Cases of human trafficking for labour exploitation and forced labour have been found in a variety of employment sectors in Australia. Sectors such as agriculture, construction, hospitality, manufacturing, nursing and domestic work employ large numbers of migrant workers and have been frequently associated with labour trafficking in Australia. Agricultural work in particular is thought to employ considerable numbers of undocumented workers who move with the seasonal nature of the work and work on properties in remote locations, which increases their vulnerability to exploitation. Instances of underpayment, poor accommodation, the use of threats and violence, as well as instances of sexual assault have been reported in both research, media reports, and parliamentary inquiries.
Cases of trafficking for labour exploitation have also been reported in the construction industry, involving workers from the Cook Islands who were recruited and brought to Sydney for work. These workers suffered indentured servitude for a period of two years. Similar cases of labour trafficking of Chinese nationals into the construction industry have also been prosecuted before the courts. Similar criminal cases have been recorded for migrants exploited in the manufacturing and hospitality industries.
People on temporary visas, such as the 457 (temporary skilled visas) visas, 417 (working holiday visas) or student visas, are particularly vulnerable to exploitation. Expert reports suggest that these visas are poorly regulated in terms of monitoring compliance with domestic labour law and working conditions.
Investigations of labour exploitation cases have historically related to domestic workers, however the Australian Federal Police (AFP) has seen increasing referrals relating to hospitality, agriculture and construction industries. The AFP received 169 new referrals relating to human trafficking and slavery matters in 2015–16, taking the total to 691 since 2004. Of these 169 referrals, 69 related to forced marriage, 39 related to sexual exploitation and 36 related to other forms of labour exploitation. Investigations into alleged cases of trafficking for labour exploitation have increased year on year from 22 in 2014, to 33 in 2015 and 36 to June 2016.
Australia criminalises human trafficking, forced labour, slavery and servitude in the Criminal Code Act 1995 (Cth). The Criminal Code also contains offences for dealing with the proceeds or instruments of crime.
Division 270 of the Criminal Code contains offences of slavery (section 270.1), servitude (section 270.4), forced labour (section 270.6), and deceptive recruitment (section 270.7). None of the offences in Division 270 require the victim to be moved across or within Australia’s borders. The slavery offences in section 270.1 have universal jurisdiction, and therefore apply whether or not the conduct occurred in Australia, and whether or not the victim or the offender is an Australian corporation, citizen or resident. The other offences in Division 270 have extended geographic jurisdiction, and can apply where the conduct occurred in Australia, or where the conduct occurred outside Australia but the offender was an Australian corporation, citizen or resident.
Slavery is defined in section 270.1(1) as “the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person”. In the landmark case of The Queen v Wei Tang the High Court described some of the “powers attaching to the right of ownership”, including the power to make the victim an object of purchase, the power to control and restrict their movements, and the power to use their services without commensurate compensation.
The definition of ‘servitude’ in Section 270.4 of the Criminal Code was amended in 2013 to include not only sexual servitude, but all forms of servitude. This section defines ‘servitude’ as:
“the condition of a person (the victim ) who provides labour or services, if, because of the use of coercion, threat or deception:
(a) a reasonable person in the position of the victim would not consider himself or herself to be free:
(i) to cease providing the labour or services; or
(ii) to leave the place or area where the victim provides the labour or services; and
(b) the victim is significantly deprived of personal freedom in respect of aspects of his or her life other than the provision of the labour or services.”
Forced labour is defined in section 270.6 as:
“the condition of a person (the victim) who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person in the position of the victim would not consider himself or herself to be free:
(a) to cease providing the labour or services; or
(b) to leave the place or area where the victim provides the labour or services.”
This section also makes clear that a person may be a victim of forced labour, whether or not escape from their situation is practically possible and/or whether they have attempted to escape.
In 2005 Australia ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the Convention on Transnational Organized Crime (the UN Trafficking Protocol). The Criminal Code Act 1995 was subsequently amended to introduce a suite of offences relating to trafficking in persons and debt bondage. Division 271 of the Criminal Code now criminalises a number of activities involving the trafficking of persons, including both international and domestic trafficking, organ trafficking, and the harbouring of victims. Debt bondage is also a separate offence, contained in section 271.8, and is committed when a person pledges his or her services as security for a debt that is “manifestly excessive”, or the “reasonable value” of the services is not set off against the debt, or “the length and nature of those services are not respectively limited and defined“.
Corporate criminal liability
Under Division 12 of the Code, a corporation may be found guilty of any of the above slavery or trafficking offences, where:
- a) a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority; and
- b) the fault element of the offence may be attributed to the body corporate.
This may be attributed where it is proved that the Board of Directors intentionally, knowingly or recklessly carried out the conduct, or expressly, tacitly or impliedly authorized the commission of the offence. It may also be attributed where it is proved that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision.
Enforcement of Labour Standards
The Fair Work Act 2009 sets out employment conditions and standards that must be met by all employers in Australia. The Fair Work Act is enforced by the Fair Work Ombudsman who conducts awareness campaigns on migrant workers’ rights and pursues civil cases through the courts for workplace violations, such as underpayment of wages. The Ombudsman’s budget was increased by $20 million in 2016, in order to increase its capabilities and workforce as part of the Government’s new policy commitments to protect vulnerable workers. The Ombudsman investigates as small number of cases each year, usually involving systemic or particularly serious cases of exploitation. However, none of the cases investigated by the Ombudsman in 2015 were referred to police or immigration officials for criminal investigation of potential forced labor, and labour exploitation is therefore almost exclusively addressed through civil mechanisms.
Migrant worker vulnerability
Numerous instances of labour exploitation have been detected involving migrant workers on temporary working visas, including student visas and the Temporary Work (Skilled) (subclass 457) visa. In 2015 serious and systemic labour rights abuses were reported by employees of 7-eleven convenience stores, many of whom were international students. The students said they were routinely underpaid and that, when they complained, they were threatened with being reported to immigration authorities for working in excess of the hours allowed under their student visas. The chain has since repaid approximately $57 million in wages to underpaid workers under a wage repayment program.
The abuse of workers’ restrictive immigration status to control workers has also been reported in relation to the subclass 457 visa. This visa is intended to enable employers to fill a shortage in Australian workers by bringing in skilled migrant workers. However a 2016 Senate Inquiry found that 457 visa holders were particularly vulnerable to exploitation, and noted numerous instances in which workers were abused. In 2016 the Government established a cross agency Migrant Workers Taskforce to tackle migrant labour exploitation, including by identifying regulatory and compliance weaknesses that create vulnerability to exploitation.
Undocumented migrant workers are particularly vulnerable to labour abuses and exploitation as Australian employment laws do not apply to workers without a right to work under their visa. Where visa holders have a right to work but work in breach of their visa conditions, the Department of Immigration and Border Protection and the Fair Work Ombudsman have agreed that workers who report their exploitation to the Ombudsman will not have their visa cancelled so long as they commit to abiding by visa conditions in the future. However in the case of temporary visa holders who have no right to work, the Department of Immigration has said that it will consider the case on its merits, but will make no commitment regarding visa cancellation. This means that undocumented workers reporting abuses to the Fair Work Ombudsman risk deportation.
Employer sanctions offences were introduced by the Migration Amendment (Reform of Employer Sanctions) Act 2013. This builds on offences under the Migration Act 1958 and includes civil penalties and criminal penalties for employing and abusing undocumented workers. The changes also included the introduction of civil and criminal liability for the executive officers of a corporation.
The Australian Government has in place a five-year National Action Plan to Combat Human Trafficking and Slavery 2015-2019 that “sets the strategic aims of Australia’s whole-of-community response to human trafficking and slavery over the coming five years, and includes measures to quantify the impact and effectiveness of our collective efforts”. It outlines key areas for coordinated action and four pillars of anti-trafficking activity: prevention and deterrence; detection and investigation; prosecution and compliance; and victim support and protection.
The Interdepartmental Committee on Human Trafficking and Slavery (IDC) is chaired by the Attorney General’s Department and comprises eleven Government agencies, including the Fair Work Ombudsman. The Committee provides oversight of Australia’s response to human trafficking and submits annual reports to parliament. There also exists a joint agency initiative between the Department of Immigration and Border Protection and the Fair Work Ombudsman, named Taskforce Cadena. The Taskforce was established in June 2015 to address visa fraud, illegal work and the exploitation of foreign workers through joint operations. An inter-agency Migrant Workers Taskforce was also established in 2016.
In recognition of the increasing concern regarding labour exploitation, the Australian government announced in 2016 that it would establish a Labour Exploitation Working Group, under the National Roundtable on Human Trafficking and Slavery. The Working Group will report and develop recommendations for Government’s consideration on measures to address serious forms of labour exploitation in Australia”. A specific Supply Chains Working Group was also established in 2014. This group comprised experts from government, business, industry, civil society, unions and academia, and was tasked with examining ways to address serious forms of labour exploitation in the supply chains of goods and services, including slavery and forced labour. The Working Group was dissolved in 2015.
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