Offences Relating to Human Trafficking in Australia

Polarising social media personality Andrew Tate has been detained in Roman over allegations of rape, human trafficking and organised crime. 

Andrew Tate  was arrested and detained with his brother as part of an investigation that began last year, following allegations made by at least 6 women that they were lured on the promise of a genuine loving relationship, only to be forced into making pornography which was then sold online. 

Prosecutors with Romania’s Directorate for the Investigation of Organized Crime and Terrorism said in a translated statement that two Britons and two Romanians were detained for 24 hours as part of the investigation.  

It also said that the women were allegedly subjected to “physical violence and mental coercion through intimidation, constant surveillance, control and invoking alleged debts”

On December 30 authorities made the decision to detain Andrew Tate for another 30 days as they continue their investigations. He is due to face court next week to appeal this extension. 

The offence of human trafficking in Australia

In Australia, human trafficking encompasses a range of offences relating to the exploitation. 

The main offences – slavery, servitude, forced marriage, forced labour and trafficking in persons – are outlined in sections 270 and 271 of the Criminal Code Act of 1995, which is a piece of legislation that applies across the nation and currently under review, ostensibly with a view to ensure ‘justice frameworks continue to support effective disruption, investigation and prosecution outcomes.’

Of course, around the world countries have their own definitions for human trafficking – it is considered a serious offence in many countries, attracting lengthy prison sentences. 

Romania, which has one of the highest rates of human trafficking in the world, has recently amended its criminal code to include tougher penalties for human trafficking offences and is working to implement a wider strategy for prevention and to ensure that victims have access to compensation.  

It is not clear what Andrew Tate has been charged with, nor is it clear, at this stage, which of the group arrested and detained along with Andrew Tate has been accused of rape. 

Misinformation and the presumption of innocence 

There is presently a widespread assumption circulating that it might be Andrew Tate. This has not been confirmed by Romanian authorities.  

The media reports and commentary associating Mr Tate  with rape charges are most likely based on the fact that he was removed as a contestant on Big Brother for attacking a woman, once remarked that he moved to Romania because it was easier to avoid rape charges, and that in rant on Twitter after the arrest of Harvey Weinstein in 2017, Tate suggested that “if women put themselves in a position to be raped, they must bare some responsibility.” 

Previous sexual assault allegations 

New has also recently surfaced from UK Police that Mr Tate was arrested on suspected sexual assault offences in 2015, but British Prosecutors did not pursue the case, and it’s important to bear in mind that he is entitled to the presumption of innocence – especially in circumstances where the charges were withdrawn. 

Since his arrest in December, social media platforms have gone into overdrive – TikTok and Twitter have both already come under fire for allowing the spread of misinformation about the arrest including posts by his followers falsely claiming he had been freed, as well as conspiracy theories saying he had been set up. 

Influence of social media on a fair trial

MrTate’s popularity and polarising views means that the story of his arrest is unlikely to go away quickly, and social media platforms must acknowledge their power to influence and quickly disseminate information along with their associated responsibility to manage this information in the coming weeks and months to ensure that posts and commentary don’t hinder the investigative process, or subsequent legal proceedings. 

The Offence of Human Trafficking in Australia

Trafficking in persons is an offence under section 271.2 of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of 12 years in prison.

There are a number of discrete offences under the section, which are:

Trafficking in persons – entry to Australia

Section 271.2(1) states that a 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.

Trafficking in persons – exit from Australia

Section 271.2(1A) states that a person commits an offence of trafficking in persons if:

(a)  the person organises or facilitates the exit or proposed exit of another person from Australia; and

(b)  the person uses coercion, threat or deception; and

(c)  that use of coercion, threat or deception results in the person obtaining the other person’s compliance in respect of that exit or proposed exit.

Trafficking in persons – entry to Australia – reckless as to exploitation

Section 271.2(1B) states that a person commits an offence of trafficking in persons if:

(a)  the 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 person is reckless as to whether the other person will be exploited, either by the person or another, after that entry or receipt.

Trafficking in persons – exit from Australia – reckless as to exploitation

Section 271.2(1C) states that a person commits an offence of trafficking in persons if:

(a)  the 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 person is reckless as to whether the other person will be exploited, either by the person or another, after that exit.

Trafficking in persons – entry into Australia – deception as to sexual services or exploitation, or confiscation of documents

 Section 271.2 states that a person commits an offence of trafficking in persons if:

(a)  the person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and

(b)  the 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.

Trafficking in persons – exit from Australia – deception as to sexual services or exploitation, or confiscation of documents

Section 271.2(2A) states that a person commits an offence of trafficking in persons if:

(a)  the person organises or facilitates the exit or proposed exit of another person from Australia; and

(b)  the 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.

Trafficking in persons – entry into Australia – arrangement for sexual services by deception etc

 Section 271.2(2B) states that a person commits an offence of trafficking in persons if:

(a)  the 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 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.

Trafficking in persons – exit from Australia – arrangement for sexual services by deception etc

Section 271.1(2C) states a person commits an offence of trafficking in persons if:

(a)  the 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 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.

Definitions

The following definitions apply for the purposes of human trafficking offences:

‘Exploitation’ is conduct causing the victim to enter into slavery, or a condition similar to slavery, servitude, forced labour, forced marriage or debt bondage.

‘Deceive’ means to mislead as to fact – including the intention of any person – or as to law, by words or other conduct.

‘Coercion’ includes   force, duress, detention, psychological oppression, abuse of power or taking advantage of a person’s vulnerability.

To ‘confiscate’ means to take possession of, whether permanently or temporarily, or to destroy.