was illustrated in the case, Attorney-General's Reference (nos. 129 and 132 of 2006),21 as it was
held that the Protocol’s definition provides an internationally agreed norm of the term and when
other Acts have different definitions, “the definitional confusions provide space for criminals to
continue to exploit trafficked slaves with impunity.” However, the Trafficking in Persons Act,
2011, adopts the exact definition of human trafficking in the Protocol. Thus, this illustrates the
adequacy of the Act as it complies with the Protocol, adhering to its international obligations and
unlike Division 271, would not need any amendments for this section.
Furthermore, the penalties attached to trafficking offences must be high in order to reflect the
seriousness of the offence of human trafficking as a, “crime against humanity.” The Protocol
illustrated that human trafficking offences must carry a penalty of twenty years imprisonment
and should be comparable with serious offences such as kidnapping.22 However, the penalties
under Division 270 of Australia’s Criminal Code did not comply with the Protocol. When
Australia’s Criminal Code Amendment Bill, 2004 was presented to the Senate in Australia, it
was highlighted that the penalty for human trafficking which was twelve years imprisonment
was the same penalty as blackmail, a less serious offence and thus do not show the seriousness of
the offence of human trafficking.23 However, the penalties under the Trafficking in Persons Act,
unlike that of Division 270, do indicate the seriousness of the crime. For example, a person who
is found sexually exploiting children, under the 2011 Act, section 18 can face twenty years
imprisonment. Also persons found aiding, just simply, “aiding,” in prostitution under the 2011
Act, can be sentenced to fifteen years imprisonment. Thus, the penalties under the 2011 Act,
comply with the agreed penalties under the Protocol as the penalties established are comparable
to serious offences and as such illustrating the Act’s effectiveness.
Additionally, the structure of the Act is quite important and it should not be confusing and must
be clear so that the public can understand it and make reference to it with ease. However, the
human trafficking offences illustrated in Division 271 of the Criminal Code are repetitive and
confusing. This is because of its structure whereby offences relating to human trafficking are
21
[1948] 1 KB 223
Trafficking in Persons Protocol [2000], s14(6)
23
Jarrod Jolly, ‘Trafficking in Persons’ [2010] Sydney Law Review, 28
22
19