Trafficking in Person – Entry into Australia With Recklessness as to Exploitation

Trafficking in persons – entry into Australia with recklessness as to exploitation is an offence under section 271.2(1B) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 12 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You organised or facilitated the entry, or proposed entry, or the receipt of another person into Australia, and
2. You were reckless as to whether the other person would be exploited as a result.

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

‘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.

‘Servitude’ is the condition of a person who provides labour or services if, because of the use of coercion, threat or deception:

1. A reasonable person would not consider himself or herself to be free to:

(a) cease providing the labour or services; or

(b) leave the place or area where he or she provides the labour or services, and

2. The person is significantly deprived of personal freedom in respect of aspects of life other than the provision of the labour or services.

‘Forced labour’ is the condition of a person who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person would not consider himself or herself to be free to:

(a) cease providing the labour or services; or

(b) leave the place or area where he or she provides the labour or services

A marriage is ‘forced’ if:

1. Either party entered it without freely and fully consenting due to:

(a) the use of coercion, a threat or deception, or

(b) a party being incapable of understanding the marriage’s nature and effect, or

(c) either party being under the age of 16 years.

‘Debt bondage’ is the condition of a person where:

1. The condition arises from a pledge:

(a) by the person for personal services, or

(b) by another person of the personal services of the person, and the person is under the other person’s control; or

(c) by person of the personal services of another person who is under the person’s control; and

2. The pledge is made as security for a debt owed, or claimed to be owed, including any debt incurred, or claimed to be incurred, after the pledge is given by the person making the pledge, and
3. Either:

(a) the debt owed, or claimed to be owed, is manifestly excessive

(b) the reasonable value of services is not applied toward the liquidation of the debt or purported debt, or

(c) the length and nature of services is not limited and defined

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

A ‘threat’ includes that of any detrimental action unless there are reasonable grounds for that action in connection with the provision of labour or services by the other person.

The threat may be express or implied, conditional or unconditional.

‘Deception’ means to mislead as to fact, including as to the intention of any person, or as to law, and can occur by words or other conduct.

Defences to the charge include:

1. Duress
2. Self-defence, and
3. Necessity.