Chapter 1 - Introduction
Background
1.1
On 9 February
2005, the Senate referred the provisions of the Criminal Code
Amendment (Trafficking in Persons Offences) Bill 2004 [2005] to the Senate
Legal and Constitutional Legislation Committee for inquiry and report by 7 March 2005. On 7 March 2005, the Senate agreed to
extend the reporting date for this inquiry to 10 March 2005.
Overview of the Bill
1.2
The Bill is part of the Government's response to issues
arising out of trafficking in persons, and aims to fulfil Australia's
legislative obligations under the United
Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children (the Protocol). The Protocol supplements the United Nations Convention against
Transnational Organised Crime. The Protocol's purpose is to prevent and
combat trafficking in persons and facilitate international cooperation against
such trafficking. It aims to maintain a balance between law enforcement and
victim protection. The Trafficking Protocol came into force on 25 December
2003. At present, the Protocol has 117 signatories and 76 parties. The
Explanatory Memorandum explains that passage of the Bill,
combined with other measures already in place, will permit Australian
ratification of the Protocol.[1]
1.3
As explained below, the Bill
inserts new Division 271 into the Criminal
Code Act 1995, creating new trafficking and debt bondage offences.[2]
Trafficking persons into Australia
(i) Offence of trafficking persons into or
within Australia
1.4
Proposed subsection 271.2(1) creates an offence of
trafficking persons into Australia
where the entry into Australia
is accomplished by the use of threats or force which causes the victim to
consent to the entry. Absolute liability applies to one element of the
offence—that the use of threats or force results in the victim consenting to
being brought to Australia.[3]
1.5
Proposed subsection 271.2(2) creates an offence where a
person’s entry into Australia
occurs as the result of deception about the fact that their stay will involve
the provision of sexual services, exploitation, debt bondage or the
confiscation of their travel or identity documents. The maximum penalty for
either offence is 12 years imprisonment.
1.6
Proposed section 271.5 creates a similar offence of
trafficking concerning the organisation or facilitation of the transportation
of persons from one place in Australia
to another place in Australia.
(ii) Aggravated offence of trafficking of
persons into Australia
1.7
Proposed subsection 271.3 creates an aggravated
offence, with a maximum penalty of 20 years imprisonment if a person commits
the proposed section 271.2 offence and:
- the offender intends that the victim
will be exploited after entering Australia
- the offender subjects the victim to
cruel, inhuman or degrading treatment, or
- the offender recklessly subjects the
victim to a danger of death or serious harm.
(iii) Offences of trafficking children into or
within Australia
1.8
Proposed section 271.4 creates an offence of
trafficking where the victim is under 18 years of age and the offender
organises the victim’s entry into Australia
and intends or is reckless about whether the victim will be used to provide
sexual services or otherwise exploited after entering Australia.
The maximum penalty for this offence is 20 years imprisonment.
1.9
Proposed section 271.7 creates a similar offence of
trafficking concerning the organisation or facilitation of the transportation
of children from one place in Australia
to another place in Australia.
Debt bondage
1.10
Proposed section 271.8 creates an offence of debt
bondage where a person intentionally causes another person to enter into debt
bondage. The maximum penalty is imprisonment for 12 months.
1.11
'Debt bondage’ is defined in the Bill as occurring when
a person pledges his or her services or the services of another person as
security for a debt if the reasonable value of those services is not applied to
repay the debt or if the length and nature of the services is not defined.
1.12
Admissible evidence in a debt bondage prosecution can
include the economic relationship between the parties, the terms of any
agreement between them, and the personal circumstances of the alleged victim
(including their ability to speak English and the extent of their social and
physical dependence on the alleged offender).
1.13
Proposed section 271.9 creates an offence of aggravated
debt bondage. It will occur if the offender commits an offence of debt bondage
and the victim is under 18 years of age. The maximum penalty is imprisonment
for 2 years. In order for a person to be convicted of this aggravated offence,
the prosecution must prove that the defendant intentionally committed or was
reckless about committing the offence against a person under the age of 18.
Deceptive recruiting for sexual services
1.14
Item 7 of the Bill
replaces the existing offence of deceptive recruiting for sexual services in
subsection 270.7(1) of the Criminal Code with a reworded offence. The new
offence will cover a wider range of circumstances in which deceptive recruiting
can occur. For instance, not only will deceptive recruiting occur when the
victim is deceived about the fact that they will be required to provide sexual
services but the offence will also occur if the person is deceived about other
matters, such as the extent to which they will be free to leave the place where
they provide sexual services, the extent to which they will be free to cease
providing sexual services or the extent to which they will be able to leave
their place of residence.
Jurisdictional requirements
1.15
Proposed section 271.10 provides that extended
geographical jurisdiction (category B) applies to the offences of people
trafficking into Australia
and debt bondage. This means that the offences apply to conduct by Australian
citizens or bodies corporate anywhere in the world, subject to a foreign law
defence.
1.16
The extended geographical jurisdiction is also applied
to existing sexual servitude and deceptive recruiting offences by the Bill.
Jurisdictional requirements for the domestic trafficking offences
1.17
For constitutional reasons, these offences must be tied
to specific heads of Commonwealth power. Proposed section 271.11 therefore provides that the domestic trafficking offences will be
activated if: any of the conduct occurs outside Australia; the conduct
involves transportation across State borders for reward; the conduct occurs
within a territory; is engaged in by a constitutional corporation; some of the
conduct makes use of a postal, telegraphic or telephonic service; or the victim
is an alien.
Amendment of the Telecommunications (Interception) Act 1979
1.18
The Bill also amends the
Telecommunications (Interception) Act
1979 so that telecommunications interception warrants will be available for
the investigation of the new people trafficking offences and for all the people
smuggling offences in Division 73 of the Criminal Code.
Conduct of the inquiry
1.19
As mentioned above, the Bill
was referred to the Committee on 9
February 2005. Details of the inquiry, the Bill
and associated documents were immediately placed on the Committee’s
website. The Committee wrote to over 100
organisations and individuals to invite submissions by 17 February 2005. The Committee
also advertised the inquiry in The Australian newspaper on 16 February 2005.
1.20
The Committee received 18 submissions, and these are
listed at Appendix 1. Submissions were placed on the Committee’s website for
ease of access by the public.
1.21
The Committee held a public hearing in Sydney
on 23 February 2005.
A list of witnesses who appeared at the hearing is at Appendix 2 and copies of
the Hansard transcript are available through the Internet at http://aph.gov.au/hansard.
Acknowledgement
1.22
The Committee thanks those organisations and
individuals who made submissions and gave evidence at the public hearing.
Note on references
1.23
References in this report are to individual submissions
as received by the Committee, not to a bound
volume. References to the Committee Hansard
are to the proof Hansard: page numbers may vary between the proof and the
official Hansard transcript.