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2004
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CRIMINAL CODE AMENDMENT
(TRAFFICKING IN PERSONS
OFFENCES) BILL 2004
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable Chris Ellison)
CRIMINAL CODE AMENDMENT
(TRAFFICKING IN PERSONS
OFFENCES) BILL 2004
GENERAL OUTLINE
This Bill amends the Criminal Code Act 1995 (the Criminal Code)
and the Telecommunications (Interception) Act 1979 (the
Telecommunications Interception Act).
The Bill improves the
existing strong federal regime of offences targeting trafficking in persons.
The Bill criminalises comprehensively every aspect of trafficking in persons and
fulfils Australia's legislative obligations under the United Nations Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, supplementing the United Nations Convention against
Transnational Organized Crime. Passage of this bill, combined with other
measures already in place, will permit Australian ratification of this
Protocol.
The principal features of the Bill are:
• a significant extension to the existing deceptive recruiting for sexual services offence in section 270.7 of the Criminal Code
• an amendment to the penalty for the aggravated sexual servitude offence in section 270.6 of the Criminal Code (raising the penalty from 19 years to 20 years imprisonment)
• new offences targeting the trafficking of persons into Australia
• a new offence of trafficking children into Australia
• a new offence of debt bondage
• new domestic trafficking in persons offences where trafficking in persons activity takes place wholly within Australia, and
• amendments to make telephone interception warrants available for the
investigation of the new trafficking offences.
FINANCIAL IMPACT
STATEMENT
There is no financial impact flowing directly from the
offence provisions in this Bill.
NOTES ON CLAUSES
General
Unless otherwise indicated, any reference to a
‘section’, ‘subsection’ or ‘paragraph’ in
these notes is a reference to a section, subsection or paragraph in the
Criminal Code Act 1995 (the Criminal Code).
Clause 1:
Short title
This is a formal clause which provides for the citation
of the Bill. This clause provides that the Bill when passed may be cited as the
Criminal Code Amendment (Trafficking in Persons Offences) Act 2004.
Clause 2: Commencement
This clause set out when the
various parts of the Bill commence.
Sections 1 to 3 of the Bill (the
short title, the commencement and the schedules provision) and anything in the
Bill not covered elsewhere in the table in clause 2 will commence on the
day the Bill receives Royal Assent.
Schedules 1 and 2 of the Bill,
which insert new offences into the Criminal Code and provide that
warrants under the Telecommunications (Interception) Act 1979 are
available for the investigation of the new people trafficking offences, commence
on the 28th day after the day on which the Bill receives Royal Assent. This
will enable the orderly implementation of the measures.
Clause 3:
Schedule(s)
This clause makes it clear that the Schedules to the Bill
will amend the Acts set out in those Schedules in accordance with the provisions
set out in each Schedule.
Schedule 1- Amendment of the Criminal Code Act 1995
Item 1
This item removes the definition of exploited
from subsection 73.2(2) of the Criminal Code so that it can be
replaced by the definition of exploitation in the Dictionary of
the Criminal Code (see item 13).
The existing definition of
exploited in the Criminal Code only applies to the
extraterritorial people smuggling offences in Division 73. The new definition
of exploitation inserted in the Dictionary of the Criminal
Code will apply to all the trafficking in persons offences, including the
offences inserted by the Bill.
Item 2
This item repeals
the definitions of travel document and identity
document in subsection 73.6(2). Items 15 and 18 of the Bill insert
these definitions into the Dictionary of the Criminal Code.
The existing definition in the Criminal Code only applies to the
extraterritorial people smuggling offences in Division 73. The new definition
in the Dictionary will also apply to the new trafficking in persons offences.
Item 3
This item repeals the definition of sexual
service in subsection 270.4(2) of the Criminal Code. Item 17 of
the Bill inserts an identical definition of sexual service into
the Dictionary of the Criminal Code.
The existing definition in
the Criminal Code only applies to the offences in Division 270. The
new definition of sexual service will also apply to the new
trafficking in persons offences which are found in Division 271.
Item 4
This item repeals section 270.5 of the
Criminal Code. Section 270.5 describes the jurisdictional
requirements that must be established before a person can commit an offence
against section 270.6 or 270.7 of the Criminal Code.
Division 270 was enacted before the introduction of Division 15 of the
Criminal Code. Division 15 provides for ‘Extended
geographical jurisdiction’ for Commonwealth offences, and provides four
categories of extended geographical jurisdiction.
Item 4 applies
Category B jurisdiction to the offences of sexual servitude and deceptive
recruiting for sexual services under sections 270.6 and 270.7. Under Category B
jurisdiction, a person commits the offence if:
• the conduct
constituting the alleged offence occurs wholly or partly in Australia or on
board an Australian aircraft to ship, or
• the conduct occurs wholly
outside Australia and a result of the conduct occurs wholly or partly in
Australia or on board an Australian aircraft or ship, or
• the conduct
occurs wholly outside Australia and the person is an Australian citizen,
resident or body corporate incorporated in Australia, or
• the alleged
offence is an ancillary offence, the conduct constituting that offence occurs
wholly outside Australia and the conduct or a result of the constituting the
primary offence (to which the ancillary offence relates) occurs or is intended
by the person to occur wholly or partly in Australia or wholly or partly on
board an Australian aircraft or ship.
Division 15 was enacted after the
enactment of Division 270, so it is now appropriate to determine the
geographical reach of the offence with reference to the general principles of
the Criminal Code. Category B jurisdiction is similar to what was
provided for in section 270.5.
Items 5 and 6
These
items increase the penalty for the aggravated sexual servitude offence in
section 270.6 of the Criminal Code from 19 years imprisonment to 20 years
imprisonment.
The aggravated sexual servitude offence applies where a
person causes a person under the age of 18 to enter into sexual servitude or
conducts any business that involves the sexual servitude of a person under the
age of 18. The 18 year old threshold accords with the United Nations
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children (the Trafficking Protocol).
This amendment aligns
the penalty for this offence with the penalty for the extraterritorial offence
of people smuggling aggravated by exploitation in section 73.2 of the
Criminal Code.
This amendment also ensures consistency with the
penalty that applies to the new offences of trafficking children into Australia
(new section 271.2) and trafficking children within Australia (new section
271.4).
Item 7
Existing section 270.7 of the Criminal
Code makes it an offence for a person to intentionally deceive another
person about the fact that their employment or other engagement will involve the
provision of sexual services.
The existing offence does not address the
situation where a person knows that he or she will be working in the sex
industry but is deceived about the exploitative conditions of that employment.
This is addressed by new subsection 270.7(1) in item 7, which
significantly extends the scope of the offence of deceptive recruiting for
sexual services. The amended offence includes deception about the conditions
under which sexual services are to be provided.
The new offence covers
deception about:
• the extent to which the person will be free to
leave the place or area where the person provides sexual services
• the
extent to which the person will be free to cease providing sexual
services
• the extent to which the person will be free to leave his or
her place of residence, and
• the fact that the engagement will involve
exploitation, debt bondage or the confiscation of the person’s travel or
identity documents.
The definition of trafficking in
persons in Article 3(a) of the Trafficking Protocol identifies deception
as one of the ‘means’ of trafficking in persons. This amendment
ensures that Australia’s criminal laws are fully compliant with the
definition of trafficking in persons in the Protocol.
New
subsections 270.7(1A) and (1B) in item 7 provide that a court or jury may
treat a broad range of information as admissible evidence in proceedings under
this section. New subsection 270.7(1A) provides that the court or jury may
consider evidence of the economic relationship between the victim and alleged
offender, the terms of any contract or agreement and the personal circumstances
of the victim (including the person’s migration status, ability to speak
and understand English, and social and physical dependence on the alleged
offender). However, new subsections 270.7(1B) provides that new
subsection 270.7(1A) does not provide an exhaustive list. That is, it does
not limit the leading of any other evidence, nor does it limit the manner in
which evidence may be adduced or the admissibility of evidence under the
Commonwealth Evidence Act 1995 or equivalent State and Territory
legislation.
New subsections 270.7(1A) and (1B) are designed to
ensure that the court or jury is able to take into account the significant power
imbalances between people traffickers and their victims.
The amended
offence criminalises activity that is essentially preparatory to sexual
servitude and is not designed to capture employment disputes in the context of
legalised prostitution. That is, the deceptive recruiting offence will not
capture employment disputes in the sex industry where the sex worker disputing
the particular contract or arrangement has not been trafficked into Australia.
The amendments to the deceptive recruiting offence in item 7 remain
aligned with the original purpose and object of the offence as introduced in
1999 and recognises the fact that the general regulation of prostitution is a
matter for the States and Territories.
Item 7 provides for a penalty of
7 years imprisonment or 9 years imprisonment in the case of the aggravated
offence in existing subsection 270.8 of the Criminal Code. The
aggravated offence applies where the victim is under 18 years of age, and the
person intended to commit, or was reckless as to committing, the offence against
a person under that age.
Item 8
This item is consequential
to the amendment in item 4 of the Bill which applies Category B jurisdiction to
the offences of sexual servitude and deceptive recruiting for sexual services.
Existing section 270.10 of the Criminal Code provides that, in
determining whether a person has committed an offence against Division 270, it
does not matter whether or not the person is an Australian citizen or resident.
Persons who are not Australian citizens or residents are automatically covered
by the offences in Division 270 because item 4 applies Category B
extended geographical jurisdiction to those offences. Accordingly, section
270.10 is no longer necessary.
Section 16.1 of the Criminal Code
deals with the Attorney-General’s consent for certain prosecutions (where
the conduct occurs wholly in a foreign country and the alleged offender is not
an Australian citizen, resident or body corporate). Section 16.1 automatically
applies to offences which attract Category B jurisdiction. Therefore, section
270.11 is no longer necessary.
Item 9 – Division
271
Item 9 creates new offences of trafficking in persons and debt
bondage.
New section 271.1 defines key terms for the purposes of new
Division 271. These definitions are not in the Dictionary of the Criminal
Code because they only apply to the offences in new Division
271.
Confiscate is defined to mean to take possession of a
travel or identity document, whether permanently or otherwise, to the exclusion
of the person, or to destroy the document. It will be an offence to deceive a
person about the fact that their travel or identity documents will be
confiscated in the context of the amended deceptive recruiting offence (item 7)
and in the context of the offences of trafficking persons into Australia (new
section 271.2) and trafficking persons within Australia (new section 271.5).
Constitutional corporation is defined as a corporation to
which paragraph 51(xx) of Commonwealth Of Australia Constitution Act
(the Constitution) applies. Paragraph 51(xx) of the
Constitution confers on the Australian Government the power to make laws
for the peace, order, and good government of the Commonwealth with respect to
foreign corporations, and trading or financial corporations formed within the
limits of the Commonwealth.
Deceive means mislead as to
fact (including the intention of any person) as to law, by words or other
conduct. This is similar to the definition of deception in section 133.1 of the
Criminal Code which applies to the fraudulent conduct offences in Part
7.3 of the Criminal Code.
Threat includes a threat
of force, a threat to cause a person’s removal from Australia or a threat
of any other detrimental action unless there are reasonable grounds for the
threat of that action.
New section 271.2 creates a new offence of
trafficking in persons. This offence targets the transportation of persons to
Australia by means of force, threats or deception. Force, threats and deception
are three means of trafficking in persons identified in Article 3(a) of the
Trafficking Protocol. This offence expands the existing slavery and sexual
servitude offences. Whereas the existing offences focus on ‘final’
exploitation of the person, the new offence includes transporting the person for
the purposes of exploitation. This is one of the practices contemplated in the
Trafficking Protocol.
New subsection 271.2(1) criminalises organising
or facilitating the entry, proposed entry or receipt of another person into
Australia by means of force or threats. For example, this new offence would
apply to a person who uses force or threats to gain the consent of a trafficking
victim to travel to Australia, even where that person is not involved in the
final exploitation of that trafficking victim.
New
subsection 271.2(3) provides that absolute liability applies to the element
of the offence in paragraph 271.2(1)(c). This means that it will not be
necessary for the prosecution to prove a fault element for that particular
physical element, and that the defence of mistake of fact will not be available
to the defence (see section 6.2 of the Criminal Code). It will
still be necessary to show that the person used force or threats against the
person.
This element of the offence does not affect the culpability of
the offender, but rather sets the perimeters of the offence. Under the
Criminal Code, the fault element of ‘recklessness’ applies to
an element of a circumstance unless another fault element is specified.
Recklessness requires the person to be aware of a substantial risk, but to
engage in the conduct anyway. If the prosecution was required to prove
awareness on the part of the defendant that the force or threats would result in
the victim’s consent, many defendants would be able to evade liability by
demonstrating that they did not turn their minds to that issue (despite the fact
that they had committed the prohibited conduct). Therefore, it is necessary
only to prove that the person used threats or force, and that those threats or
that force in fact resulted in the victim consenting.
A penalty of 12 years
imprisonment will apply to the new offence in
subsection 271.2(1).
New subsection 271.2(2) makes it an offence for
a person to organise or facilitate the entry, proposed entry or receipt of
another person into Australia where there is deception about the fact that the
entry, receipt or arrangements made in Australia will involve the provision of
sexual services, exploitation, debt bondage or the confiscation (whether
temporary or permanent, or destruction) of the other person’s travel or
identity documents. For example, this offence would apply to a person who
organises for a trafficking victim to go to Australia, and who deceives that
trafficking victim about the fact that their passport will be taken from them
when they are in Australia.
For the purposes of this offence, it does
not matter whether the victim’s entry or proposed entry is lawful or
unlawful under the Migration Act 1958 (Migration Act). Sections 232A,
233 and 233A of the Migration Act deal specifically with bringing groups
of non-citizens into Australia. This reflects the distinction between people
trafficking and people smuggling. Division 73 of the Criminal Code
covers people smuggling activity that takes place outside Australia.
A
penalty of 12 years imprisonment will apply to the new offence in
subsection 271.2(2).
New subsection 271.3(1) creates an aggravated
offence of trafficking in persons where the offender commits the offence of
trafficking in persons and that person:
• intends that the victim
will be exploited, or
• subjects the victim to cruel, inhuman or
degrading treatment or
• engages in conduct that gives rise to a
danger or death of serious harm to the victim and is reckless as to that danger.
For example, this offence would apply where the offender arranges for
the victim to be transported to Australia in a vessel that is so unseaworthy as
to give rise to a danger of death or serious harm to the victim. This offence
would also cover a situation where a trafficker forces a trafficking victim to
have unprotected sexual intercourse, potentially exposing the victim to sexually
transmitted diseases.
Under new subsection
271.3(2), if a court or jury decides the aggravated offence has not been proven,
but that the lesser offence (new section 271.2) has been proven, the court or
jury can deliver a guilty verdict under the lesser offence.
The
aggravated offence reflects the aggravated extraterritorial people smuggling
offence in section 73.2 of the Criminal Code.
A penalty of 20
years imprisonment will apply to the aggravated offence in new section
271.3.
New section 271.4 provides for an offence of trafficking in
children.
Article 3(a) of the Trafficking Protocol defines trafficking
in persons as:
the recruitment, transportation, transfer, harbouring or
receipt of persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of payments or benefits
to achieve the consent of a person having control over another person, for the
purpose of exploitation.
The new trafficking in children offence reflects
Article 3(c) of the Trafficking Protocol, which provides that:
the
recruitment, transportation, transfer, harbouring or receipt of a child for the
purpose of exploitation shall be considered trafficking in persons, even if it
does not involve any of the means set forth in subparagraph (a) of this
article.
New section 271.4 applies where a person intentionally organises
or facilitates the entry or proposed entry of a person under the age of 18 into
Australia, and intends or is reckless as to whether that person will be used to
provide sexual services or will be otherwise exploited. A penalty of 20 years
imprisonment applies to this offence.
The definition of
Exploitation that applies to this offence is inserted
into the Dictionary of the Criminal Code by item 13.
Exploitation occurs where the exploiter’s conduct causes the victim to
enter into slavery, forced labour or sexual servitude, or causes an organ of the
victim to be removed without consent by either the victim or the victim’s
legal guardian, and the organ was not removed for a medical reason. The
reference to organ removal mirrors the requirements of the Trafficking
Protocol.
Similarly, the definition of sexual service for
the purposes of this offence in inserted into the Dictionary of the Criminal
Code by item 17. Sexual service is defined as the
commercial use or display of the body of the person providing the service for
the sexual gratification of others.
New subsection 271.5(1) creates a
new offence of domestic trafficking in persons where the trafficking activity
occurs wholly within Australia. This new offence complements new section 271.2,
and ensures that the offences in new section 271.2 are fully effective.
For example, a people trafficker in a foreign country may organise the
entry of a person into Australia for the purposes of subjecting the person to
sexual servitude in a brothel. Once the victim has arrived in Australia, a
second participant in the trafficking activity may provide accommodation for the
victim for a short period and then organise the victim’s forced
transportation to the specific destination where the brothel is located. The
activity of the second participant would be covered by the offence in new
section 271.5.
Implementing offences which cover purely domestic
trafficking activity will address the conduct of persons who are not directly
involved in organising a trafficking victim’s entry into Australia but who
facilitate the arrangements to exploit the victim within Australia. These
offences will assist in ensuring each and every participant in the
‘chain’ of exploitation of the victim can be prosecuted for that
participation.
Similar to new section 271.4, the domestic trafficking
offence applies where:
• the offender uses force or threats to
obtain the other person’s consent to that transportation, or
• the offender deceives the other person about the fact that the
transportation (or any arrangements made for the other person at the arrival
destination) will involve the provision of sexual services, exploitation, debt
bondage or the confiscation of the other person’s travel or identity
documents.
As with the new offence in subsection 271.2(1),
absolute liability applies to the element of the offence in paragraph
271.5(1)(c). Therefore, once it has been shown that the use of force or threats
resulted in the person obtaining the victim’s consent to the
transportation, it is not necessary to prove, for example, that the person was
aware that the force or threats resulted in that consent.
For
Constitutional reasons, the domestic trafficking offences only apply in the
situations established in new section 271.11 The Constitutional issues are
explained further below. The penalty for this offence is 12 years imprisonment.
New section 271.6 creates the offence of aggravated domestic trafficking
in persons. It mirrors the offence of aggravated trafficking in persons in new
section 271.3.
New subsection 271.6(1) creates an aggravated offence of
domestic trafficking in persons where the offender commits the offence of
domestic trafficking in persons and that person:
• intends that the
victim will be exploited, or
• subjects the victim to cruel, inhuman or
degrading treatment or
• engages in conduct that gives rise to a
danger or death of serious harm to the victim and is reckless as to that danger.
Under new subsection 271.6(2), if a court or jury is not convinced that
the aggravated offence has been proven, but that the lesser offence (new section
271.5) has been proven, it can deliver a guilty verdict under the lesser
offence.
New section 271.7 creates the offence of domestic trafficking
in children. It mirrors the section 271.4 offence of trafficking in
children.
The penalty for the aggravated domestic trafficking offence and
the domestic trafficking in children offence is 20 years
imprisonment.
New subsection 271.8(1) creates the offence of debt
bondage.
One tactic employed by people traffickers is the use of debt
contracts or arrangements. Under these arrangements, the victim is coerced into
providing sexual services or other labour to pay off large ‘debts’
supposedly incurred because the trafficker has arranged the victim’s
travel to a country or entry into that country or has organised employment and
accommodation for the victim following the entry.
New subsection
271.8(1) makes it an offence to engage in conduct that causes and is intended to
cause another person to enter into debt bondage. The definition of debt
bondage is contained in item 10 and is based on the definition adopted
in the Supplementary Convention (to the 1926 International Convention to
Suppress the Slave Trade and Slavery) on the Abolition of Slavery, the Slave
Trade and Institutions and Practices similar to Slavery.
Debt
bondage will be defined in the Dictionary as:
The status or
condition arising from a pledge by a person of his or her personal services (or
of the personal services of a person under his or her control) 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 that person if:
• the
reasonable value of those services is not applied towards the liquidation of the
debt or the purported debt, or
• the length and nature of those
services are not respectively limited and defined.
The definition
refers to a “debt owed or claimed to be owed”. This definition is
drafted to ensure that traffickers who invent or grossly inflate debts owed to
them by their victims are covered by the offence. For example, where a
trafficker claims that his or her victim owes a debt of $20,000 on the basis
that the trafficker booked and paid for the victim’s $2000 airfare to
Australia, the debt “claimed to be owed” will be covered by the
offence.
This definition of debt bondage is sufficiently limited to
ensure the offence does not inadvertently target legitimate employment
arrangements involving the application of services towards the liquidation of
the debt and the limitation and definition of the length and nature of the
services involved.
The definition of debt bondage is not limited to a
debt that exists at the time the pledge is given. The definition is drafted
broadly to ensure it captures situations where the debt owed or claimed to be
owed increases following the making of the pledge. This would cover situations
where, for example, the perpetrator applies some of the value of the services
provided to the liquidation of the debt, but also provides accommodation or
other amenities to the victim, effectively increasing the amount of the debt
owed. It would also cover the situation where, for example, the perpetrator
provides payment to the victim, either in the form of money or some other
valuable consideration.
New subsections 270.8(2) and (3) are in
similar terms to new subsections 270.7(1A) and (1B).
Subsection 270.8(2) provides that a court or jury may treat a broad range
of information, including evidence of the economic relationship between the
victim and alleged offender, the terms of any contract or agreement and the
personal circumstances of the victim as admissible evidence in proceedings under
this section. However, new subsections 270.8(3) provides that new
subsection 270.8(2) does not limit the leading of any other evidence, nor
does it limit the manner in which evidence may be adduced or the admissibility
of evidence.
Consistent with new subsections 270.7(1A) and (1B) in
the deceptive recruiting offence, new subsections 270.8(2) and (3) are
designed to ensure that the court or jury is able to take into account
significant power imbalances.
This offence is less serious than the
trafficking in persons offences or the sexual servitude or slavery offences.
The penalty for this offence is 12 months imprisonment, which enables this
offence to be dealt with as a summary offence, reflects the relative seriousness
of the offence. 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.
The offence recognises that debt bondage is exploitative in itself and conducive
to more significant abuse of individuals by those in a position to exploit
them.
New subsection 271.9(1) creates an aggravated debt bondage offence
where a person commits the offence of debt bondage against a victim under the
age of 18. New subsection 271.9(2) provides that the aggravated offence applies
where that person intends or is reckless as to committing the offence against a
person under that age.
A penalty of two years imprisonment for the
aggravated offence is consistent with the deceptive recruiting for sexual
services offence and sexual servitude offence in Division 270 of the Criminal
Code which provide for higher penalties where the victim is under the age of
18. It is also consistent with the higher penalties for the new offences of
trafficking in children into Australia and trafficking children within Australia
in new sections 271.4 and 271.7.
Under new subsection 271.9(3), if a
court or jury is not convinced that the aggravated offence has been proven, but
that the lesser offence (new section 271.8) has been proven, it can deliver a
guilty verdict under the lesser offence.
New section 271.10 provides
that category B geographical jurisdiction applies to the offences in new
sections 271.2, 271.3, 271.4, 271.8 and 271.9.
That is, category B
jurisdiction applies to the offences of trafficking persons into Australia,
aggravated offences of trafficking persons into Australia and trafficking
children into Australia, debt bondage and aggravated debt bondage. Section 15.2
of the Criminal Code describes Category B jurisdiction (explained under
item 4, above).
New section 271.11 outlines the jurisdictional
requirements for the domestic trafficking in persons offences in new sections
271.5, 271.6 and 271.7. These are the offences of domestic trafficking in
persons, aggravated domestic trafficking in persons, and domestic trafficking in
children.
The domestic trafficking in persons offences apply where:
• the conduct constituting the offence occurs to any extent
outside Australia
• the conduct involves transportation across State
borders for reward or in connected with a commercial arrangement
• the
conduct occurs within a Territory or involves transportation to or from a
Territory
• the conduct is engaged in by a constitutional corporation
or in circumstances where the victims were intended to be employed by such a
corporation
• some of the conduct constituting the offence is engaged
in by communication using a postal, telegraphic or telephonic service,
or
• the victim of the conduct is an alien.
The
Commonwealth’s power to legislate in relation to domestic trafficking is
limited by section 51 of the Constitution. Accordingly, the list of
circumstances set out in this section reflects the Australian Government’s
constitutional power to implement offences that target trafficking in persons
activity within Australia.
New section 271.12 clarifies that new
Division 271 is not intended to exclude or limit the operation of any other
federal law or any State or Territory law. All State and Territory
jurisdictions except Queensland and Tasmania have enacted sexual servitude laws.
New section 271.13 provides protection against double jeopardy for all
of the offences in new Division 271. This section provides that, if a person
has been convicted or acquitted outside Australia for an offence in respect of
particular conduct, the person cannot be convicted of an offence against new
Division 271 in respect of that particular conduct.
Item 10
This item defines debt bondage for the debt bondage
offence (this is discussed above, see item 9, new section 271.8).
Item 11
This item inserts the definition of
exploitation into the Dictionary of the Criminal Code.
Exploitation is defined as occurring where the
exploiter’s conduct causes the victim to enter into slavery, forced labour
or sexual servitude. These terms are all defined in the Criminal
Code.
Exploitation is also defined as occurring where
the exploiter’s conduct causes an organ of the victim to be removed either
where the removal is contrary to the law of the jurisdiction in which the organ
is removed, or where neither the victim nor the victim’s legal guardian
consented to the organ’s removal and there was no medical reason for the
removal of the organ.
This definition reflects Article 3(a) of the
Trafficking Protocol which states:
Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs.
Item 12
Item
12 inserts the definition of forced labour in section 73.2 of the
Criminal Code into the Dictionary of the Criminal Code.
Forced labour is currently defined in section 73.2
as the condition of a person who provides labour or services (other than sexual
services) and who, because of the use of force or threats:
• is not
free to cease providing labour or services, or
• is not free to leave
the place or area where the person provides labour or services.
Item
13
This item inserts the definition of identity
document into the Dictionary of the Criminal Code. An identity
document is defined as any kind of document that may be used to establish the
identity of a person in a country under the law or procedures of that country.
For example, a driver’s licence would be an identity
document.
Item 14
This item inserts a definition of
personal service into the Dictionary of the Criminal Code for the
purposes of the debt bondage offence.
Personal service
is defined broadly to include any labour or service, including a sexual
service, provided by a person.
Item 15
This item inserts
the definition of sexual service into the Dictionary of the
Criminal Code. This term means the commercial use or display of the body
of the person providing the service for the sexual gratification for others.
For example, this definition covers not only an act of prostitution but
activities such as stripping (where it takes place in the commercial context for
the sexual gratification of others).
Item 16
This item
inserts the definition of travel document into the
Dictionary of the Criminal Code. Travel document means any
kind of document required, under the law of a country, to enter or leave that
country. All passports and visas would be covered by this definition.
Schedule 2 – Telecommunications (Interception) Act 1979
Item 1
This item amends the Telecommunications
(Interception) Act 1979 (the Telecommunications Interception
Act), to ensure that law enforcement agencies, including the Australian
Crime Commission and the Australian Federal Police can seek telecommunications
interception warrants in connection with the investigation of all the
trafficking in persons in a manner consistent with the current interception
regime.
Under the Telecommunications Interception Act,
there are two classes of offences for which telecommunications interception
warrants can be obtained. Prior to issuing a telecommunications interception
warrant to an agency, an issuing authority must be satisfied of a range of
matters, including that there are reasonable grounds for suspecting that a
person is using or is likely to use the telecommunications service, and that
information that would be likely to assist in the investigation of a class 1 or
class 2 offence could be obtained by interception of that service.
Class 1 offences are the most serious Commonwealth offences, and
include crimes such as murder and certain terrorism offences. Class 2
offences are also serious offences, and must be punishable by at least
7 years imprisonment. All class 1 offences for the purposes of the
Telecommunications Interception Act are listed in section 5D
of the Act.
For class 2 warrants, the issuing authority must consider a
number of additional factors, namely the privacy of the person of interest and
the gravity of the alleged conduct constituting the offence.
The existing
offences against section 73.2 of the Criminal Code (people smuggling
aggravated by exploitation) and all the offences in Division 270 (slavery,
sexual servitude and deceptive recruiting) are included as ‘class 2’
offences.
This item amends section 5D of the Telecommunications
Interception Act to ensure the new trafficking in persons offences in
Division 271 of the Criminal Code (except for the debt bondage offences)
and all of the offences in Division 73 of the Criminal Code are included
as ‘class 2’ offences. The penalty and seriousness of these
offences makes them appropriate to be included in the ‘class 2’
category of offences to which telecommunications interception warrants should be
available under the Telecommunications Interception Act. The
classification of the new trafficking offences as class 2 offences will
contribute to the effective enforcement of those offences.