The Persistent Problem of Consent in Australian Criminal Laws on Trafficking in Persons, Slavery and Slavery-like Practices

Abstract

The Australian federal government, in its recent review of the trafficking in persons, slavery and slavery like offences in divs 270 and 271 of the Criminal Code Act 1995 (Cth), revisited the question of whether these offences adequately enshrine the principle of the irrelevance of consent originating in art 3(b) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. The task of ensuring compliance with this principle is fraught, given that both the meaning of consent in this context and the parameters of the principle itself are not settled. This article argues that, contrary to the intention of Australian legislators, consent is in fact relevant for the purposes of establishing a number of the offences in divs 270 and 271. It suggests that law reform on this matter is warranted, not only to address compliance with international law, but also to contend with challenges in the implementation of these laws connected to the meaning and role of consent.