years.
Alternative verdict of forced labour
(3) Subsection (4) applies if, in a prosecution for an offence (the servitude offence ) against a provision listed in column 1 of the following table, the trier of fact:
(a) is not satisfied that the defendant is guilty of that offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the forced labour offence ) against the corresponding provision listed in column 2 of the table.
(4) The trier of fact may find the defendant not guilty of the servitude offence, but guilty of the forced labour offence, so long as the defendant has been afforded procedural fairness in relation to that finding of guilt.
270.6 Definition of forced labour
(1) For the purposes of this Division, 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.
(2) Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person.
(3) 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.
270.6A Forced labour offences
Causing a person to enter into or remain in forced labour
(1) A 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.
Penalty:
(a) in the case of an aggravated offence (see section 270.8)--imprisonment for 12 years; or
(b) in any other case--imprisonment for 9 years.
Conducting a business involving forced labour
(2) A person commits an offence if:
(a) the person conducts any business; and
(b) the business involves the forced labour of another person (or persons).
Penalty:
(a) in the case of an aggravated offence (see section 270.8)--imprisonment for 12 years; or
(b) in any other case--imprisonment for 9 years.
Note: On a trial for an offence against section 270.5 (servitude offences), the trier of fact may find a defendant not guilty of that offence but guilty of the corresponding offence under this section (see subsections 270.5(3) and (4)).
271.1A Definition of exploitation
For the purposes of this Division, exploitation , of one person (the victim ) by another person, occurs if the other person's conduct causes the victim to enter into any of the following conditions:
(a) slavery, or a condition similar to slavery;
(b) servitude;
(c) forced labour;
(d) forced marriage;
(e) debt bondage.
Note: Division 270 (slavery and slavery - like offences) deals with slavery, servitude, forced labour, forced marriage and debt bondage.
Subdivision B--Offences relating to trafficking in persons
271.2 Offence of trafficking in persons
(1) A person (the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) the first person uses coercion, threat or deception; and
(c) that use of coercion, threat or deception results in the first person obtaining the other person's compliance in respect of that entry or proposed entry or in respect of that receipt.
Penalty: Imprisonment for 12 years.
(1A) A person (the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit of another person from Australia; and
(b) the first person uses coercion, threat or deception; and
(c) that use of coercion, threat or deception results in the first person obtaining the other person's compliance in respect of that exit or proposed exit.
Penalty: Imprisonment for 12 years.
(1B) A person (the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) in organising or facilitating that entry or proposed entry, or that receipt, the first person is reckless as to whether the other person will be exploited, either by the first person or another, after that entry or receipt.
Penalty: Imprisonment for 12 years.
(1C) A person (the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit of another person from Australia; and
(b) in organising or facilitating that exit or proposed exit, the first person is reckless as to whether the other person will be exploited, either by the first person or another, after that exit.
Penalty: Imprisonment for 12 years.
(2) A person (the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) the first person deceives the other person about the fact that the other person's entry or proposed entry, the other person's receipt or any arrangements for the other person's stay in Australia, will involve the provision by the other person of sexual services or will involve the other person's exploitation or the confiscation of the other person's travel or identity documents.
Penalty: Imprisonment for 12 years.
(2A) A person (the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit of another person from Australia; and
(b) the first person deceives the other person about the fact that the other person's exit or proposed exit is for purposes that involve the provision by the other person of sexual services outside Australia or will involve the other person's exploitation or the confiscation of the other person's travel or identity documents.
Penalty: Imprisonment for 12 years.
(2B) A person (the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) there is an arrangement for the other person to provide sexual services in Australia; and
(c) the first person deceives the other person about any of the following:
(i) the nature of the sexual services to be provided;
(ii) the extent to which the other person will be free to leave the place or area where the other person provides sexual services;
(iii) the extent to which the other person will be free to cease providing sexual services;
(iv) the extent to which the other person will be free to leave his or her place of residence;
(v) if there is a debt owed or claimed to be owed by the other person in connection with the arrangement for the other person to provide sexual services--the quantum, or the existence, of the debt owed or claimed to be owed.
Penalty: Imprisonment for 12 years.
(2C) A person (the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit of another person from Australia; and
(b) there is an arrangement for the other person to provide sexual services outside Australia; and
(c) the first person deceives the other person about any of the following:
(i) the nature of the sexual services to be provided;
(ii) the extent to which the other person will be free to leave the place or area where the other person provides sexual services;
(iii) the extent to which the other person will be free to cease providing sexual services;
(iv) the extent to which the other person will be free to leave his or her place of residence;
(v) if there is a debt owed or claimed to be owed by the other person in connection with the arrangement for the other person to provide sexual services--the quantum, or the existence, of the debt owed or claimed to be owed.
Penalty: Imprisonment for 12 years.
(3) Absolute liability applies to paragraphs (1)(c) and (1A)(c).
271.3 Trafficking in persons--aggravated offence
(1) A person (the first person ) commits an aggravated offence of trafficking in persons if the first person commits the offence of trafficking in persons in relation to another person (the victim ) and any of the following applies:
(a) the first person commits the offence intending that the victim will be exploited, either by the first person or another:
(i) if the offence of trafficking in persons is an offence against subsection 271.2(1), (1B), (2) or (2B)--after entry into Australia; or
(ii) if the offence of trafficking in persons is an offence against subsection 271.2(1A), (1C), (2A) or (2C)--after exit from Australia;
(b) the first person, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(c) the first person, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty: Imprisonment for 20 years.
(2) If, on a trial for an offence against this section, the court, or if the trial is before a jury, the jury, is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that he or she is guilty of an offence against section 271.2, it may find the defendant not guilty of the aggravated offence but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.2.
Note: Section 271.2 provides for offences of trafficking in persons.
271.4 Offence of trafficking in children
(1) A person (the first person ) commits an offence of trafficking in children if:
(a) the first person organises or facilitates the entry or proposed entry into Australia, or the receipt in Australia, of another person; and
(b) the other person is under the age of 18; and
(c) in organising or facilitating that entry or proposed entry, or that receipt, the first person:
(i) intends that the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that entry or receipt; or
(ii) is reckless as to whether the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that entry or receipt.
Penalty: Imprisonment for 25 years.
(2) A person (the first person ) commits an offence of trafficking in children if:
(a) the first person organises or facilitates the exit or proposed exit from Australia of another person; and
(b) the other person is under the age of 18; and
(c) in organising or facilitating that exit or proposed exit, the first person:
(i) intends that the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that exit; or
(ii) is reckless as to whether the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that exit.
Penalty: Imprisonment for 25 years.
271.5 Offence of domestic trafficking in persons
(1) A person (the first person ) commits an offence of domestic trafficking in persons if:
(a) the first person organises or facilitates the transportation or proposed transportation of another person from one place in Australia to another place in Australia; and
(b) the first person uses coercion, threat or deception; and
(c) that use of coercion, threat or deception results in the first person obtaining the other person's compliance in respect of that transportation or proposed transportation.
Penalty: Imprisonment for 12 years.
(2) A person (the first person ) commits an offence of domestic trafficking in persons if:
(a) the first person organises or facilitates the transportation or proposed transportation of another person from one place in Australia to another place in Australia; and
(b) in organising or facilitating that transportation or proposed transportation, the first person is reckless as to whether the other person will be exploited, either by the first person or another, after that transportation.
Penalty: Imprisonment for 12 years.
(2A) A person (the first person ) commits an offence of domestic trafficking in persons if:
(a) the first person organises or facilitates the transportation of another person from one place in Australia to another place in Australia; and
(b) the first person deceives the other person about the fact that the transportation, or any arrangements the first person has made for the other person following the transportation, will involve the provision by the other person of sexual services or will involve the other person's exploitation or the confiscation of the other person's travel or identity documents.
Penalty: Imprisonment for 12 years.
(2B) A person (the first person ) commits an offence of domestic trafficking in persons if:
(a) the first person organises or facilitates the transportation of another person from one place in Australia to another place in Australia; and
(b) there is an arrangement for the other person to provide sexual services; and
(c) the first person deceives the other person about any of the following:
(i) the nature of the sexual services to be provided;
(ii) the extent to which the other person will be free to leave the place or area where the other person provides sexual services;
(iii) the extent to which the other person will be free to cease providing sexual services;
(iv) the extent to which the other person will be free to leave his or her place of residence;
(v) if there is a debt owed or claimed to be owed by the other person in connection with the arrangement for the other person to provide sexual services--the quantum, or the existence, of the debt owed or claimed to be owed.
Penalty: Imprisonment for 12 years.
(3) Absolute liability applies to paragraph (1)(c).
271.6 Domestic trafficking in persons--aggravated offence
(1) A person (the first person ) commits an aggravated offence of domestic trafficking in persons if the first person commits the offence of domestic trafficking in persons in relation to another person (the victim ) and any of the following applies:
(a) the first person commits the offence intending that the victim will be exploited, either by the first person or by another, after arrival at the place to which the person has been transported;
(b) the first person, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(c) the first person, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty: Imprisonment for 20 years.
(2) If, on a trial for an offence against this section, the court, or if the trial is before a jury, the jury, is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that he or she is guilty of an offence against section 271.5, it may find the defendant not guilty of the aggravated offence, but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.5.
Note: Section 271.5 provides for offences of domestic trafficking in persons.
271.7 Offence of domestic trafficking in children
A person commits an offence of domestic trafficking in children if:
(a) the first - mentioned person organises or facilitates the transportation of another person from one place in Australia to another place in Australia; and
(b) the other person is under the age of 18; and
(c) in organising or facilitating that transportation, the first - mentioned person:
(i) intends that the other person will be used to provide sexual services or will be otherwise exploited, either by the first - mentioned person or another, during or following the transportation to that other place; or
(ii) is reckless as to whether the other person will be used to provide sexual services or will be otherwise exploited, either by the first - mentioned person or another, during or following the transportation to that other place.
Penalty: Imprisonment for 25 years.
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