Friday 25 August, 2023

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The Australian Human Rights Commission’s (Commission) submission to the Attorney-General’s Department’s Targeted Review of Divisions 270 and 271 of the Criminal Code Act 1995 (Cth) (Targetted Review) was successful in influencing the Findings Report. 

The Finds Report adopted five of the Commission’s recommendations (in-part or in full), while a further three recommendations were influential in making it into the Findings Report (even though they were not reflected in a specific Finding).

Modern slavery

Trafficking in persons and slavery-like practices are some of the most pressing human rights violations in the 21st century.

The Commission notes with concern recent estimates of 49.6 million people currently living in modern slavery across the world.

Australia is not immune to this human rights violation, with Anti-Slavery Australia estimating that over 1,900 people in Australia are victims of modern slavery. The Criminal Code Act 1995 (Cth) must be strengthened to fight modern slavery.

Debt bondage

The Commission raised key issues about the intersection between criminal and labour legislation, noting a duplication of offences under Division 270.7C and federal, state and territory fair work legislation. 

This effective duplication unnecessarily complicates investigation, prosecution and sentencing of criminal and labour offences.

This complication is exacerbated by inconsistencies in sentencing, as the criminal offence for debt bondage incurs a lower penalty than fair work legislation.

To mitigate this, the Attorney-General’s Department has recommended reviewing the associated penalties and interaction between criminal and labour offences to streamline processes.

Guidance on consent 

Consent provided by a victim or survivor during any stage of being trafficked or subjected to slavery is an irrelevant consideration in sentencing.

It should never be the case that a victim or survivor’s consent during this process should be used as a mitigating factor when sentencing offenders. 

The Commission raised concern about the consideration of consent in court cases, and noted that more guidance must be provided to ensure consent is not deemed as relevant. This was a Finding that the Attorney-General’s Department supported. 

Physical borders

With the rise of technology-facilitated slavery, new and disturbing trends have emerged in how people are trafficked or sold into slavery. 

Victims and survivors are increasingly being exploited across multiple jurisdictions simultaneously, while only being located in a single location. This can create difficulties in investigating and prosecuting offenders – as domestic trafficking offences under Division 271 require the physical movement of a person as an element of the offence.

The Attorney-General’s Department has sought to remedy this concern by reframing offences to focus less on physical movement to better capture online-based and other offending that does not involve movement of a victim or survivor.