08 March 2013

Organ Trafficking

The Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 (Cth), in effect as of today, amends the Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), the Migration Act 1958 (Cth), Proceeds of Crime Act 2002 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth).

The primary amendment is to the Criminal Code Act to:
  • insert offences of forced labour, forced marriage, organ trafficking and harbouring a victim;
  • ensure the slavery offence applies to conduct which renders a person a slave, as well as conduct involving a person who is already a slave; 
  • extend the application of existing offences of deceptive recruiting and sexual servitude to non-sexual servitude and all forms of deceptive recruiting; 
  • increase penalties for debt bondage offences; 
  • broaden the definition of exploitation to include all slavery-like practices; and
  • amend existing definitions to provide that the broadest range of exploitative conduct is criminalised, including psychological oppression and the abuse of power or taking advantage of a person's vulnerability
Changes to the Crimes Act 1914 increase the availability of reparation orders to individual victims of Commonwealth offence.

There are consequential amendments to  the Crimes Act 1914, the Migration Act 1958, the Proceeds of Crime Act 2002 and the Telecommunications (Interception and Access) Act 1979.

The Explanatory Memo indicates that
The Bill limits the right to privacy. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation, and that everyone has the right to the protection of the law against such interference or attacks. The right to privacy may be subject to permissible limitations. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity. In essence, this will require that limitations: 
  • serve a legitimate objective 
  • adopt a means that is rationally connected to that objective, and 
  • the means adopted are not more restrictive than they need to be to achieve that objective.
 The consequential amendments to the TIA Act will classify the new offences of forced labour, forced marriage, harbouring a victim, and organ trafficking as well as the amended offences of debt bondage as `serious offences' for the purposes of the TIA Act, which will enable law enforcement agencies to obtain warrants to intercept communications of persons of interest, including third persons they are likely to be in contact with, for the purpose of investigating these crimes. 
The powers to intercept communications will be prescribed under the TIA Act and will therefore be authorised by law. 
The limitation on privacy serves the legitimate objective of investigating and prosecuting slavery and people trafficking-related offences. This legitimate objective reflects the absolute right to freedom from slavery and forced labour contained in Article 8 of the ICCPR. Australian authorities are increasingly identifying situations of exploitation that are beyond the scope of the current slavery and people-trafficking related offences. It is necessary to ensure that law enforcement agencies have the means to investigate the new offences of forced labour, forced marriage, harbouring a victim, and organ trafficking, as well as the amended offences of debt bondage in the same manner as the current slavery and people trafficking-related offences. 
Prosecutions reveal that offenders of slavery and people-trafficking offences are often reliant on mobile phone services to organise such crimes. It is therefore very likely that interception would reveal valuable evidence which will improve the ability of law enforcement agencies to investigate and prosecute these crimes. This is particularly pertinent in an area of crime where a victim's testimony is often the primary source of evidence. Implementing the consequential amendments to the TIA Act will ensure that enforcement agencies have the power to investigate the new slavery and people-trafficking related offences in the same way they currently investigate similar serious crimes and to prosecute offenders. 
Less restrictive alternatives to telecommunications interceptions, such as witness testimony, have proven to provide insufficient evidence for the prosecution of offences similar to those proposed by the Bill. This is particularly the case when witnesses are reluctant to testify. In light of the fact that the offences under the Bill, by their nature, are extremely difficult to investigate, a reliance on voluntary testimonies is an insufficient mechanism. 
The ability of law enforcement agencies to intercept communications is limited to the investigation of serious offences for the purposes of the TIA Act, where agencies have applied for, and been issued, an interception warrant by an issuing authority. Issuing authorities may be eligible Judges or nominated Administrative Appeals Tribunal members. The TIA Act requires that in deciding whether to issue an interception, an issuing authority must have regard to how much the privacy of any person or persons would be likely to be interfered with by interception under a warrant. This provides a strict judicial oversight mechanism to prevent arbitrary interference to privacy. 
The TIA Act strictly regulates the use and communication of information obtained by law enforcement agencies under interception warrants. Any information collected may only be used for defined purposes and purposes connected with the investigation of serious offences. The TIA Act also imposes a number of recordkeeping and accountability requirements, including a requirement for law enforcement agencies to record particulars of, and report information about, the `use' and `communication' of intercepted information. Communications are destroyed where the Chief Officer of the agency is satisfied that the record is no longer required for a purpose permitted by the legislation. 
Persons affected by an interception warrant have relevant judicial avenues through which to challenge the validity of the interception and the use of any intercepted communications. They also have the right to access communications being used as evidence against them during prosecution.