Human Trafficking Offences in Australia: More Common Than Some May Think

In September 2014, a 52-year old Victorian father travelled with his wife and children to Sudan ostensibly for a holiday, before taking his wife’s passport and returning to Australia with the couple’s children but without her.

He then took steps to have her Australian visa revoked. It would take 16 months for the woman to finally obtain a temporary visa and return to Australia in February 2016.

The separation from her children and the ordeal of being left stranded caused the woman to be “grief stricken” and suffer “immense physical pain and agony”.

The man was charged with ‘exit trafficking’ and his matter ultimately proceeded to trial in the Victorian County Court, where the jury ultimately found him guilty in April 2024.

And just last week, the man was sentenced to a full term of four and a half years in prison.

This is believed to be the first conviction for human trafficking in Victoria, although it is certainly not the first in Australia and many cases are currently going through the courts.

In fact, the Australian Federal Police asserts that offences of human trafficking are more prevalent than many might believe, although authorities also believe these offences are chronically underreported.

Prevalence of Human Trafficking

Human trafficking offences are contained in the Criminal Code Act 1995, which is a piece of Commonwealth legislation which applies across the nation.

There have been 35 reported incidents of exit trafficking from Australia in the last year alone, with other cases of extreme human exploitation — such as slavery, servitude, and entry trafficking — said to be even more prevalent.

It is also estimated that less than 25% of human trafficking cases are reported in Australia.

But what qualifies as human trafficking? And what are the offences, defences and penalties for these offences in Australia?

Human Trafficking Offences in Australia

Human trafficking offences in Australia encapsulate a range of conduct, including that which involves moving people across a border for specific exploitative purposes. It also involves such conduct that occurs within the country.

Human trafficking exploits a victim, taking advantage of someone’s vulnerability, whether in terms of physical ability, age, financial state, or other means, and controlling them into doing something. Although the government and society recognise the prevalence of trafficking within Australia, it is often underreported and thought of as ‘less common’ than in other nearby Asian countries, such as Thailand or the Philippines.

But, just because our ‘first world’ society makes it more difficult to believe this problem is prevalent in our country, it doesn’t mean it doesn’t happen. Human trafficking involves moving people in and out of the country; slavery, where a person exhibits control and ownership over another person; control over women in the sex industry; and forced marriage — all of which are severe criminal offences.

Trafficking in Persons

Trafficking in persons is an offence under section 271.2 of the Criminal Code Act 1995 whereby the prosecution must prove beyond reasonable doubt that:

1. A person facilitated the entry of another person into Australia,
2. The person used coercion, deception, or threat to do so, and
3. The person’s coercion, deception, or threat resulted in the other person’s compliance and entering Australia.

Other forms of trafficking in persons include trafficking in persons exit from Australia in section 272.2(1A) of the Criminal Code Act 1995, trafficking in persons entry into Australia with recklessness as to exploitation as explained in section 271.2(1B), and trafficking in persons entry into Australia with deception as to sexual services, exploitation or confiscation under section 271.2(2) of the Criminal Code Act 1995.

All of the trafficking in person charges result in a maximum prison sentence of 12 years.

Aggravated trafficking in persons charges have a maximum of 20 years imprisonment according to section 271.3.

Legal Defences

Like all human trafficking offences, the legal defences that apply include duress, self-defence and sudden or extraordinary emergency.

In the event the defendant is able to raise evidence of a legal defence, the onus then shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply to the facts of the case.

The defendant is entitled to an acquittal if the prosecution is unable to do this.

Forced Labour

Forced labour occurs when a victim is forced to provide labour or services through deception, coercion, or threat.

According to section 270.6A of the Criminal Code Act 1995, a person commits the offence of ‘causing a person to enter or remain in forced labour’ if they:

1. Engage in conduct, and
2. The conduct causes another person to enter or remain in forced labour.

Furthermore, a person commits the offence of ‘conducting a business involving forced labour’ if they a) conduct business, and b) the business involves the forced labour of another person(s).

The maximum penalty for aggravated forced labour is 12 years imprisonment and 9 years imprisonment for non-aggravated labour.

The Australian Federal Police noted over 40 reports of forced labour between 1 July 2021 and 30 June 2022, indicating the high prevalence of this offence in areas such as domestic work, processing, hospitality, agriculture, and construction. Forced labour is prevalent in domestic industries, where the government offers little support to victims — a study showed that women are at a high risk of being trafficked into domestic servitude due to deception during recruitment, exploitation, and coercion.

Forced Marriage

According to section 270.7B of Crimes Act 1995, a ‘forced marriage’ occurs if a) either party to the marriage entered without freely and fully consenting due to coercion, threat, deception, or inability to understand the nature of the ceremony, and b) the victim was under 16 at the time of the forced marriage.

A person is guilty of ‘causing a person to enter into a forced marriage’ if a) they engage in conduct, and b) the conduct causes another person to enter into a forced marriage as the victim of the marriage.

A person can also be found guilty of ‘being a party to a forced marriage’ if:

1. The person is a party to the marriage.
2. The marriage is a forced marriage.
3. The person is not a victim of the forced marriage.

An aggravated offence carries a maximum prison sentence of 9 years, and a non-aggravated offence carries a maximum imprisonment term of 7 years.

Despite not being widely recognised as an issue in Australia, the extensiveness of forced marriage in the country cannot be understated. Since March 2013, the number of investigations related to forced marriage has continually increased, with there being nearly 70 referrals for forced marriage offences in 2015-16 alone.

Furthermore, the current framework and legislation outlined in the country do not do enough to recognise the offence, or help the victims, of forced marriage. The government must extend protection orders for victims of forced marriage to people over 18 years old, provide more funding for non-government organisation programs, offer accessible education for at-risk communities, and educate the country on the social determinants of the practice.

Lastly, the number of forced marriages is increasing — not decreasing — despite government legislation doing ‘all they can’ to help the problem growing in Australia. The number of reports has increased drastically in the last decade, with more than 50% of the reports involving children under 18.

Servitude

According to section 270.5 of the Criminal Code Act 1995, ‘servitude’ is when a victim provides labour or services as the result of coercion, threat, or deception, and the person cannot be free unless they cease to provide the labour or services or leave.

A person is guilty of ‘causing a person to enter or remain in servitude’ if they engage in conduct that causes another person to remain in servitude, resulting in a maximum imprisonment of 20 years for an aggravated offence or 15 years for any other case.

Well-known sexual servitude cases have rocked the Australian public over the years. Queen v Wei Tang (2008) documented an instance in which women were ‘objects’ of purchase; they were used in any manner required for the duration of their contracts and did not receive commensurate compensation.

Another famous case in Australia involved the 2021 case of a Queensland man charged with sexual servitude offences after capturing and holding women and children in servitude conditions and forcing them to partake in sex acts and sex work.

Slavery

According to section 270.3 in the Criminal Code Act 1995, ‘slavery’ is defined as the condition of a person over whom all of the powers attaching to the right of ownership are exercised. Slavery is unlawful, despite the government overturning the Criminal Code Amendment Act 1999 of Imperial Acts.

A person is guilty of slavery offences if they:

1. Reduce a person to slavery,
2. Possess a slave,
3. Engage in slave trading,
4. Enter into a transaction involving a slave, or
5. Exercise control or direction over, or finances, any act of slave trading or commercial transaction involving a slave.

The maximum penalty is 25 years imprisonment.

Accused of a Human Trafficking Offence?

If you or someone close to you has been accused of a human trafficking offence, contact Sydney Criminal Lawyers for expert legal advice and formidable legal representation from a vastly experienced, specialist criminal defence team.