Table 1 provides a summary of Commonwealth and NSW modern slavery offences as defined in s 5(1) and set out in Sch 2 to the Modern Slavery Act 2018 (NSW) (hereafter MSA (NSW)).

Also included in Table 1 (shaded in grey) are:

The following provisions also apply as follows:⁵⁰

Australia’s legal and policy frameworks give effect to its international treaty obligations to address human trafficking and slavery. Division 270 Criminal Code criminalises offences relating to slavery, which is defined in accordance with the 1926 Slavery Convention. Division 271 Criminal Code contains specific offences for trafficking in persons fulfilling Australia’s obligations under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the United Nations Convention Against Transnational Organized Crime.⁵²

The development of the “Bellagio-Harvard guidelines on the legal parameters of slavery”,⁵³ adopted on 3 March 2012,⁵⁴ provided legal clarity with regard to the interpretation of the definition of slavery in international law. The guidelines state that the starting point for understanding that definition is Art 1(1) of the 1926 Slavery Convention which reads:

In 2008, the High Court of Australia considered underpinning research to the guidelines as a basis to establish the legal applicability of the 1926 definition of slavery to contemporary situations (The Queen v Tang (2008) 237 CLR 1, discussed further at 13.3.2.2).⁵⁵

Relevant international instruments that the Australian Government has ratified as set out in s 7 Modern Slavery Act 2018 (Cth) (hereafter MSA (Cth)) include:⁵⁶

Additionally, Australia formally ratified the ILO Minimum Age Convention, 1973 (No 138) in June 2023, declaring 15 as the minimum age for admission to employment or work in any occupation as this is the youngest age at which a child ceases to be of compulsory school age.

The legislation does not define “the powers attaching to the right of ownership” in the definition of slavery in s 270.1, however, Australian case law has provided guidance on the factors courts need to take into account to determine whether the condition of slavery exists. In The Queen v Tang,⁵⁹ Gleeson CJ noted the definition was clearly based on the definition in Art 1 of the 1926 Slavery Convention, and while not identical, was reasonably capable of being considered appropriate and adapted to give effect to Australia’s obligations under that Convention and was not limited to chattel slavery.⁶⁰ Whether behaviours constitute an exercise of “a power attaching to ownership” is a matter of degree.⁶¹

In The Queen v Tang, the High Court of Australia made clear that the terms “ownership” and “powers attaching to the right of ownership” are not technical legal terms but should be given their ordinary meanings in the context, and that the primary feature of that context is that the subject of the exercise of those powers is a human being.⁶² To constitute “ownership”, one must have dominion over another.⁶³

Chief Justice Gleeson identified the following factors as indicative of slavery:⁶⁴

The “indicia” are not capable of constituting slavery on their own, as distinct from being one of the range of circumstances which are relevant to determining the physical element of the offences under s 270.3(1)(a) Criminal Code (possesses a slave or exercises over a slave powers attaching to the right ownership).⁶⁹ Furthermore, it is possible for more than one offence of slavery or slavery-like offences and debt bondage to arise out of the same circumstances and the offence provisions in the Code are not mutually exclusive.⁷⁰

Chief Justice Gleeson was also careful to specify that harsh and exploitative working conditions will not of themselves amount to slavery.⁷¹ His Honour said that the capacity to deal with a person as an object of sale and purchase “may be a powerful indication that a case falls on one side of the line [between harsh employment and slavery]”.⁷² Another factor could be “the exercise of powers of control over movement which extend well beyond powers exercised even in the most exploitative of employment circumstances, and absence or extreme inadequacy of payment for services”.⁷³

The International Labour Organization (ILO) and United Nations Office on Drugs and Crime (UNODC) publications on indicators of forced labour and trafficking in persons may also assist.⁷⁴

“Modern slavery” in MSA (NSW) includes:⁷⁸

A “modern slavery offence” means the following:⁷⁹

Schedule 2 offences include:⁸⁰

Slavery is not defined in the Crimes Act (NSW), Pt 3 Div 17 (Slavery and slavery-like offences).

See Table 1 at 13.3.1 for the list of offences (in Crimes Act, Human Tissue Act 1983 and Criminal Code) defined as a “modern slavery” offence in the MSA (NSW).

Modern slavery describes situations where offenders use coercion, deception or threats to exploit victims and undermine their freedom. It is a term used to describe serious exploitation and it does not include practices like substandard working conditions or underpayment of workers.⁸¹

Note that absolute liability applies to ss 271.2(1)(c), (1A)(c) and s 271.5(1)(c) (offences of trafficking in persons) Criminal Code which require the use of coercion, threats or deception, meaning there is no proof of fault required and the defence of mistake of fact under s 9.2 Criminal Code is unavailable.⁸²

“Exploitation” is defined in s 271.1A as occurring if one person’s conduct causes the victim to enter into slavery or a condition similar to slavery, servitude, forced labour, forced marriage, or debt bondage: Criminal Code, s 271.1A. This is an exhaustive definition.⁸³ This definition captures aggravated offence provisions in the Migration Act 1958 at ss 245AD(1), (2) and 245AEB(1), (2) where the offences occur in circumstances where the victim is knowingly or recklessly exploited by an offender or another person.⁸⁴

“Coercion”, “deceive” and “threat” are each defined in Div 270 Criminal Code and Pt 3, Div 17 Crimes Act 1900 (NSW) (slavery and slavery-like offences).⁸⁵

“Coercion” includes coercion by any of the following (Criminal Code, s 270.1A; Crimes Act, s 93AA):

This definition is non-exhaustive and captures both physical and non-physical means of coercion.⁸⁶

In R v Pulini, the Queensland Court of Appeal considered the meaning of “coercion” in the Criminal Code. Justice Morrison stated that the relevant conduct of “taking advantage of a person’s vulnerability” included both situational vulnerabilities (her unlawful status, continued deception and absence of a visa) and personal vulnerabilities (her fears of the authorities and the offenders, poor financial resources and personal vulnerability).⁸⁷

“Deceive” means to mislead as to fact (including the intention of any person) or as to law, by words or other conduct: Criminal Code, ss 270.1A, 271.1; Crimes Act 1900, s 93AA. There is no explicit provision to make a deceptive omission an element of offences in Div 270 and 271 Criminal Code.⁸⁸

“Threat” is defined in the Criminal Code (s 270.1A) as:

The definition incudes a threat made by any conduct, whether express or implied and whether conditional or unconditional.

The definition of “threat” in s 93AA Crimes Act 1900 mirrors the definition in the Criminal Code, but refers to “a threat of force” rather than “a threat of coercion”:

These terms are often grouped together when forming an element of an offence in Div 270 and 271,⁸⁹ and are intended to capture a broad range of circumstances, including where the coercion, threat or deception is subtle.⁹⁰ The coercion, threat or deception can be in regard to another person and does not need to occur against the victim themselves.⁹¹

Servitude is one such offence in which the use of “coercion, threat or deception” is an element of the offence. In R v Netthip,⁹² decided under the previous sexual servitude offence (former s 270.6), the offender exercised control through an arrangement akin to debt bondage. “Threat” in this case was ascertained to have arisen from the presence of the debt and not physical constraint.

The definition of “intimidation” in the Crimes (Domestic and Personal Violence) Act 2007 (NSW), s I7(1)(d) and (e) includes conduct amounting to “coercion or deception of, or a threat to” a person to enter into a forced marriage. The meaning of “personal violence offence” in s 4 Crimes (Domestic and Personal Violence) Act includes forced marriage and child forced marriage offences found in the Criminal Code (s 270.7B).⁹³

There are a number of practices that do not constitute modern slavery as such but may be exploited in a way that results in modern slavery practices.⁹⁴ Practices that may overlap with trafficking in persons and slavery or slavery-like offences are:

People smuggling, while distinct from human trafficking, can lead to victims being trafficked during or after smuggling.¹⁰²

Wage theft is a criminal offence at a Commonwealth level from 1 January 2025 and applies to employers who intentionally engage in conduct that results in an underpayment to employees.¹⁰³

The issue of victim consent is specifically addressed in mirror provisions of the Criminal Code (ss 270.11, 271.11B) which provide:

The concluding words of the definition of slavery in s 270.1 Criminal Code, which state that “slavery is 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” [emphasis added], also show that the existence of a contract or a debt between an alleged offender and a complainant is not inconsistent with the commission of an offence.

Consent of a victim-survivor, for example, to one or more aspects of the trafficking process, such as a willingness to travel to Australia, does not reduce their vulnerability or diminish the exploitation they may face after arrival in Australia, ie having travel documents taken away from them, being kept against their will, being forced to pay off large debts, or being physically abused.¹⁰⁴

Victim-survivors of modern slavery may be forced to commit unlawful activities in the course of, or as a consequence of, their exploitation. Some examples include involvement in drug production or trafficking, online scams, possession or the use of fraudulent documents or entering Australia in a manner that does not comply with immigration laws. This raises serious questions about the discretion of the court to apply the internationally recognised non-punishment principle, which can be generally stated as:¹¹⁰

The non-punishment principle can be sourced to negotiations of the United Nations Trafficking in Persons Protocol in 2000.¹¹¹ While the principle is not explicitly contained in the Trafficking Protocol¹¹² nor the United Nations Convention against Transnational Organized Crime (UNTOC), it is increasingly understood as a core component of human rights-based victim protection and assistance, including in the Recommended principles and guidelines on human rights and human trafficking of the Office of the United Nations High Commissioner for Human Rights.¹¹³

The principle does not provide blanket immunity, but aims to protect a victim-survivor when they had no choice but to commit an unlawful act because of their situation, the reality being that the person had no autonomy.¹¹⁴ The principle is based on the understanding that the victim-survivor’s responsibility for unlawful acts is to be framed in the context of coercion or other forms of control, drawing on the criminal defence principles of duress and necessity. Moreover, punishing trafficked persons serves none of the “purposes” of punishment including retribution, deterrence, incapacitation.¹¹⁵ Further rationale for the principle include ensuring victim-survivors are not punished for the conduct of traffickers and encouraging victim-survivors to report crimes committed against them and participate as witnesses in trials against traffickers without fear of being censured themselves.¹¹⁶

Presently, there is no non-punishment provision for criminal offending in Australia’s domestic legal framework.¹¹⁷ In 2017, the Joint Standing Committee on Foreign Affairs, Defence and Trade recommended:¹¹⁸

The Committee recommended that specific guidance (including sentencing guidance) be developed to support the introduction of these defences, which takes into account the impact of modern slavery, exploitation, coercion and vulnerability on victims.

The Commonwealth National action plan to combat modern slavery 2020–25 further made it a strategic priority to “undertake a targeted review of support and legislative protections, defences and remedies available to modern slavery victims and survivors, particularly women and children, taking into account existing reviews and inquiries”.¹¹⁹ However, specific legislative protections or defences available to victim-survivors of modern slavery or trafficking in Australia are yet to be implemented, and protection is limited to prosecutorial discretion or general criminal defences which are often not fit for purpose, and fail to reflect the nuances and realities of the cycles of abuse that trafficked persons often find themselves in.¹²⁰

Statutory defences under the Criminal Code that may be available to victim-survivors of modern slavery and trafficking under certain circumstances, include:¹²¹

In NSW, the common law defences of duress and necessity¹²⁴ may also be available in certain circumstances, however these are untested in the context of trafficking as non-punishment is not embedded as an approach to human trafficking in criminal law.¹²⁵

The courts have stated that the non-punishment principle does not extend to protecting trafficked persons who later become trafficking offenders. In Ho v R,¹²⁶ prior victimisation was not treated as a mitigating factor in sentencing as the court said the fact the offender was once a contracted slave had “both positive and negative aspects from her perspective”.¹²⁷

In Re Boo,¹²⁸ counsel for the accused in a bail application submitted the applicant was a victim of modern slavery, but the judge described the submission as not persuasive due to a lack of significant evidence.

Offences relating to slavery, sexual servitude and deceptive recruiting for sexual services were inserted into Div 270 Criminal Code in 1999 by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth)¹²⁹ following the Australian Law Reform Committee’s report on Criminal admiralty jurisdiction and prize in which it was recommended that the 19th century Imperial Acts be replaced with modern and concise Australian statutory offences.¹³⁰

The Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth)¹³¹ inserted offences into Div 271 of the Criminal Code in 2005 criminalising trafficking in persons, trafficking in children and debt bondage activities, fulfilling Australia’s legislative obligations under the Trafficking Protocol.¹³²

Significant law reform regarding slavery and trafficking in persons offences occurred in 2013 when the Criminal Code was amended by the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013,¹³³ including:

The Amending Act also amended the Crimes Act 1914 (Cth) to increase the availability of reparation orders to individual victims of Commonwealth offences.

The Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018 (Cth)¹³⁴ further amended Pt IAD of the Crimes Act to clarify that the protections afforded to vulnerable witnesses and complainants apply to future criminal proceedings, regardless of when the alleged offence occurred, and to expand the definition of “debt bondage” in the Criminal Code to include the condition of a person whose personal services are pledged by another person, as security for the other person’s debt.

Two national inquiries into modern slavery and human trafficking led to the enactment of the Commonwealth Modern Slavery Act 2018 commencing on assent on 10 December 2018 (substantially commencing 1 January 2019).¹³⁵ This Act established national modern slavery reporting requirements applying to large businesses and other entities in the Australian market with annual consolidated revenue of at least A$100 million.

Modern slavery offences in Div 270 Criminal Code range in seriousness with respect to the length of prison terms to be served, from debt bondage and deceptive recruiting through forced labour to servitude and slavery which attract the most severe penalties. These offences may be characterised as a “hierarchy” as illustrated in Figure 3 below.¹³⁶

Figure 4. Hierarchy of Commonwealth slavery offences

There is overlap between some modern slavery offences and the Migration Act 1958 (Cth) which makes it an offence to knowingly or recklessly employ or refer for work a person who does not have a valid visa or is working in breach of visa conditions: ss 245AC, 245AE.

These offences are escalated to aggravated offences if the worker is being exploited and the offender knows of, or is reckless to, that circumstance: ss 245AD(1) and (2), 245AEB(1) and (2). Under the Migration Act, exploitation occurs if a person causes another person to enter into slavery, or a condition similar to slavery, servitude, forced labour, forced marriage, or debt bondage.¹³⁷ The offences have a maximum penalty of 5 years imprisonment: s 245AH; Criminal Code, ss 271.1 and 271.1A.

Differences in the elements between modern slavery offences and these aggravated Migration Act offences mean that a person may be convicted of both offences.¹³⁸ In Natahkum v The Queen¹³⁹ the offender appealed against sentences for offences contrary to both s 245AC of the Migration Act and s 270.1 Criminal Code (intentionally possessing a slave). The Australian Capital Territory Court of Appeal confirmed that in sentencing for multiple offences, there is a need to ensure that the offender is not doubly punished for a factual circumstance that is an element of two or more offences:¹⁴⁰

Given the global nature of modern slavery offences, territorial jurisdiction may become relevant in certain cases, as these offences can occur outside Australia.

“Slavery” describes the most serious offence in a continuum of exploitative conduct and is therefore distinguished from “slavery-like practices” of servitude, forced labour, deceptive recruiting, forced marriage and debt bondage in the Criminal Code.¹⁵⁷ See 13.3.3.2.

Slavery occurs when a person exercises the rights of ownership over another person. This includes the power to make the victim an object of purchase or to use their labour or services in a substantially unrestricted manner.¹⁵⁸

“Slavery” is defined in s 270.1 Criminal Code 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. See 13.3.2.

Pursuant to s 270.3(1), a person commits an offence of slavery, whether within or outside Australia, who intentionally:

When determining the relevant intention, in The Queen v Tang the High Court held, in relation to a prosecution under s 270.3(1)(a), it is not necessary for the prosecution to prove that the accused knew or believed that the nature of the powers the accused was exercising over the complainant were powers attaching to the right of ownership or the accused was dealing with the complainant as mere property.¹⁵⁹

The maximum penalty for committing this offence is 25 years imprisonment: s 270.3(1). Where a person is reckless as to whether a commercial transaction or act involves a slave, slavery, slave trading or the reduction of a person to slavery, the maximum penalty of 17 years imprisonment applies: s 270.3(2).

Slavery offences are subject to Category D extended geographical jurisdiction requirements: see 13.3.3.3.

The offence applies whether or not the conduct constituting the alleged offence occurs in Australia; and whether or not a result of the conduct constituting the alleged offence occurs in Australia: ss 15.4, 270.3A.

Under the Criminal Code, a person who engages in any conduct with the intention of securing the release of a person from slavery does not commit an offence against the slavery and slavery-like offences in Div 270: s 270.3(4).¹⁶⁰ The burden of establishing this defence rests with the accused: s 270.5.

It is not a defence in a proceeding for an offence against Div 270 that a person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence: s 270.11; The Queen v Tang.¹⁶¹

The principle of double jeopardy also applies. If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence against Div 270 in respect of that conduct: s 270.13.

In NSW, slavery (and servitude and child forced labour (discussed below)) are all criminalised under s 93AB Crimes Act 1900 with a maximum penalty of imprisonment of 25 years. This contrasts with the Criminal Code which defines these offences separately. The prohibited actions must occur in NSW.

A person is guilty of an offence under s 93AB if, in NSW:

Both “servitude” and “slavery” have the meanings they have in the corresponding sections of the Criminal Code: see Crimes Act 1900, s 93AB(6); Criminal Code, ss 270.1, 270.4.

In determining whether a person is being held in slavery or servitude or a child is required to perform forced compulsory labour, regard may be had to all the circumstances¹⁶² which can include:

“Coercion” and “deceive” are defined in s 93AA and mirror the definitions of the Criminal Code. “Threat” also mirrors the definition in the Criminal Code but refers to “a threat of force” rather than “a threat of coercion”: s 93AA. See 13.3.2.

The consent of a person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the child to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or the child is required to perform forced or compulsory labour: s 93AB(5).

These offences fall under Div 270, Subdiv C (Slavery-like offences). The difference between the slavery offences and servitude in the Criminal Code is essentially one of degree. To establish slavery, it must be shown that the accused exercises a power of ownership over the victim. Servitude falls short of ownership but the domination over the victim is such as to effectively deny her or his freedom in some fundamental respect.¹⁸²

As noted above, the Criminal Code creates a hierarchy of the offences of slavery (25 years maximum imprisonment), servitude (15 years maximum imprisonment; 20 years with aggravation) and forced labour (9 years maximum imprisonment; 12 years with aggravation).¹⁸³

For a comparison of how these three offences might apply in a case scenario, see I Love, “Australian Criminal Code — slavery offences” in Inquiry into establishing a Modern Slavery Act in Australia.¹⁸⁴ See also Figure 3 in 13.3.3.2.

Servitude offences (previously limited to sexual servitude) were introduced in the Criminal Code in 1999.¹⁸⁵

Both servitude and forced labour occur where the victim does not consider themselves free to cease providing their labour or services, or to leave their place or area of work, because of the use of coercion, threats or deception: ss 270.4, 270.6.¹⁸⁶

To be in a position of servitude the victim must also be significantly deprived of their “personal freedom in respect of aspects of his or her life other than the provision of the labour or services”: s 270.4. The term “significantly deprived of personal freedom” at s 270.4 is undefined in both legislation and case law. This requirement is:

A person commits a servitude offence against s 270.5 Criminal Code if the person:

In either case, the maximum penalty imposed is 15 years imprisonment.

In the case of an aggravated offence where the victim is under 18, or where the offender in committing the offence, subjects the victim to cruel, inhuman or degrading treatment; engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and is reckless as to that danger, the maximum penalty is 20 years imprisonment: s 270.8.

An alternative verdict of forced labour can be made if a defendant is found not guilty of a servitude offence, provided the defendant has been afforded procedural fairness: s 270.5(3), (4). Similarly, a defendant who is found not guilty for an aggravated slavery-like offence may be found guilty of the corresponding slavery-like offence, provided the defendant has been afforded procedural fairness: s 270.8(3).¹⁸⁸

The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) extended the application of the offence of servitude in the Criminal Code to apply to conduct occurring outside the sex industry in recognition of increasing situations of servitude in the labour market.¹⁸⁹

Servitude, along with the offence of forced labour (discussed at 13.4.3.3), must be interpreted using an objective test of how a “reasonable person in the position of the victim” would understand their labour conditions (s 270.4(1)(a)), and each case should be reviewed on its merits.¹⁹⁰ The offence requires proof that the victim provides labour or services and does not consider themselves to be free to cease providing the labour or services or leave the place or area where the victim provides the labour or services because of the use of coercion, threats or deception.

Section 270.10 provides a court may have regard to the following in determining the reasonable person test:¹⁹¹

The difficulties criminal justice practitioners and the courts may face in understanding the situational and personal vulnerabilities of victims and survivors were raised by the Targeted review which noted:¹⁹²

Juries, for example, may face challenges understanding the type of trauma that has been experienced by victims and survivors and accounting for this trauma when deliberating whether a reasonable person in the victim and survivor’s position would have felt free to cease providing labour or services or to leave the place where they are providing those labour or services.¹⁹³

Trauma has been proven to impair higher-level cognitive functions and to induce a survival mode,¹⁹⁴ and may alter a reasonable person’s perceptions such that they believe they are trapped. Accordingly, the question arises whether the “reasonable person in the position of the victim” means “reasonable person [operating under impairments to reasoning that are induced by] the position of the victim” or “reasonable person [operating as a person not under such impairments would operate] in the position of the victim”. If police and prosecutors lack experience in dealing with the complex trauma that many victim-survivors experience, they may lean towards the latter interpretation in practice, and not charge these offences despite victims being recognised by authorities, for administrative purposes, as victims of modern slavery. This means that while these victim-survivors may obtain access to the Support for Trafficked People Program (STPP),¹⁹⁵ they do not have the benefit of a judicial hearing of the allegations. If police and prosecutors don’t take matters to trial because they considered that, in the victim’s position, a “reasonable person” would not have considered themselves trapped, this would also be deeply de-validating and re-traumatising for many victims. Courts seeking to adopt a trauma-informed approach may therefore need to consider the nuances of the reasonable person test.

Note, the reasonable person test as formulated in Div 270 differs from the standard reasonable person test in other sections of the Criminal Code as it incorporates an element of subjectivity with the phrase “in the position of the victim”. See also 13.9.1.

In R v Pulini, a decision of the Queensland Court of Appeal, the Court interpreted the test as requiring “a construction that defines the reasonable person as having the situational and personal vulnerabilities of the victim”,¹⁹⁶ which in this case included the victim’s unlawful immigration status, continued deception, absence of a visa, fear of the authorities and her perpetrators, poor financial resources and personal vulnerability.

Forced labour is defined in s 270.6 Criminal Code to mean the condition of a person who provides labour or services and who, because of the use of coercion, threat or deception:

The key distinction between forced labour and servitude is that forced labour does not have the requirement of the deprivation of personal freedom.

It is important to distinguish forced labour from poor working conditions; the latter do not give rise to an offence under the Criminal Code. A significant difference between poor working conditions and forced labour is the requirement that the person being forced “would not consider himself or herself to be free”: s 270.6(1).¹⁹⁹

Under NSW law, Pt 3, Div 10A Crimes Act 1900 provides offences of causing sexual servitude or conducting of business involving sexual servitude which allows for the prosecution of cases involving sexual exploitation: Crimes Act 1900, ss 80B–80F.

Section 80B(1) defines “sexual servitude” as being the condition of a person who provides sexual services and who, because of the use of force or a threat, is not free to either:

A threat is defined in s 80B(2) to include:

Sexual service means the “commercial use or display of the body for the sexual arousal or gratification of others”: s 80B(2).

The offence of causing sexual servitude is where the offender causes another person to enter or remain in sexual servitude, and intended to do so, or was reckless in that regard: s 80D. The offence carries a maximum penalty of 15 years imprisonment.

The maximum penalty increases to 20 years imprisonment where the offence is committed in “circumstances of aggravation” where the complainant was under the age of 18 years or had a cognitive impairment (defined in s 61HD): s 80D.

A person who conducts any business that involves the sexual servitude of other persons and who knows about or is reckless as to that sexual servitude is guilty of an offence: s 80E. The maximum penalty is imprisonment for 15 years, or 19 years in circumstances of aggravation.

An alternative verdict is available under s 80F where if the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence under s 80D(1) or 80E(1), it may find the accused not guilty of the offence charged but guilty of the latter offence.

The offence of sexual servitude was added to the meaning of “offence of a sexual nature” in the Crimes (High Risk Offenders) Act 2006 with the commencement of the MSA (NSW) allowing offenders convicted of sexual servitude offences to be subject to post-sentence detention and supervision orders: Crimes (High Risk Offenders) Act, s 5(2).²⁰¹

Servitude and child forced labour (along with slavery) are criminalised in s 93AB Crimes Act 1900 with a maximum penalty of imprisonment for 25 years.

A person is guilty of an offence if, in NSW:

It is important to note that “forced” and “compulsory” are not synonyms in s 93AB(2). “Forced” involves a threat, whereas “compulsory” means required. The term “forced or compulsory” labour is a term of art drawn from international law and practice, specifically Australia’s commitment to various ILO Conventions and Labour Standards.²⁰²

Section 93AB(2) provides that “forced or compulsory labour” does not include:

In determining whether a person is being held in slavery or servitude or a child is required to perform forced compulsory labour, s 93AB(3) provides that regard may be had to “all the circumstances” exemplified in s 93AB(4):

“Coercion” and “deceive” are defined in s 93AA and mirror the definitions in ss 270.1 and 270.1A respectively of the Criminal Code. “Threat” in s 93AA also mirrors the definition in s 270.1A Criminal Code but refers to “a threat of force” rather than “a threat of coercion”. See 13.3.2.

The consent of a person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the child to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or the child is required to perform forced or compulsory labour: s 93AB(5).

The Criminal Code creates two forced marriage offences: causing a person to enter into a forced marriage (s 270.7B(1)) and being a party to a forced marriage (s 270.7B(2)). Both have a maximum penalty of 7 years imprisonment or 9 years for the aggravated form of the offence. If the victim is under the age of 18 and taken overseas for the purpose of forced marriage, this may constitute a trafficking in children offence, which carries a penalty of up to 25 years imprisonment.²⁰⁶ Forced removal overseas of an adult can constitute exit trafficking: Criminal Code, s 271.2(1A).²⁰⁷

Forced marriage is defined in s 270.7A(1) as a marriage where:²⁰⁸

“Coercion”, “threat” and “deception” are defined in s 270.1A Criminal Code and should be given a broad interpretation.²⁰⁹ The Explanatory Memorandum to the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 states that “the intention is that these terms capture a broad range of conduct (both physical and non-physical) that may be used by a person to cause a victim to enter a marriage without their full and free consent”.²¹⁰ Coercion includes obvious means such as physical force, detention or duress, and more subtle means such as psychological and emotional pressure that make the victim or their family feel guilty, obliged or dishonoured.²¹¹

The definition of forced marriage includes marriages (as described in s 270.7A(2)) involving persons who have been transferred, sold or inherited into a marriage with no right to refuse, also known as a “servile marriage”. Where a person has been transferred, sold or inherited into a marriage with no right to refuse, this may also amount to an offence of slavery.²¹²

In 2015, the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) increased penalties and expanded the definition of “forced marriage” to make clear that the offences apply where a person cannot give their free and full consent to marry, including for reasons such as age or mental capacity: s 270.7A(1)(a)(ii).²¹³ The definition was further amended by the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) to explicitly capture all marriage involving children under 16. This made clear that a person under the age of 16 cannot consent to be married and specified that any offence involving a child under 16 would automatically attract the aggravated maximum penalty of nine years imprisonment: ss 270.7A(1)(a), 270.7B(1)(b), 270.8(1)(a) and s 270.8(1) Note.

The offences can apply to different kinds of marriage and marriage-like relationships, including registered relationships and those formed by cultural and religious ceremonies: see s 270.7A(2). This includes marriages that occur in Australia (including where a person was brought to Australia to get married), as well as where a person is taken from Australia to get married overseas.²¹⁴

For the purpose of defining forced marriage in s 270.7A, forced marriage is not limited to marriages recognised by Australian law. Section 270.7A(2) defines “marriage” to include:

Under the Criminal Code, the forced marriage offences can apply to any person with a role in bringing about the forced marriage: s 270.7B(1). This could include, for example, family members, friends, wedding planners or marriage celebrants. The offences apply regardless of the age, gender or sexual orientation of the victim.²¹⁵The offences also criminalise being a party to a forced marriage where one spouse is not a victim of the forced marriage and does not have a reasonable excuse: s 270.7B(2).

Offences under State laws may also be pursued, as they were in an unreported NSW case involving a child where the husband was convicted of offences under s 66EA (persistent sexual abuse of a child) Crimes Act 1900 (NSW), and the father under s 66EB (procuring a child under 16 for unlawful sexual activity).²¹⁶ See also 13.4.5.2 below.

Extended geographical jurisdiction

Extended geographical jurisdiction (Category B) applies to the Criminal Code forced marriage offences. This ensures the provisions capture the conduct of Australian citizens, residents or corporations overseas. The principle of double jeopardy also applies, consistent with existing s 270.13 Criminal Code. See further 13.3.3.

Part VII Marriage Act

Conduct related to or constituting forced marriage may also fall under Pt VII Marriage Act 1961 (Cth) which contains the following offences:

Where the consent of either or both of the parties is not real consent because it was obtained through duress or fraud, or the party is mistaken as to the identity of the other party or the nature of the ceremony, or the party did not understand the nature and effect of the marriage ceremony, or either of the parties is not of marriageable age the marriage is void: Marriage Act, s 23B(1)(d) and (e).

Customary law or cultural practice

Section 16A(1) Crimes Act 1914 (Cth) states that, in determining the sentence to be passed in respect of any person for a federal offence, a court must “impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”. Section 16A(2) provides a non-exhaustive list of matters the Court must take into account, as are relevant and known to the Court. However, the court must not consider any form of customary law or cultural practice as a reason for:

This applies to taking into account the objective gravity and moral culpability of the offence, as part of the instinctive synthesis.²¹⁸

This provision is of particular relevance to forced marriage offences, as the circumstances of many of these offences are due to cultural or social custom.²¹⁹

Section 93AC Crimes Act 1900 (NSW) contains two offences relating to “child forced marriage” for persons under 18 years of age.

Section 93AC provides for an offence where:

Both offences have a maximum penalty of 9 years imprisonment.

For the purpose of s 93AC, “marriage” includes marriages recognised under the law of a foreign country or a marriage that is void, invalid or not recognised by law. A marriage is forced²²⁹ if a child enters into it without freely and fully consenting:

This definition of forced marriage in s 93AC aligns with the Commonwealth forced marriage provisions under s 270.7A Criminal Code.

Section 93AC(4) prescribes a maximum penalty of 9 years imprisonment for the offence of entering into a marriage with a child, knowing that it is a forced marriage. Section 93AC(4)(c) clarifies that a person does not commit the child forced marriage offence if the person is a victim of the forced marriage.²³⁰

In NSW, apprehended violence orders (AVOs) are the primary civil protection order that may apply to situations of forced marriage. These orders prohibit or restrict the subject of the order (“the defendant”) from engaging in certain behaviours where victim-survivors have reasonable grounds to fear and in fact fear for their safety and/or welfare.²³¹ Both the Commonwealth and NSW forced marriage offences are defined as a “personal violence offence” under s 4(b2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which means that adults as well as children have access to the protections of an apprehended domestic violence order or apprehended personal violence order. See further 13.9.4.

This also means that a child forced marriage is defined as an “act of violence” which is considered “sexual assault and domestic violence” under s 19(8)(f) of the Victims Rights and Support Act 2013 (NSW). A victim of a child forced marriage may then become eligible to access support such as recognition payments under s 19(8)(f).²³²

The NSW offence does not address the gaps in protection that exist in the Commonwealth framework for individuals over the age of 18, including access to a Family Law Watchlist Order which prevents travel outside of Australia and currently cannot be extended beyond the age of 18 under the Family Law Act 1975 (Cth).²³³

While forced marriage, and all marriages involving children below the age of 16 are criminalised, a marriage involving a child aged 16 or 17 can still take place with court approval in Australia.

The Marriage Act 1961 (Cth) permits a marriage where one party is aged between 16 and 18 years of age, where there is both the required consent (usually parental) and an Australian court order from a judge authorising the marriage: ss 12, 13. There must be “exceptional and unusual” circumstances to justify an order being made by a judge to permit the marriage. It is illegal for any person under the age of 16, or two people under the age of 18, to marry: ss 11, 95.

The Federal Circuit Court can make a parenting order under Pt VII, Div 5 and 6 Family Law Act 1975 (Cth) (FLA) to ensure that a child under the age of 18 cannot be taken overseas to be forcibly married. Parenting orders deal with various aspects of parenting including, “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”: FLA, s 64B(2)(i).

Courts have the power to make certain other orders which protect children from forced marriage, such as injunctions preventing the removal or harassment of the child, and orders for the delivery of travel documents to the court: see FLA, ss 67ZD, 68B. The court can:

In making a parenting order, the court must have regard to the child’s best interest as the paramount consideration: s 60CA. It will be an offence to remove a child from Australia if a parenting order is in force in relation to a child and the child is removed without the consent of each person in whose favour the parenting order was made: s 65Y.

There are no comparable orders available to adults at risk of forced marriage. Protection orders for family and domestic violence are an option for injunctive relief. However, these orders only apply to conduct in Australia and “are not designed to respond to the specific issue of forced marriage”.²³⁴

Technology plays an increasingly prevalent role in modern slavery and trafficking offences (see also 13.7). Modern slavery crimes may also overlap with child sexual abuse and exploitation offences which are perpetuated through the use of technology. Online platforms such as social media, gaming platforms, direct digital messaging services and generative artificial intelligence (AI), for example, have exposed children to new forms of harm by enabling the escalation, production and distribution of child sexual abuse materials.²⁴⁴

Specific to NSW, the Crimes Act 1900 contains offences relating to child abuse material which are defined as “modern slavery offences” under the MSA (NSW), Sch 2, including:

“Child abuse material” is defined in s 91FB(1) as material that depicts or describes a child (or a person who is, appears to be or is implied to be, a child) in a way that reasonable persons would regard as being offensive after considering all the circumstances and includes:

When deciding whether a reasonable person would regard the material offensive after considering all the circumstances, the court must take into account pursuant to s 91FB(2):

“Offensive” is conduct “calculated or likely to arouse significant anger, resentment, outrage, disgust or hatred in the mind of a reasonable person in all the circumstances”,²⁴⁶ noting a reasonable person is someone the law considers as reasonably tolerant and understanding, and reasonably contemporary in his/her actions.²⁴⁷

Under s 91FA a child is a person under 16 years of age.²⁴⁸

The NSW Supreme Court has made clear that child abuse material encompasses depictions of real children as well as fictional characters and drawings that depict someone who appears to be under the age of 18, whether or not they are a realistic representation.²⁴⁹ Based on this precedent, AI-generated imagery, (including deepfakes²⁵⁰ depicting real children), will fall within the definition of child abuse material if it depicts a person under the age of 18 years in a sexualised manner.²⁵¹

Use of text-based programs, such as ChatGPT to generate storylines involving child abuse themes purely for sexual gratification (rather than an artistic purpose) could also fall within the scope of child abuse material laws. Whether child abuse material constituted by drawings or discussions is the product of fantasies or a retelling of actual events is irrelevant.²⁵²

Section 91G(1) and (2) create offences if a person uses a child in the production of child abuse material, or causes or procures a child to be used in its production, or consent to or allow a child under their care to be used in its production.

The maximum penalty is 14 years imprisonment if the child is under 14 (s 91G(1)) and 10 years imprisonment if the child is of or over the age of 14: s 91G(2).

The MSA (NSW) amended s 91G to provide for an aggravated offence relating to use of a child for production of child abuse material with a maximum penalty of 20 years imprisonment: s 91G(3), (3A) and (3C).²⁵³ Circumstances of aggravation mean circumstances in which:

An evidentiary provision was inserted by the MSA (NSW) to make it easier to prosecute offences under the section: s 91G(3B).²⁵⁴ In proceedings for an offence against this section, it is not necessary to prove that the accused knew the age of the child concerned.

Under s 91H, a person commits an offence if they possess, produce, or disseminate child abuse material: s 91H(2). Under s 91H(1):

The maximum penalty for an offence under this provision is 10 years imprisonment.

Under s 91HAA, a person commits an offence if they administer or assist with administering a digital platform that is used by another person to deal with child abuse material, intending or being aware that it is being used for that purpose. Under s 91HAA(3):

The maximum penalty for an offence under this provision is 14 years imprisonment.

It is an offence under s 91HAB, with a maximum penalty of 14 years imprisonment, for a person over the age of 18 to encourage someone else to use a digital platform and intend them to use it to deal with child abuse material, although this is not included as a “modern slavery offence” in Sch 2 MSA (NSW).

See also, Sentencing Bench Book at [17-520] Child sexual servitude and prostitution and [17-530] Child abuse/pornography offences.

The Commonwealth has provisions separate to its trafficking and slavery legal framework for addressing child sexual abuse and exploitation, including abuse and exploitation that occurs online.²⁶⁴ High maximum penalties for child abuse material offences in the Criminal Code, ²⁶⁵ with higher maximum penalties for aggravated offences,²⁶⁶ reflect the community’s abhorrence of the exploitation of children.

There are higher maximum penalties for aggravated offences, such as where the offending conduct takes place on three or more occasions and involves two or more people (see ss 273.7, 471.22, 474.24A), or where the sexual activity involves a child with a mental impairment or a child who is under the care, supervision or authority of the defendant: see s 474.25B.

Note that these offences are not included in the list of modern slavery offences provided by Sch 2 MSA (NSW).

Divisions 273, 471 and 474 Criminal Code provide key child abuse material offences and maximum penalties including:

The offence of using a carriage service²⁶⁷ for child abuse material (ss 474.22, 474.22A) is committed where a person:

Section 473.1 Criminal Code defines “child abuse material” as:

This definition also includes material that depicts or describes a child, or a representation of a child, as a victim of torture, cruelty or physical abuse: s 473.1.

Reports of child sexual abuse (including online abuse) are increasing. The number of sexual assaults against children and young people (aged up to 17 years old) recorded by police increased by 21% (from 13,353 to 16,140) between 2014 and 2019. Reports of online child abuse material increased by 122% during Australia’s first COVID-19 lockdown in April to June 2020, compared to April to June 2019.²⁶⁸

For more information on Commonwealth child sexual abuse and exploitation offences, see Sentencing Bench Book at [17-540] Child sexual servitude and prostitution and [17-541] Child abuse/pornography offences.

The Act sets out seven mandatory criteria for the content of Modern Slavery Statements at s 16(1):

Judges are likely to encounter cases in relation to reporting obligations as the legislation matures. On 25 May 2023, the federal Government tabled a report³⁰⁰ on the statutory review of MSA (Cth), which reviewed the first three years of the Act’s operation. The review made 30 recommendations for government consideration to strengthen the Act. Key recommendations made in the review include:

If the recommendations set out in the review are adopted, more organisations will be required to submit modern slavery statements and implement due diligence systems, and there will be civil penalty offences for failing to report without reasonable excuse, submitting a report that knowingly includes materially false information, or failing to put a due diligence system in place. The Anti-Slavery Commissioner (Cth) could be authorised to commence court proceedings for a penalty to be imposed — an approach that is already adopted in both the illegal logging and anti-money laundering schemes.³⁰¹

A “government agency” as defined in s 5 MSA (NSW) includes a government sector agency (within the meaning of the Government Sector Employment Act 2013 (NSW)), a NSW Government agency, a council, county council or joint organisation within the meaning of the Local Government Act 1993 or any public or local authorities. A government agency must take “reasonable steps” to ensure that goods and services procured by and for the agency are not the product of modern slavery within the meaning of the MSA (NSW): Public Works and Procurement Act 1912 (NSW), s 176(1A).³⁰⁴

Reporting obligations for government agencies are provided by the Government Sector Finance Act 2018 (NSW) and associated regulations or by the Local Government Act 1993 (NSW).

The Auditor-General may audit the procurement activities of government agencies to assess modern slavery risk: Government Sector Audit Act 1983 (NSW), Pt 3, Div 2B.

As of 1 July 2023, GSF agencies must include a statement in their annual reports: MSA (NSW), s 31.³⁰⁵ “Government sector finance agencies” are defined in ss 2.4 and 2.5 of the Government Sector Finance Act 2018. The Government Sector Finance Act also extends annual reporting obligations to certain NSW universities: s 7.10(2).

Some GSF agencies are also “government agencies” as defined under s 38F of the Government Sector Audit Act 1983 and s 5 of the MSA (NSW), and therefore may be subject to a modern slavery audit under Div 2B of the Government Sector Audit Act. ³⁰⁶

The following information must be included in annual reports:

There are eight State owned corporations in NSW.³⁰⁸ State owned corporations must take reasonable steps to ensure that goods and services procured by and for the agency are not the product of modern slavery within the meaning of the MSA (NSW) and must report on these steps and related matters: Public Works and Procurement Act 1912 (NSW), s 176(1A). State owned corporations have reporting obligations under the Government Sector Finance Act 2018 (NSW) and the MSA (NSW) such as providing annual reporting information on modern slavery as for GSF agencies above: MSA (NSW), s 31(1).

Under the MSA (NSW), a State owned corporation must make and publish modern slavery statements under the MSA (Cth).

State owned corporations that fall within the definition of “reporting entity” of the MSA (Cth) (an Australian entity which has a consolidated revenue of at least $100 million and carries on business in Australia at any time in that reporting period: s 5) have independent obligations to publish modern slavery statements under that Act.

If a State owned corporation does not fall within the definition of “reporting entity” under the MSA (Cth), it “must” instead make a voluntary modern slavery statement, in accordance with s 6 MSA (Cth): MSA (NSW), s 25A.

All State owned corporations must publish a copy of the modern slavery statement on their public website and provide written notice to the NSW Anti-slavery Commissioner that the statement has been published as soon as is practicable after giving the (federal) Minister a modern slavery statement under the MSA (Cth): s 25B.

Councils must take reasonable steps to ensure goods and services procured are not the product of modern slavery: Local Government Act 1993, s 438ZE. Councils are required to provide a statement in their annual reports of:

The Auditor-General has a role under the MSA (NSW). Section 25 requires the Anti-slavery Commissioner to regularly consult with the Auditor-General and the NSW Procurement Board to monitor the effectiveness of due diligence procedures in place to ensure that goods and services procured by government agencies are not the product of modern slavery.

The Auditor-General may conduct a risk-based audit of all or any particular activities of a government agency to determine whether the government agency is ensuring that goods and services procured by and for the agency are not the product of modern slavery: Government Sector Audit Act 1983, s 38G. The Auditor-General is required to give the Anti-slavery Commissioner advice as to the result of any modern slavery audit: Government Sector Audit Act, s 38H.³¹²

The Commonwealth Criminal Code, which criminalises slavery and human trafficking offences, requires the physical movement or transportation of a person as an element of the offence of trafficking in persons — either across Australia’s international borders or from one place in Australia to another: ss 271.2–271.7. Trafficking actions such as recruiting or harbouring that are not connected to organising or facilitating physical movement will not always be captured under Australia’s existing trafficking in persons offences.

Because of concerns raised by various stakeholders about this limitation, the Targeted review (Findings Report) has recommended reframing Australia’s trafficking in persons offences to focus less on the physical movement of the victim to better capture online-based and other offending that does not involve the movement of the victim.³³¹

In 2015, the Australian Government established the eSafety Commission, Australia’s independent regulator for online safety. The eSafety Commission has specific authority under the Online Safety Act 2021 (Cth) to quickly protect victims of online abuse across reporting schemes, and to compel online service providers to remove seriously harmful content within 24 hours of receiving a formal notice.

While the eSafety Commission does not have specific powers or responsibilities in preventing modern slavery, or policing how technology may be used to facilitate slavery, it does play a key role in raising awareness to risks online — including “guidance to young people on topics such as ‘cat fishing’³³² and unsafe or unwanted contact, both of which may be tactics used by offenders online to facilitate slavery”.³³³

The Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth) commenced on 4 September 2021, amended the Surveillance Devices Act 2004 (Cth), the Crimes Act 1914 (Cth) and associated legislation to introduce new law enforcement powers and warrants to enhance the Australian Federal Police and the Australian Criminal Intelligence Commission’s ability to combat cyber-enabled serious and organised crime, including online child exploitation.

For NSW specifically, the MSA (NSW) (commenced 1 January 2022) addresses the growing crime of live-streamed online sexual exploitation or “cybersex trafficking” with the introduction of offences into Pt 3, Div 15A Crimes Act 1900 “to further penalise involvement in cybersex trafficking by making it an offence to administer a digital platform for the purpose of child abuse material or encourage another person to use a digital platform to deal with child abuse material”.³³⁴

In 2022, one child in every 100 in the Philippines were victims of trafficking to produce child sexual exploitation material.³³⁵ While the victims of cybersex are often overseas, a large percentage of those demanding and perpetrating the crimes are Australians, many of them from NSW.³³⁶

The amendments on cybersex trafficking primarily target the production and distribution of child abuse material. The offences of producing, disseminating and possessing child abuse material, and of using children to produce child abuse material have been added to the list of modern slavery offences in Sch 2 MSA (NSW).

The amendments make it easier for prosecutors to obtain convictions for the crime of producing child abuse material, by making it unnecessary to prove that the offender knew the victim’s age: s 91G(3B).

It is an offence under ss 91HAA–91HAC to administer a “digital platform” (which is undefined in the Act) used to deal with child abuse material if one is aware others are using it for child abuse material. “Deal” in this context includes viewing, uploading and downloading child abuse material: s 91FA. Offenders who commission the abuse of children online often record the abuse for later viewing or to share.

International Justice Mission Australia notes that these amendments will be a vital tool for police and prosecutors to combat the disturbing trend of networks of paedophiles that are cooperating in the abuse of children, particularly as there are dedicated sections on forums explaining how to access children online.³³⁷

Human trafficking and slavery cases often rely on victim-survivor testimony as the primary or only source of evidence. Due to the central role that victim-survivors play in providing evidence to police and recounting testimony in court, victim cooperation has a significant impact on the quality of such evidence and therefore the success of the prosecution. Victim-survivors may be reluctant to give evidence of the offence, especially if they, or their families, have been the subject of violence or threats of violence either in Australia or their country of origin. As a result, the Commonwealth Director of Public Prosecutions has discontinued the prosecution of trafficking offences against a number of defendants due to insufficient evidence.³⁶⁰ While not exclusively an issue in modern slavery matters, language and literacy skills present another challenge. Issues that may affect cooperation fall into three major categories:³⁶¹

Victim-survivors of all forms of exploitation are less likely to cooperate if the perpetrator was known to them or their family. This is particularly the case if the perpetrator is a family member and the victim-survivor is a child, which most commonly occurs in cases of forced marriage.³⁶²

Victim-survivors may also be reluctant to cooperate as a result of not identifying as victims themselves. A 2021 study by the Australian Institute of Criminology (AIC) confirms, for example, that labour exploitation victim-survivors were the least likely to self-identify or acknowledge their victim status due to differing normative standards of employment and workplace relations in Australia compared to origin countries.³⁶³

The credibility of victims’ evidence is likely to be challenged in court, even when victim-survivors do cooperate with investigators and prosecutors. Key challenges identified by the AIC as contributing to attrition rates include:³⁶⁴

The following points are useful to consider in relation to victim-survivors of modern slavery in the context of legal proceedings.

Be aware of the impact that experiences of trauma may have on a victim-survivor’s experience of the court process as discussed at 13.9.1.

For some, trauma already experienced may be amplified through their engagement with law enforcement agencies and the court process (eg, giving oral evidence, being cross-examined, being present in the court room or court precinct with the perpetrator, or having to repeatedly return to court for mentions, adjournments and hearings). These experiences may affect the victim-survivor’s demeanour and behaviour in court.³⁶⁵ Trauma has also been shown to affect how memories are captured by the brain and this can impair testimonial evidence.³⁶⁶ It is also worth noting that dissociation is a very common trauma response which can impair memory and testimony.³⁶⁷

In court, a victim-survivor of modern slavery may give evidence that is inconsistent, lacking in detail, or late. Research evidence suggests these factors should not lead to the person’s evidence being disbelieved and allowances should be made when considering the reliability of their account.³⁶⁸ Some key assumptions made by decision makers in the context of asylum decisions that have been identified as problematic are that:

Many victim-survivors of modern slavery offences come from culturally and linguistically diverse backgrounds. They may not speak or read English or be familiar with the Australian legal system.³⁷⁰ Language and cultural barriers can have a significant impact on how well victim-survivors and witnesses understand what they are going through and what is happening during their case. In many modern slavery cases, much of the prosecution’s case relies on the testimony of witnesses, including that of the victim-survivors themselves.³⁷¹

In accordance with the rules of procedural fairness, courts must accommodate the language needs of parties and witnesses with limited or no English proficiency. A right of a witness to give evidence through an interpreter has been given statutory recognition in s 30 Evidence Act 1995 (Cth):

It is a matter for the judge to decide whether an interpreter is required in each case. The court must decide whether the witness or defendant is likely to be disadvantaged in giving evidence without one.

For more information on the need for an interpreter or translator and people from culturally and linguistically diverse backgrounds generally, see Equality Before the Law Bench Book, Section 3; and Judicial Council on Diversity and Inclusion factsheets and resources.³⁷²

A NSW police officer must apply for a provisional AVO in certain circumstances including:³⁸⁴

The specified offences include Commonwealth forced marriage offences and the NSW child forced marriage offence under the definition of “personal violence offence”,³⁸⁵ and intimidation under s 7 CDPV Act which includes conduct amounting to the coercion or deception of, or a threat to, a person to enter into a forced marriage whether there is a domestic relationship or not.

The court is required to make an interim AVO against a person who is charged with a “serious offence” (defined in s 40(5) CDPV Act to include a child forced marriage offence under s 93AC Crimes Act 1900 (NSW) and a forced marriage under s 270.7B Criminal Code)³⁸⁶ unless the court considers that it is not required: CDPV Act, s 40(3). The court must also make a final AVO against a person who pleads guilty or is found guilty of a serious offence, unless the court considers that it is not required: CDPV Act, ss 39 and 40.

Under s 48(2) CDPV Act, standing to apply for a final or interim AVO is given to the person in need of protection or their guardian, or a NSW police officer. Only a NSW police officer has standing to apply for an AVO if each of the protected persons under the order is a child under the age of 16 years: s 48(3). An Australian Federal Police (AFP) officer does not have standing to apply for a final or interim AVO under s 48(2) despite the AFP currently being the primary reporting pathway for forced marriage allegations.³⁸⁷

The Secretary for the Department of Communities and Justice or authorised person may apply for an AVO on behalf of a child being subjected to coercion to enter into a forced marriage: s 48(2)(c).

Victim-survivors of forced marriage may face difficulties in seeking the protections provided by the AVO regime.³⁸⁸

The Department of Communities and Justice has noted that it can be extremely challenging for victim-survivors of forced marriage to make a private application for an AVO against a family member as “victim survivors may want the behaviour surrounding forced marriage to stop but not want to implicate a person/s with whom they have familial or personal affiliation in a crime, to jeopardise temporary immigration status or to be alienated from their family or social networks.”³⁸⁹ A “police officer” is defined as a member of NSW police thereby excluding the AFP tasked with managing most criminal prosecutions of forced marriage cases.³⁹⁰ This exclusion arguably places pressure on young people to apply for orders against their parents, in circumstances where the NSW police have not applied for an AVO.³⁹¹

Further, a person aged over 16 years but under 18 years may encounter obstacles in accessing AVO protections from forced marriage because a “child” is defined as being a person under the age of 16 years under the CDPV Act: s 3. In contrast, the Department of Communities and Justice is authorised to make an application for an AVO in the case of a child being subject to a forced marriage within the meaning of s 93AC Crimes Act 1900 (NSW), in which a “child” is defined as a person who is under 18 years of age: CDPV Act, s 48(2)(c). The practical impact of the differences in the way that a “child” is defined between these two Acts means that the Department will not be authorised to make an application in the case of a person who is either 16 or 17 years of age.³⁹² Similarly, the exception in s 19(2) CDPV Act whereby it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears the offence or relevant conduct when that person is a “child”, will not apply to a person who is either 16 or 17 years of age.³⁹³

While AVOs are available to victim-survivors to prevent a person from assaulting, threatening, stalking, intimidating or going within a certain distance of their home or workplace, such orders “are not designed to respond to the specific issue of forced marriage, which may involve conduct that occurs overseas”.³⁹⁴ Children at risk of forced marriage may obtain State protection by applying for a parenting order prohibiting the conduct that would enable the marriage.³⁹⁵ These orders may be sought by the young person themselves, either or both parents, a grandparent or by “any other person concerned with care, welfare or development of the child”: Family Law Act 1975 (Cth), s 65C. However, there are no similar protections in place for vulnerable adults facing forced marriage to obtain orders that would prevent the marriage from taking place. There is currently no Commonwealth forced marriage protection order scheme, similar to that for forced marriage protection orders in the United Kingdom, that would allow the AFP to prevent travel for young people aged over 18 who are still vulnerable to forced marriage, often up to the age of at least 25.³⁹⁶

As of July 2024, the Australian Government is seeking submissions on its consultation paper Enhancing civil protections and remedies for forced marriage to inform the government’s work to tackle forced marriage through a coordinated national response, including through the development of a model to enhance civil protections and remedies for people in, or at risk of, forced marriage.³⁹⁷

The commencement of the MSA (NSW) saw the definition of a primary victim extended to include a victim of an act of modern slavery under the Victims Rights and Support Act 2013 (NSW) (VRSA): s 20(1). Financial support, counselling and recognition payments available to primary victims³⁹⁸ of “an act of violence” under the VRSA includes victims of “an act of modern slavery”: ss 17, 19A, 23, 35.³⁹⁹ Under VRSA, victim-survivors of “acts of violence” can receive compensation and counselling costs. Recognition payments for victims of modern slavery are intended to recognise the trauma suffered by a victim due to the act of violence.⁴⁰⁰

“Harm” is defined in the meaning of “victim of crime” in s 5 VRSA and includes actual physical bodily harm or psychological or psychiatric harm, and harm due to a person’s property being deliberately taken, destroyed or damaged: VRSA, s 5(2). A person who suffers harm in the course of any conduct that is “slavery, servitude or forced labour to exploit children or other persons” taking place in the supply chains of government or non-government agencies is considered a “victim of crime” as defined in the Act: VRSA, s 5(1).⁴⁰¹

The VRSA definition of “victim of crime” refers explicitly to the conduct of a kind referred to in para (b) of the definition of “modern slavery” in MSA (NSW) (slavery, servitude or forced labour to exploit children or other persons) and potentially excludes other forms of modern slavery as captured by virtue of the definition of “modern slavery” in para (a), such as forced marriage and human trafficking: MSA (NSW), s 5(1).⁴⁰² The definition also extends to members of the victim’s immediate family if the victim dies as a result of the act concerned: VRSA, s 5(3).

To be eligible for victims support under the VRSA, the act of violence must have occurred in NSW: s 19A(1).⁴⁰³ This may present challenges for victims where the victim is exploited in different locations across Australia or in the offshore supply chains of Australian companies, or prior to migration to Australia. DRJ v Commissioner of Victims Rights (No 2)⁴⁰⁴ for example, further exemplifies challenges in accessing compensation in Australia. In this case, five Yazidi women suffered violence in Syria and Iraq by an Australian citizen, Khaled Sharrouf, who joined ISIS. The Yazidi women applied to the Commissioner of Victims Rights in NSW for “victims support”. However, despite their capture and enslavement by Sharrouf, they were not eligible for compensation under the VRSA because the act of violence did not occur in NSW.

An “act of modern slavery” in s 19A(1) VRSA is an act or series of related acts that:

A single act that is both an act of violence and an act of modern slavery is only eligible for support once under the Victims Support Scheme. This ensures the scheme does not enable double recovery in relation to the same act. A person who has been the victim of separate acts of violence and modern slavery is still eligible for support.⁴⁰⁶

The Victims Support Scheme provides:

In determining whether or not to approve the giving of victims support, in the case of an act of modern slavery, the Commissioner of Victims Rights must have regard to the nature of the relationship between the victim and the person or persons by whom the act of modern slavery is alleged to have been committed: s 44(3A).

In NSW, certain protections are provided for domestic violence complainants in proceedings for a domestic violence offence, complainants in sexual assault matters, and cognitively impaired persons: Criminal Procedure Act 1986 (NSW), Ch 6, Pt 4B, 5 and 6.

The court has control over the questioning of witnesses. It can make orders about the way evidence is given and can disallow questions: Evidence Act 1995 (NSW), Ch 2, Pt 2.1, Div 3 and 5.

There are protections for children in protection order proceedings and right to presence of a support person for a party in protection order proceedings: Crimes (Domestic and Personal Violence) Act 2007 (NSW), Pt 9.

Courts can make reparation orders in human trafficking and slavery cases: Crimes Act 1914 (Cth), s 21B. A judicial officer may order a federal offender to make reparation to the Commonwealth, or to a public authority under the Commonwealth, for any loss suffered or expense incurred by reason of the offence, or to a person who has suffered loss as a direct result of the offence: Crimes Act, s 21B(1)(c) and (d).

A reparation order is a discretionary order by the court and additional to the sentence imposed. Orders are enforced by way of civil enforcement action such as the seizure and sale of property, registration of a charge on land, or garnishee of wages. Without pro bono representation, victims may lack support to make an application for reparations or may be unaware that it is possible to seek reparations as part of the criminal justice process.⁴⁰⁷

Section 21B does not explicitly provide that a reparation order may be made in respect of non-economic loss such as pain and suffering, loss of amenities or loss of expectation of life. In the case of child sex tourism or trafficking, for example, there would need to be clear evidence of a direct loss suffered by the victim by reason of the offending. As a result, s 21B may not adequately provide for reparation orders to be made for victims of people trafficking as it may be difficult to show that any loss occasioned by a victim of people trafficking occurred as a direct result of the commission of an offence.⁴⁰⁸

When making a reparation order, courts may have regard to the personal circumstances and means of the offender and have generally found that the defendant’s financial means are a relevant consideration.⁴⁰⁹ Accordingly, the amount ordered may not reflect the loss suffered as a direct result of the offending.⁴¹⁰ If the defendant does not pay the reparation order, it may need to be enforced through the civil courts.

In the case of modern slavery crimes that involve the exploitation of one person’s labour for the benefit of another without commensurate compensation, victims of criminal labour exploitation may be able to recover unpaid wages under the civil remedy provisions of the Fair Work Act 2009 (Cth).⁴¹¹