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Beyond Wei Tang: Do Australia’s human trafficking laws fully reflect Australia’s international human rights obligations?

Speech to the Workshop on Legal and Criminal Justice Responses to Trafficking in Persons in Australia: Obstacles, Opportunities and Best Practice

Elizabeth Broderick
Sex Discrimination Commissioner and Commissioner responsible for Age Discrimination

9 November 2009

 

  1. I would like to pay my respects to the Wurundjeri people, the traditional owners of the land on which we meet today and acknowledge the wonderful work of Julie and Sue for bringing together the distinguished judges, prosecutors, academics, government departments and others working for justice for trafficking victims at this important conference today.

  2. The Commission has been very pleased and proud to support the work of Julie and others under the Australian Research Linkage Grant. I am here today very much to learn so I will make some introductory remarks and then hand over to my colleague, Bronwyn Byrnes to make some observations on the legal framework.

  3. During my time as Sex Discrimination Commissioner, I have met several women who have been trafficked into Australia. I have heard directly from them about their experiences and their pain.

  4. Common to all trafficking scenarios is the use of force, fraud, or coercion to exploit a person for profit. Traffickers subject victims to labour exploitation, sexual exploitation, or both.[1]

  5. Human trafficking always involves an abuse of human rights. As Anne Gallagher notes

    there is an inescapable link between trafficking and international human rights law, trafficking goes to the very heart of what human rights law is trying to prevent.[2]

  6. The human rights that may be engaged by human trafficking include the right to liberty, [3] human dignity, [4] equality[5] and specifically the right not to be held in slavery or involuntary servitude.[6] Further, the exploitive practices of human trafficking disproportionately impact on individuals vulnerable to sex and race based discrimination.

  7. It is for this reason that the Australian Human Rights Commission has sought to contribute to the combined efforts to combat human trafficking in Australia and ensure that Australia’s response to human trafficking follows a human rights based approach.

  8. The Australian Human Rights Commission has worked together with NGOs in the field to participate in a national roundtable on people trafficking, develop Guidelines for NGOs Working with Trafficked People, and made recommendations for reforms to the visa framework.

  9. These are exciting times. There has been significant progress in this area – the changes to the visa framework mark an incorporation of a more human rights based approach running alongside a strong criminal justice response.

  10. The Commission has also taken an interest in the response of our criminal law to these issues. As many of you would know, the Commission intervened in the High Court case of The Queen v Tang (Wei Tang)[7]to assist the court interpret the meaning of slavery in contemporary Australia. Bronwyn will talk more about this soon.

  11. While reliable statistics for trafficking remain elusive,[8] the number of prosecutions and convictions of trafficking offenders worldwide is considered to be low’.[9]

  12. As Albert Moskowitz of the Asia Regional Trafficking in Persons project states that

    while recognising the difficulty in compiling accurate and reliable statistics, there can be little doubt that under any reasonable estimate of the trafficking problem, the number of prosecutions and convictions of traffickers worldwide has been mostly insufficient to deter criminals and to secure justice for trafficking victims.[10]

  13. The reported case law in Australia is still very limited.[11] A considerable number of cases have been dismissed due to lack of evidence or have been appealed to higher courts.[12] The recent NSW Criminal Court of Appeal case of McIvor[13] is yet another example of this.

  14. We know that in Australia, the cases of human trafficking for sexual purposes are not straight forward and do not necessarily conform to traditional stereotypes.[14]

  15. Suspected victims of trafficking and slavery may not be kept under lock and key, ‘kidnapped from their home villages, held at gunpoint or chained to beds’. Instead they may be effectively controlled through the confiscation of travel documents, threats of violence, fear of being reported to authorities and social, cultural and physical isolation.[15]

  16. Anne has just outlined the key features of an effective legal and criminal justice response to human trafficking. A critical feature of this package is a strong national legal framework.

  17. The UN Recommended Principles and Guidelines on Human Rights and Human Trafficking has reported that the lack of adequate legislation on trafficking at the national level has been identified as one of the major obstacles in the fight against trafficking.[16]

  18. The Guidelines identify several elements of a strong national legal framework, including: [17]

    1. It must go beyond the crime of trafficking to ensure comprehensive criminalization of crimes relating to trafficking, such as forced labour, forced marriage and exploitation of labour[18]; and

    2. It must include appropriate penalties in accordance with international standards. This means that the gravity of the crime should be reflected in ‘effective, proportionate and dissuasive sanctions’.

  19. Wherever possible, the national legal framework should reflect international best practice and be consistent with Australia’s international legal obligations. This is because trafficking laws that comply with minimum international standards provide an important foundation for cooperation between countries in the prosecution of trafficking cases.[19]

  20. I am going to leave Bronwyn to examine the international framework for prohibiting human trafficking, slavery and forced labour and to make some initial observations on the extent to which Australia’s human trafficking laws fully reflect these.

  21. A full review of these laws, as called for by Anti-Slavery, may be timely in 2010 – 5 years after the introduction of the trafficking in person offences into Australia’s Criminal Code and Australia’s ratification of the Trafficking Protocol.

  22. This would also act upon the Parliamentary Joint Committee on the Australian Crime Commission’s recommendation that the trafficking offences introduced into the Criminal Code in 2005 be reviewed one year after implementation.[20]

  23. In the meantime, it is critical that our criminal justice response goes hand in hand with a human rights based approach. This will require all of us to have a full awareness of relevant international law and to continue to work together.

  24. I’m going to hand over to Bronwyn now to examine Australia’s human trafficking laws and the international framework.

Bronwyn Byrnes

1 Introduction

  1. Liz, thank you for setting the scene for my examination of Australia’s human trafficking and related laws.

  2. Before I begin, I would like to mention upfront that in preparing for this presentation, I have had the benefit of reading a draft paper by Frances Simmons and Associate Professor Jennifer Burn called ‘Evaluating Australia’s Response to Trafficking: Towards Rights-Centred Reform’. I believe this paper will be published shortly.

  3. In Wei Tang, the Commission submitted and the High Court confirmed that the definition of ‘slavery’ in the Criminal Code should be read with reference to the international covenants the Criminal Code offence of slavery sought to implement – namely, the 1926 Slavery Convention and Supplementary Convention.[21]

  4. Moving beyond Wei Tang and the case of slavery, today I’d like to consider:

    • some of the implications of Wei Tang in the broader context of human trafficking; and

    • the extent to which the definitions of Australia’s other trafficking related offences comprehensively reflect Australia’s international legal obligations in this area.

2 Implications of Wei Tang

  1. The High Court’s decision in Wei Tang recently affirmed in the New South Wales Court of Criminal Appeal case of McIvor[22] has three major implications for human trafficking more broadly.

  2. First, the High Court accepted that more subtle forms of control and possession rather than physical threats and force can be used to establish ‘slavery’ under the Criminal Code.

  3. This is important in the Australian context given most of the cases of human trafficking for sexual purposes so far have not matched community stereotypes of ‘slavery’ of ‘sex slavery’.

  4. Secondly, the decision is significant for bringing the definition of ‘slavery’ in Australian law broadly into line with the definition of ‘slavery’ under international law.

  5. Thirdly, the case highlights the need to interpret the definition of terms like ‘slavery’ in Australia’s Criminal Code consistently with international law.[23]

  6. Where possible, all of the definitions used in Australia’s trafficking and related offences should be interpreted, with reference to the international instruments that define and prohibit trafficking, slavery and forced labour.[24]

  7. This is supported by the common law interpretative principle that, subject to any contrary intention expressed by the legislature, legislation that implements Australia’s obligations under an international convention should be interpreted using the same interpretative principles that apply to that convention.[25]

  8. This means that the closer the definitions of human trafficking and related offences in Australia’s Criminal Code are to the definitions used at international law, the more likely it is that prosecutors and judges will be able to have recourse to international jurisprudence when interpreting the Criminal Code definitions.

  9. The Commission is of the view that Australia’s international human rights obligations will also be relevant in particular cases[26] - particularly if the Government implements the national consultation committee’s recommendation to adopt a federal Human Rights Act.

3 Human trafficking

  1. So now that the decision in Wei Tang has generally brought the definition of slavery into line with the definition of slavery at international law, let’s consider whether other aspects of Australia’s criminal justice response to human trafficking fully reflect Australia’s international obligations.

3.1 Outline of international framework

  1. Given the high level of expertise in the room today, I am going to assume that most of you are fairly familiar with the terms of the Trafficking Protocol and Australia’s human trafficking and related offences in the Criminal Code. You should also have a hand out I prepared in front of you that provides a good summary of these.

  2. I will spend just a few moments framing our discussion today by pointing to the key definitions.

Article 3 of the Trafficking Protocol

  1. An action: the recruitment, transfer, harbouring, receipt of persons
  2. By means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power, abuse of position of vulnerability, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person
  3. For the purpose of exploitation: the exploitation of the prostitution of others, sexual exploitation, forced labour, slavery and slavery like practices, servitude, removal of organs.

 

3.2 Outline of Australia’s human trafficking and related laws

  1. In addition to the slavery offence considered in the case of Wei Tang, Australia’s human trafficking related laws include all the laws set out in your hand out – including, sexual servitude, debt bondage, and 8 different trafficking in persons offences.

Federal human trafficking related offences

  • Sexual servitude carrying a maximum penalty of 15 years (20 years for an aggravated offence);
  • Deceptive recruiting carrying a maximum penalty of 7 years (9 years for an aggravated offence);
  • 8 different trafficking in persons offences as well as domestic trafficking, [27] carrying a maximum penalty of 12 years imprisonment;[28]
  • An aggravated offence of trafficking in persons, including domestic trafficking, with a maximum penalty of 20 years imprisonment;[29]
  • Trafficking in children;[30]
  • Debt bondage carrying a maximum penalty of 12 years imprisonment[31] and an aggravated offence of debt bondage;[32]
  • Employers can also be prosecuted under the Migration Act 1958 for knowingly or recklessly employing an illegal worker ( maximum penalty of 2 years and 5 years where exploitation occurs);[33]
  • A range of civil offences can also play a role including, workplace relations laws and tort laws such as false imprisonment as well as discrimination and vilification laws.

  1. An immediate observation is the slighter sentence for the offence of debt bondage. The Bill’s Explanatory Memorandum states that the offence of debt bondage was given a slighter sentence to provide a lower-order offence that was not indictable and would not require a jury to determine it. The EM states that:

    the debt bondage offence provides an alternative in cases where it may be difficult to prove the commission of one of the more serious offences.[34]

  2. The Bill’s Explanatory Memorandum also makes it clear that the lesser sentence reflects the relative seriousness of the offence. It may be time to reconsider the merits of the offence of debt bondage being cast as the lower order offence where this is a key means of exploitation used in human trafficking cases in Australia.[35]

  3. Alternatively, it may be time to consider whether other human trafficking related offences should fill the stark gap between the aggravated trafficking offences and slavery offences carrying a maximum possible sentence of 20 years, the trafficking offences carrying a maximum possible sentence of 12 years and the debt bondage offence carrying a maximum possible sentence of 12 months.

  4. To drill down into a little more detail, I would like to look more closely at the trafficking in person offences in s 271.2 of the Criminal Code, which can be summarised as follows.

Summary of s 271.2 of the Criminal Code

  • the first person uses force or threats to obtain the other person’s compliance; or
  • the first person is reckless as to whether the other person will be exploited by them or another; or
  • the first person deceives the other person about the fact that the other person’s entry or exit will involve the provision of sexual services, exploitation, debt bondage or the confiscation of the other person’s travel identity; or
  • There is an arrangement for the other person to provide sexual services and the first person deceives the other person about certain things, such as 1) the nature of the services to be provided; 2) the amount or existence of any debt owed or claimed to be owed; and 3) the extent of specific freedoms such as: a) the extent to which the person will be free to leave the place where he or she resides or provides sexual services; and b) the extent to which the other person will be free to cease providing sexual services.

Exploitation occurs where the victim is caused to enter into ‘slavery’; ‘forced labour’, ‘sexual servitude’ or an organ is removed.

 

3.3 Analysis of Australia’s human trafficking and related laws

  1. This is a complex definition.[36] Some have described the offences as ‘convoluted’.[37] The sheer number of possible variations is certainly mind boggling.

  2. Today, I would like to discuss just 3 examples of where the Criminal Code departs from the terminology of the Trafficking Protocol to prompt a further discussion among workshop participants:

    1. Consent

    2. Other means; and

    3. Exploitation -particularly the cases of forced marriage and forced labour.

(a) Consent
  1. First, Unlike the Trafficking Protocol, the trafficking in person offences do not explicitly state that consent is irrelevant where means such as force or coercion are used.[38]
  2. Given that cases in Australia have tended to involve more subtle forms of coercion and control where victims may be aware they are entering the sex industry and may have an apparent degree of freedom, it has been noted that the silence on this point in the Criminal Code may not assist juries considering these cases.[39]
  3. Fiona David has reported that Prosecutors note it can be helpful to go ‘back to basics’ in court by referring to the definition of trafficking in the Trafficking Protocol. The Protocol is clear that ‘consent’ is nullified when the trafficking situation has involved deception, coercion or other means.[40]
  4. While the irrelevance of ‘consent’ may be implicit in the trafficking in person offences in the Criminal Code, there is a case for amending the Criminal Code itself to make this abundantly clear.
(b) Other means
  1. Second, the trafficking in persons offences in the Criminal Code do not explicitly include trafficking which occurs by ‘means’ of:

    1. other forms of coercion;

    2. the abuse of power or of a position of vulnerability; or

    3. the giving or receiving of payments or benefits to achieve the consent of a person having control over another person,

    despite these being means of trafficking expressly included in the Trafficking Protocol.[41]

  2. UNODC Model Law Against Trafficking in Persons recommends that laws criminalizing trafficking specifically define the ‘abuse of a position of vulnerability’ as referring to any situation in which the person involved believes he or she has no real or acceptable alternative but to submit or taking advantage of the vulnerable position a person is placed in. It makes mention of a range of a relevant factors including (but not limited to):

    1. having entered a country illegally or without proper documentation;

    2. reduced capacity to form judgments by virtue of being a child, illness , infirmity or a physical disability, pregnancy;

    3. promises or giving of sums of money or other advantages to those having authority over a person;

    4. or being in a precarious position from the standpoint of social survival.[42]

  1. The UNODC Model Law against Trafficking in Persons recommends that the full list of means set out in the Trafficking Protocol should be included in national legislation.[43] It alternatively notes that some national legislation leaves out the element of means entirely, recognising that some forms of exploitation are coercive by nature.[44]

  2. The Australian trafficking in person offences can be described as doing both – sort of. It includes only a limited list of means, namely only force, threats and deception.[45]However, where force and threats are established, there is no need to also establish exploitation.[47]

  3. One of the scenarios does rely on recklessness[48] as to exploitation.[49] However, this will only be relevant where exploitation, as defined by the Criminal Code, is also established. I will speak about how the definition of exploitation is also limited in the Criminal Code next.

(c) Exploitation
  1. So finally, let’s now take a closer look at how the Criminal Code deals with the element of exploitation.
(i) Forced marriage

  1. First, the definition of ‘exploitation’ in the ‘trafficking in person’ offences in the Criminal Code does not expressly include debt bondage, serfdom, or servile marriage, including forced marriage.[50]

  2. All of these practices are defined by Article 1 of the Supplementary Convention to be ‘institutions or practice similar to slavery’. The Trafficking Protocol defines exploitation at a minimum, to include practices similar to slavery.

  3. I should point out that debt bondage is referred to separately in the trafficking offences in s 271.2(2) and (2A) of the Criminal Code and is also a separate offence under s 271.8 of the Criminal Code.

  4. While it is at least arguable that forced marriage is a form of sexual servitude,[51] it is not clear whether all cases of trafficking in persons that include forced marriage may be able to be prosecuted under the trafficking in persons offences in the Criminal Code.[52]

  5. For the sake of clarity and certainty, it would be preferable to include all forms of exploitation covered by the Trafficking Protocol as distinct elements of Australia’s trafficking in person offences.[53]

(ii) Forced labour

  1. While time does not permit me to go into any detailed analysis today, it is also noteworthy that not all forms of exploitation referred to in the Trafficking Protocol are criminalised separately in the Criminal Code.

  2. While ‘forced labour’ is expressly included as a form of exploitation for the purposes of the trafficking in person offences, there is no stand alone criminal offence of forced labour in the Criminal Code.

  3. Australia has an obligation under the ILO Convention 1930 to ‘suppress’ forced labour.[54] Further, the International Covenant on Economic, Social and Cultural Rights protects the right to freely choose one’s work.[55]

  4. Criminalising trafficking that involves forced labour and not criminalising forced labour itself plays to Hathaway’s criticisms of States’ responses to trafficking that trafficking is concerned only with a form of dealing that leads to exploitation and not exploitation itself.[56]

  5. I note that the case of case of Fryer v Yoga Tandoori House Pty Limited,[57] demonstrates that the Fair Work Act 2009 and other Acts carrying civil penalties make aspects of forced labour cases unlawful in Australia.

  6. While this is important because it provides an alternative means for victims of trafficking to access to compensation, it should be noted that according to the ILO, ‘forced labour or services’ is not the same as unlawful or poor working conditions – forced labour represents a severe violation of human rights and restriction on freedom.[58] Thought should be given to whether the penalties imposed under the Fair Work Act will be sufficient to deter in the longer term.

  7. Further, depending on the facts of the case, some cases of forced labour may fall within the definition of ‘slavery’. [59] However, it seems inadequate to have to bring cases of ‘forced labour’ under the definition of ‘slavery’ in the Criminal Code given the concepts are apparently distinct at international law.[60]

  8. The concepts are also distinct in the definition of exploitation in the trafficking in persons offences in the Criminal Code.

  9. This kind of approach is also susceptible to former Chief Justice Gleeson’s warning in Wei Tang not to banalise the definition of slavery.

  10. I should also point out that the definition of ‘forced labour’ in the Criminal Code appears narrower than the definition of ‘forced labour’ set out in the ILO Convention 1930 referring only to ‘force and threats’ to found the requisite involuntariness rather than ‘the threat of any menace or penalty’.

Definition of Forced labour

‘Forced or compulsory labour’ is defined by Article 2 of the ILO Forced Labour Convention of 1930 as ‘all work or service which is exacted from any person under the menace of any penalty, and for which the said person has not offered himself voluntarily.

‘Forced labour’ is defined in the Criminal Code to mean:

‘The condition of a person who provides labour or services (other than sexual services) and who, because of the use of force or threats: a) is not free to cease providing labour or services; or b) is not free to leave the place or area where the person provides labour or services.

 

4 Conclusions

  1. So in conclusion, the case of Wei Tang demonstrates the need to interpret the definitions of terms like ‘slavery’, trafficking in persons’ and ‘forced labour’ in the Criminal Code consistently with international law, where possible.

  2. While time does not permit me to go into a detailed analysis of Australia’s human trafficking and related laws today, the 3 examples I have just highlighted show that Australia’s human trafficking and related laws are complicated, and may not comprehensively reflect the full suite of Australia’s international legal obligations in this area.

  3. Some of the definitional differences in the Criminal Code may pose obstacles to prosecuting and judging cases that fall within the definition of ‘trafficking’ in the Trafficking Protocol and may have the potential to limit international cooperation critical to gathering evidence to prosecute trafficking cases.

  4. The Australian Criminal Code should comprehensively cover all aspects of the definition of trafficking in the Trafficking Protocol. Given Australia is a destination country for Trafficking where the exploitation takes place, it is important that the Criminal Code also criminalises all aspects of exploitation that result from human trafficking referred to in the international definition of trafficking and defined in other international instruments.[61]

  5. This means going back to the Trafficking Protocol and other international instruments that define the components of trafficking to see how the Criminal Code reflects these definitions when prosecuting and judging cases of human trafficking.

  6. The case for amending the Criminal Code so that it more fully reflects Australia’s obligations under the Trafficking Protocol and other related international instruments should also be considered.

  7. For example, should the Criminal Code clearly and comprehensively define ‘exploitation’ to include forced marriage? Shouldn’t all forms of exploitation involved in human trafficking cases also be separately criminalised? This includes examining the case for a separate forced labour offence, as recommended by Anti-Slavery.

  8. In recognition of the fact that the cases in Australia do not fit the traditional stereotype, shouldn’t the Australian Criminal Code be as clear as possible that consent is not a defence to trafficking crimes and that other more subtle means of coercion and manipulation are involved in human trafficking?

  9. The Commission supports Anti-Slavery’s call for a review of these laws to ensure Australia’s human trafficking laws fully reflect Australia’s international obligations in this area.[62]

  10. In the meantime, prosecutors and judges should be fully aware of the international instruments that define these concepts as well as the growing body of international jurisprudence relevant to understanding the concepts of human trafficking, slavery and forced labour.

[1] US State, Trafficking in Persons Report 2009, 7. See: http://www.state.gov/documents/organization/123357.pdf, (viewed 28 October 2009).
[2] See A Gallagher, ‘Using International Human Rights Law to Better Protect Victims of Human Trafficking: The Prohibitions on Slavery, Servitude Forced Labour and Debt Bondage’ in L Sadat & M Scharf (eds), The theory and practice of international criminal law: essays in honour of M. Cherif Bassiouni (2008), 26.
[3] Article 9 of the ICCPR.
[4] Article 7 of the ICCPR.
[5] Article 2 and 26 of the ICCPR.
[6] Article 8 of the ICCPR.
[7] Queen v Tang [2008] HCA 39.
[8] United Nations Office on Drugs and Crime, Trafficking in Persons, Global Patterns, (2006), 43 and United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons, (2009), 18.
[9] Albert Moskowitz, ‘Challenges and Priorities in Prosecuting and Adjudicating TIP Cases’, (2008), See: http://www.artipproject.org/artip-project/documents/Paper_J&P-Challenges-TIP_22Oct08_fnl.pdf (viewed 27 October 2009).
[10] Albert Moskowitz, ‘Challenges and Priorities in Prosecuting and Adjudicating TIP Cases’, (2008), 4. See: http://www.artipproject.org/artip-project/documents/Paper_J&P-Challenges-TIP_22Oct08_fnl.pdf (viewed 27 October 2009). See also Anne Gallagher and Paul Holmes, ‘Developing an effective criminal justice response to human trafficking: lessons from the front line’, (2008), 18 (3) International Criminal Justice Review, 318, 320.
[11] Andreas Scholenhardt, Genevieve Beirne and Toby Corsbie, ‘Human Trafficking and Sexual Servitude in Australia’ (2009), 32(1) UNSW Law Journal, 27.
[12] Andreas Scholenhardt, Genevieve Beirne and Toby Corsbie, ‘Human Trafficking and Sexual Servitude in Australia’ (2009), 32(1) UNSW Law Journal, 27, 39. See also, Fiona David, ‘Trafficking of women for sexual purposes’ (2008).
[13] McIvor v R; Tanuchit v R [2009] NSWCCA 264.
[14] See FaHCSIA, ‘Trafficking of women for sexual purposes: Research and Public Policy Series – No. 95’, 8 April 2009, http://www.fahcsia.gov.au/sa/women/pubs/violence/traffic_women/Pages/default.aspx, (viewed 28 October 2009). See also Anne Gallagher, Prosecuting and Adjudicating Trafficking in Persons Cases in Australia: Obstacles and Opportunities, Speech delivered at the National Judicial College of Australia Twilight Seminar on Human Trafficking, State Library of New South Wales, Sydney, 15 June 2009, Fiona David, ‘Trafficking for Sexual Purposes’, Australian Institute of Criminology, Research and Public Policy Series, no 95, 39; see also Fiona David, ‘Prosecuting trafficking in persons: known issues, emerging response’, Australian Institute for Criminology, Trends and Issues in Criminal Justice, no.358, June 2008. In the international context see David Weissbrodt and Anti-Slavery International, Abolishing Slavery and its Contemporary Forms, Office of the United Nations High Commissioner for Human Rights, 2002, 7 [22]
[15] Fiona David, ‘Trafficking for Sexual Purposes’, Australian Institute of Criminology, Research and Public Policy Series, no 95, 39; see also Fiona David, ‘Prosecuting trafficking in persons: known issues, emerging response’, Australian Institute for Criminology, Trends and Issues in Criminal Justice, no.358, June 2008.
[16] United Nations Recommended Principles and Guidelines on Human Rights and Human Trafficking, Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council (United Nations E/2002/68/Add.1) May 20, 2002, Guideline 4, 8.
[17] United Nations Recommended Principles and Guidelines on Human Rights and Human Trafficking, Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council (United Nations E/2002/68/Add.1) May 20, 2002. See also: ‘Trafficking in Persons and the Criminal Justice Sector’, Asia Regional Trafficking in Persons Project, see: http://www.artipproject.org/atrip-tip-cjs/cjr-effective.html, (viewed 27 October 2009).
[18] Related crimes also include: child labour, sexual exploitation, illegal recruitment, involvement in organized crime and money laundering.
[19]See: Anne Gallagher and Paul Holmes, ‘Developing an effective criminal justice response to human trafficking: lessons from the front line’, (2008), 18 (3) International Criminal Justice Review, 318, 323.
See further: ASEAN TIP Practitioner Guidelines as endorsed 0607, appendix to Albert Moskowitz, ‘Challenges and Priorities in Prosecuting and Adjudicating TIP Cases’, (2008), http://www.artipproject.org/artip-project/documents/Paper_J&P-Challenges-TIP_22Oct08_fnl.pdf (viewed 27 October 2009). See also: United Nations Recommended Principles and Guidelines on Human Rights and Human Trafficking, Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council (United Nations E/2002/68/Add.1) May 20, 2002, Guideline 4, 8.
[20] It is noted that the Parliamentary Joint Committee on the Australian Crime Commission recommended a review of the trafficking offences introduced into the Criminal Code in 2005 one year after its implementation. See: Parliamentary Joint Committee on the Australian Crime Commission, Supplementary report to the Inquiry into the trafficking of women for sexual servitude, August 2005, 7.
[21] See HREOC Submissions in support of Application for Leave to Intervene and Submissions on the Appeal and also Queen v Tang [2008] HCA 39.
[22] McIvor v R; Tanuchit v R [2009] NSWCCA 264.
[23] While The High Court does not expressly say so, its reasoning is consistent with the Commission’s submission that ‘the indicia of the conditions of slavery identified by international law will assist in drawing a distinction between a power which attaches to the right of ownership and a power which attaches to some other relationship. See: HREOC Submissions in Support of Application for Leave to Intervene and Submissions on the Appeal, 4 [10] and further Jennifer Burn and Frances Simmons, Evaluating Australia’s Response to Trafficking: Toward a Rights-Centred Response to Labour Trafficking, (2009) unpublished draft paper.
[24] See: Jennifer Burn and Frances Simmons, Evaluating Australia’s Response to Trafficking: Towards Rights-Centred Reform, (2009) unpublished draft paper, 24.
[25] See Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 265. See further, D C Pearce and R S Geddes, ‘Statutory Interpretation in Australia’ (6th ed, 2006), [2.16].
[26] For example, in the case of ambiguities. See: Kartinyeri v Commonwealth (1998) 195 CLR 337, 384 (Gummow and Hayne JJ). Gleeson CJ, McHugh and Gummow JJ observed in AMS v AIF (1999) CLR 160 [150], that ‘it has been accepted that a statute of the Commonwealth or of a State is to be interpreted and applied, so far as its language permits, so that it is in conformity and not in conflict with established rules of international law.’ This principle applies to all statutes, not just those statutes that seek to implement Australia’s treaty obligations and ‘ambiguity’ in this context is to be construed broadly: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). See also: Lacey, W, ‘Implementing Human Rights Norms: Judicial Discretion & Use of Unincorporated Conventions’ (2008), Chapters 4 & 5. See also Anne Gallagher, ‘Using International Human Rights Law to Better Protect Victims of Human Trafficking: The Prohibitions on Slavery, Servitude Forced Labour and Debt Bondage, in L Sadat & M Scharf (eds), The theory and practice of international criminal law: essays in honour of M. Cherif Bassiouni. (2008).
[27] Criminal Code, s 271.5.
[28] Criminal Code, s 271.2.
[29] Criminal Code, s 271.3 and s71.6.
[30] Criminal Code, s 271.4.
[31] Criminal Code, s 271.8.
[32] Criminal Code, s 271.9.
[33] Migration Act 1958, s 245AB and s 245AH.
[34] Explanatory Memorandum, Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 (Cth).
[35] See further: Anne Gallagher, Anne Gallagher, Prosecuting and Adjudicating Trafficking in Persons Cases in Australia: Obstacles and Opportunities, Speech delivered at the National Judicial College of Australia Twilight Seminar on Human Trafficking, State Library of New South Wales, Sydney, 15 June 2009.
[36] Bernadette McSherry notes that the ‘complexity of the provisions also raises doubts as to whether they actually comply with the UN Protocol’, in Bernadette McSherry, ‘Trafficking in Persons: A Critical Analysis of the New Criminal Code Offences’ Current Issues in Criminal Justice 18:3 (2007), 395.
[37] Elaine Pearson, ‘Australia’ in Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World’, Global Alliance Against Trafficking in Women, 2007, 32.
[38] See Article 3(b) of the Trafficking Protocol.
[39] See: Australian Government Department of Families, Housing, Community Services and Indigenous Affairs, ‘Trafficking of women for sexual purposes: Research and Public Policy Series – No. 95’, 8 April 2009, http://www.fahcsia.gov.au/sa/women/pubs/violence/traffic_women/Pages/default.aspx, (viewed 28 October 2009).
[40] See: Fiona David, ‘Trafficking for Sexual Purposes’, Australian Institute of Criminology, Research and Public Policy Series, no 95, 55. See also: Australian Government Department of Families, Housing, Community Services and Indigenous Affairs, ‘Trafficking of women for sexual purposes: Research and Public Policy Series – No. 95’, 8 April 2009, http://www.fahcsia.gov.au/sa/women/pubs/violence/traffic_women/Pages/default.aspx, (viewed 28 October 2009).
[41] See HREOC’s submission to the Inquiry into the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004, 18 February 2002, 4. See also: Jennifer Burn and Frances Simmons, Evaluating Australia’s Response to Trafficking: Toward a Rights-Centred Response to Labour Trafficking, (2009) unpublished draft paper, 15-16.
[42] See: UNODC, Model Law Against Trafficking in Persons (2009), 24. See: http://www.unodc.org/unodc/en/frontpage/2009/July/model-law-on-trafficking-in-persons.html, (viewed 30 October 2009).
[43] See: UNODC, Model Law Against Trafficking in Persons (2009), 24. See: http://www.unodc.org/unodc/en/frontpage/2009/July/model-law-on-trafficking-in-persons.html, (viewed 30 October 2009).
[44] See UNODC, Model Law Against Trafficking in Persons (2009), 25. See: http://www.unodc.org/unodc/en/frontpage/2009/July/model-law-on-trafficking-in-persons.html, (viewed 30 October 2009).
[45] Criminal Code, s 271.2(2), s 271.2 (2A), s 271.2(2B) and s 271.2(2C).
46 Criminal Code, s 271.2(2B) and s 271.2(2C).
[47] Criminal Code, s 271.2 (1) and (1A).
[48] Note further that Article 5(1) of the Trafficking Protocol expressly requires States to criminalise trafficking in persons where it is committed intentionally.
[49] Criminal Code, s 271.2((1B) and s 272.2 (1C).
[50] See: HREOC’s submission to the Inquiry into the future impact of serious and organised crime on Australian society’, 27 February 20007. See: http://www.humanrights.gov.au/legal/submissions/2007/jcacc_impact_organised_crime07.html (viewed 30 October 2009). See also: Jennifer Burn and Frances Simmons, Evaluating Australia’s Response to Trafficking: Towards Rights-Centred Reform (2009) unpublished draft paper, 22.
[51] See HREOC’s submissions to the inquiry into the future impact of serious and organised crime on Australian society, 27 February 2007. See further: http://www.humanrights.gov.au/legal/submissions/2007/jcacc_impact_organised_crime07.html (viewed 4 November 2009.
[52] See HREOC’s submissions to the inquiry into the future impact of serious and organised crime on Australian society, 27 February 2007. See further: http://www.humanrights.gov.au/legal/submissions/2007/jcacc_impact_organised_crime07.html (viewed 4 November 2009).
[53] See HREOC’s submissions to the inquiry into the future impact of serious and organised crime on Australian society, 27 February 2007. See: http://www.humanrights.gov.au/legal/submissions/2007/jcacc_impact_organised_crime07.html (viewed 4 November 2009). See also: See also: Jennifer Burn and Frances Simmons, Evaluating Australia’s Response to Trafficking: Towards Rights-Centred Reform (2009) unpublished draft paper, 22.
[54] See also the Abolition of Forced Labour Convention 1957 (ILO No. 105), opened for signature 25 June 1957, 320 UNTS. 291, (entered into force 17 January 1959).
[55] Article 6 of the International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999UNTS 3 (entered into force 3 January 1976).
[56] James Hathaway, ‘The Human Rights Quagmire of “Human Trafficking”’ (2008) 49:1 Virginia Journal of International Law, 1, 9. cf Anne T Gallagher, ‘Human Rights and Human Trafficking: a Quagmire?’, (2009) 49 Virginia Journal of International Law 4. See further, Elaine Pearson, ‘Australia’ in Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World’, Global Alliance Against Trafficking in Women, 2007, 32.
[57] [2008] FMCA 288 (Unreported, Cameron FM, 13 March 2008).
[58] International Labour Organisation, A global alliance against forced labour: a global report under the follow up to the ILO declaration on fundamental principles and rights at work, 2005, 5.
[59] See: Miriam Cullen and Bernadette McSherry, ‘Without Sex: Slavery, trafficking in persons and the exploitation of labour in Australia, (2009) 34(1) Alternative Law Journal 4, 5. c.f. Jennifer Burn and Frances Simmons, Evaluating Australia’s Response to Trafficking: Toward a Rights-Centred Response to Labour Trafficking, (2009) unpublished draft paper. It should also be mentioned that it would be possible to use the trafficking in person offences that involve ‘receipt’ of a person for the purposes of forced labour to prosecute a person who had subjected another person to ‘forced labour’. However, this would involve proving the additional elements of ‘organising or facilitating the receipt of‘ a person either for the purpose of exploitation or having deceived the person about the exploitation.
[60] Anne Gallagher discusses the distinction between slavery and forced labour in ‘Using International Human Rights Law to Better Protect Victims of Human Trafficking: ‘The Prohibitions on Slavery, Servitude Forced Labour and Debt Bondage’, in L Sadat & M Scharf, The theory and practice of international criminal law: essays in honour of M. Cherif Bassiouni (2008), 25.
[61] See Anne Gallagher and Paul Holmes, ‘Developing an effective criminal justice response to human trafficking: lessons from the front line’, (2008), 18 (3) International Criminal Justice Review., 318, 312. This is also consistent with the United Nations Recommended Principles and Guidelines on Human Rights and Human Trafficking, Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council (United Nations E/2002/68/Add.1) May 20, 2002 and the Asia Regional Trafficking in Persons Project’s position, see: http://www.artipproject.org/atrip-tip-cjs/cjr-effective.html, (viewed 27 October 2009). Note that the Australian Institute of Criminology’s, 2009 ‘Trafficking in Persons Monitoring Report July 2007 – December 2008’ states, at page 38, that one of the factors that has an impact on prosecuting trafficking cases is arguments that legal frameworks need to criminalise acts that are related to trafficking.
[62] See Anti-Slavery’s submission to the National Human Rights Consultation Committee, (2009), 12, see: http://www.antislavery.org.au/pdf/asp_submission.pdf (viewed 3 November 2009).