The Offence of Human Trafficking in Australia

by Ugur Nedim & Sonia Hickey
Qantas plane

In January this year, a 29-year old Australian from Lidcombe in Sydney became the first person to be convicted of human trafficking by coercing a person to leave Australia.

It has been reported the man – whose name has been suppressed to protect the victim and child – purchased a one-way ticket for his Indian-born wife and Australian-born child to travel from Sydney to India in March 2017.

While the reasons behind him not wanting his wife and child to remain in Australia are unclear, police say the man threatened to kill his wife if she did not leave the country.

Disturbing footage

Eerie footage from Sydney airport shows the man having a verbal altercation with his wife, which the man later accepted through agreed facts was his attempt to convince his wife to board the flight from Australia.

The woman turns around several times, before finally being ushered through the departure gates by another person.

After she departs for India, the man contacts Australian immigration authorities and tries to have his wife’s legal visa status revoked to prevent her from returning.

His attempt fails, and she arrives back two months later before reporting to police that she feared for her life if she did not leave the country.

Raid, arrest, plea and sentence

Australian Federal Police (AFP) raided the couple’s Lidcombe in September 2017, and the man was arrested two months later while attempting to board a flight bound for Bangkok.

The man pleaded guilty in the New South Wales District Court to using force or threats to organise or facilitate the exit or proposed exit of a person from Australia, which is an offence under section 271.2(1A) of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of 12 years in prison.

He ultimately received a 21 month prison sentence.

Human trafficking in Australia

Human trafficking tends to be overlooked as a social issue in Australia.

However, AFP says that, contrary to popular belief, Australia is a primary destination for people trafficked from Asia, particularly Thailand, Korea, the Philippines and Malaysia.

In 2018 alone, non-profit group Anti-Slavery Australia helped over 120 people who had been trafficked to or from Australia, or had faced slavery-like conditions while in Australia, including forced marriage, servitude and forced labour.

Around the same time, a report by the Australian Institute of Criminology estimated that only one in five victims are detected.

During the 2019 to 2020 financial year, the AFP received 223 reports of human trafficking, often involving slavery or slavery-like treatment, but police suspect the problem is far more widespread – with many victims not aware the conduct is unlawful, or too fearful to report it.

The Offence of Human Trafficking in Australia

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

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

Trafficking in persons – entry to Australia

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

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

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

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

Trafficking in persons – exit from Australia

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

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

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

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

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

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

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

(b)  in organising or facilitating that entry or proposed entry, or that receipt, the person is reckless as to whether the other person will be exploited, either by the person or another, after that entry or receipt.

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

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

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

(b)  in organising or facilitating that exit or proposed exit, the person is reckless as to whether the other person will be exploited, either by the person or another, after that exit.

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

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

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

(b)  the person deceives the other person about the fact that the other person’s entry or proposed entry, the other person’s receipt or any arrangements for the other person’s stay in Australia, will involve the provision by the other person of sexual services or will involve the other person’s exploitation or the confiscation of the other person’s travel or identity documents.

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

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

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

(b)  the person deceives the other person about the fact that the other person’s exit or proposed exit is for purposes that involve the provision by the other person of sexual services outside Australia or will involve the other person’s exploitation or the confiscation of the other person’s travel or identity documents.

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

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

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

(b)  there is an arrangement for the other person to provide sexual services in Australia; and

(c)  the person deceives the other person about any of the following:

(i)  the nature of the sexual services to be provided;

(ii)  the extent to which the other person will be free to leave the place or area where the other person provides sexual services;

(iii)  the extent to which the other person will be free to cease providing sexual services;

(iv)  the extent to which the other person will be free to leave his or her place of residence;

(v)  if there is a debt owed or claimed to be owed by the other person in connection with the arrangement for the other person to provide sexual services–the quantum, or the existence, of the debt owed or claimed to be owed.

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

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

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

(b)  there is an arrangement for the other person to provide sexual services outside Australia; and

(c)  the person deceives the other person about any of the following:

(i)  the nature of the sexual services to be provided;

(ii)  the extent to which the other person will be free to leave the place or area where the other person provides sexual services;

(iii)  the extent to which the other person will be free to cease providing sexual services;

(iv)  the extent to which the other person will be free to leave his or her place of residence;

(v)  if there is a debt owed or claimed to be owed by the other person in connection with the arrangement for the other person to provide sexual services–the quantum, or the existence, of the debt owed or claimed to be owed.

Definitions

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

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

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

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

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

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Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Autumn 2021.

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