Compensation, Punishment and Victims of Crimes Against Humanity in Australia
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I Introduction
Justice, when confined to the punishment of offenders of crimes against humanity alone, risks neglecting those it purports to protect. In Australia, prosecutions for slavery, servitude, and human trafficking have tended to prioritise deterrence over meaningful restitution for victims. While courts emphasise denunciation, survivors are left navigating complex legal systems with little access to compensation. The absence of a national compensation scheme reinforces a framework in which victims become instruments of criminal trials rather than rights-bearing individuals entitled to support. International human rights law agreements dictate that effective remedies are essential for State compliance. Therefore, bridging the gap between punishment and restitution is essential if Australia is to align its domestic response with survivor needs and global human rights standards.
II Deterrence & Punishment
Australian cases involving servitude, human trafficking, and slavery reflect a model of justice that prioritises deterrence and punishment through criminal trials. At the national level, Australia does not have a dedicated compensation scheme for victims of crimes of this kind.[i] Victim recovery can be enhanced by restitution.[ii] Often, the time-consuming and revictimising process of litigation is further complicated by ‘insufficient evidence [and] limited access to information.’[iii] Establishing a national victim trust fund, alongside improving access to civil remedies, would significantly strengthen support for survivors. Such measures would promote financial independence, reduce re-traumatisation, and empower victims by giving them greater control over their outcomes. They would also foster accountability beyond the criminal justice system, ensuring a more holistic and victim-centred approach to justice.
The criminal justice approach neglects and disenfranchises victims. Access to support must be paramount to achieve justice. While this framework generates public awareness that perpetrators will be held accountable for their actions, the focus on deterrence and punishment exacerbates trauma and limits the victim’s choice in forging their own path for recovery.[iv] It demonstrates a narrow interpretation of justice that does not employ strategies to help survivors access adequate compensation, long-term support, and recognition of their autonomy. Ultimately, a survivor becomes a depersonalised tool of criminal investigation.[v]
In R v McIvor, the Court emphasised deterrence as a central consideration in sentencing offenders for slavery.[vi] In doing so, Williams DCJ took into account a range of factors, including the injury, loss or damage resulting from the offence, the character, antecedents and condition of the accused, the probable effect that the sentence would have on the offender’s family, the harm suffered by the victims, and the level of control and exploitation forced on the victims.[vii] This holistic consideration in sentencing creates a more balanced justice system that both punishes severe forms of exploitation and has the potential to restore victims’ lives. Cooperation and remorse significantly influenced the sentence imposed in DS v R, who was convicted of possessing a slave and engaging in slave trading.[viii] In the appeal, Chernov JA conveyed that ‘general deterrence’ was consequential.[ix] In these cases, courts tend to be apprehensive of handing down a double punishment for offences of ‘essentially the same conduct.’[x] Certainly, in Nantahkum v The Queen, the majority held that a slavery offence was elevated to reflect all criminality, including allowing a person to work while knowing or being reckless to the fact they are an unlawful non-citizen, thus ‘no sentence [was] imposed for the immigration offence.’[xi] Due to judicial error, the judgment reduced the imprisonment of immigration offences and intentionally possessing a slave by several years due to ‘overlapping elements’ in the contraventions.[xii] Chief Justice Higgins found that the offending and the penalty were disproportionate[xiii] and Justice Dowsett held that the offences charged constituted a single continuous course of conduct resulting in the cumulative sentences imposed, risking double punishment.[xiv] In Australia’s first case of aggravated servitude, Director of Public Prosecutions v Javier Miller (a pseudonym), civil action for damages was pursued.[xv] A recurring theme across the aforementioned cases is the lack of compensation or restitution for the victim(s). The judiciary has not substantially progressed in two decades, as no compensation was awarded to victims of sexual servitude in the 2006 case of Regina v Joha Sieders & Somsri Yotchomchin.[xvi] To effect real justice, the judiciary and legislature must have a role in reform that accentuates a victim’s right to be informed of options of reparation and compensation available to them.
III Statutory Interpretation
Australia reached a significant milestone in advancing a human rights–based approach to justice with its first conviction for slavery offences in R v Tang.[xvii] The majority adopted a purposive approach, rather than applying a purely literal interpretation of the relevant statute and international framework. Chief Justice Gleeson defined the indicia of slavery with reference to the International Criminal Tribunal’s appeal decision in Prosecutor v Kunarac, which includes factors such as control of movement, physical environment and measures taken to prevent escape.[xviii] Justice Hayne referred to the victim’s freedom of choice in determining whether slavery, as opposed to mere exploitation, had taken place and His Honour drew on United States jurisprudence, particularly involuntary servitude under the Thirteenth Amendment to determine whether a slave was ‘free’.[xix] However, Kirby J, dissenting, found that a broad interpretation of slavery, aligned with international law, could lower the traditionally high threshold required to convict someone of a very serious crime.[xx] In their joint judgment in R v A2, Kiefel CJ and Keane J held that the broad statutory interpretation in R v Tang was ‘necessary…to give effect to the provision’s purpose’ and ‘preferred over its ordinary or grammatical meaning.’[xxi] Tang has clearly been influential in Australian Courts, guiding cases against human rights and statutory interpretation. However, breaches of human rights require a remedy in accordance with international law, and Tang overlooked the victims’ rights to restitution.
Comparatively, the case of Siliadin v France adopted a ‘truly narrow interpretation’ of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which excluded the travaux prepartoires from the 1926 Slavery Convention in its decision-making.[xxii] The applicant had been brought to France under false pretences of obtaining schooling and instead was forced to work as an unpaid housemaid.[xxiii] Similarly to many cases of slavery, servitude and trafficking, her passport was taken.[xxiv] However, the Court could not declare that slavery and servitude were offences under French criminal law and found that the ‘proper’ meaning of slavery encompassed absolute control as true chattel slavery involves being treated as someone’s property.[xxv]
IIV Situating Australia on the International Scale
Human rights are sine qua non for a just and equitable society, the foundation upon which all other freedoms depend. The principle of non-derogation is enlivened in cases involving slavery and human trafficking, as States owe protection erga omnes as a ‘basic human right.’[xxvi] Unlike other regions, Australia does not have regional instruments that dictate rights-based, victim-centred approaches to support victims of trafficking, slavery and servitude on reasonable grounds.[xxvii] The European Union’s Anti-Trafficking Directive, explicitly requires that States work together to ‘identify victims at an early stage’,[xxviii] encourages ‘non-prosecution of, and the non-application of penalties to, victims of trafficking’ when they have been compelled commit a crime,[xxix] provides that these nations should also support victims by ensuring access to ‘shelters and safe accommodation’,[xxx] and implores States to ‘establish a national victims fund’ for appropriate victim compensation.[xxxi] While Australia lacks this framework, Parliament has enacted legislation consistent with the Palermo Protocol of which it is a signatory.[xxxii] For example, by criminalising human trafficking and debt bondage,[xxxiii] broadening definitions of forced labour in statute,[xxxiv] and establishing an independent statutory office holder in the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023 (Cth).
However, definitions of slavery, servitude, and human trafficking have differed across nations. Within our own borders, its historical evolution has led to circular reasoning and self-referential codification of its meanings. While the 1926 Slavery Convention defined slavery as ‘the status or condition of a person over whom any or all the powers attaching to the right of ownership are exercised’,[xxxv] the word slave in Australia’s Criminal Code at 270.3 derives its meaning from slavery in s 270.1 which holds that it 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.’ Omission of the word ‘status’ in the Australian federal legal system translates to our definition being ‘limited to de facto slavery’, that is, the fact that a person is ‘in the condition of being a slave without recognition of that effect.’[xxxvi] The International Criminal Court has stressed that the rights of a survivor are imperative for protection and compensation. The essential foundations are that if someone’s rights are violated, they must have a practical, effective remedy and they must have access to ‘proceedings [in which] their personal interests are affected’ before an independent decision-maker.[xxxvii] Information must be disseminated in a way that the victim understands, at all times, which protects their moral worth, personal autonomy, and opportunities for support.[xxxviii]
In the case of Rantsev v Cyprus and Russia, a father of a human trafficking victim was awarded 40,000 Euros for the Cypriot government’s failure to take steps to protect the victim from trafficking and investigate her death.[xxxix] A case involving forced labour and human trafficking was brought to the European Court of Human Rights following Bangladeshi migrants being recruited to work without permits in harsh conditions in Greek strawberry fields.[xl] The Court awarded each applicant compensation[xli] and reiterated the obligation conferred upon Greece to establish a victim compensation fund as per Article 15 of the Anti-Trafficking Convention.[xlii] Non-pecuniary damage for ‘serious long-term emotional and psychological harm’ was awarded to the applicant in I.C. v Moldova, a case of labour exploitation, human trafficking, and sexual abuse of an intellectually disabled woman that was placed with a family following release from a residential neuropsychiatric State institution.[xliii] A landmark decision in Australian jurisprudence was that of Kannan v R, in which the victim of forced labour, slavery, and ‘oppressive servitude’[xliv] was awarded a compensation order of over $480,000 in respect of unpaid wages.[xlv] Despite the large award, psychological damages or pain and suffering were overlooked.
V Remedies
The United Nations Human Rights Committee has clearly evinced that States have an obligation to provide reparations to victims held in slavery, servitude or who are trafficked, as their inviolable rights and freedoms are violated to a profound extent.[xlvi] Inconsistency and ‘unfair outcomes’ are produced by Australia relying on state and territory schemes to compensate victims of federal crimes, depending on whether a victim has grounds to seek compensation, and the quantum will differ across states.[xlvii] While victims of modern slavery can obtain pecuniary compensation under section 21B of the Crimes Act 1914 (Cth), this is subject to the court's discretion, and it has rarely been invoked.[xlviii]
Access to information about how to obtain civil remedies and remedies themselves remains elusive to a majority of victims. Paternalistic laws ‘further confine agency’ by treating victims as passive objects of protection rather than decision-makers owed safety that does not involve forms of conditional compliance.[xlix] For example, on a federal level, the Justice Support stream that assists with Medicare, legal services, and income, is only available to those ‘willing to participate in a criminal justice process.’[l] Additionally, in New South Wales, a paternalistic condition operates under the Victim Support Scheme, as the determination on approving or reducing financial assistance can depend on whether the victim refused or failed to cooperate with the investigation or legal process.[li] The interventionist approach to supporting victims in rebuilding their lives transcends trauma-focused, interest-driven support to unjustified autonomy-limiting welfare. The dichotomy between free agency and a victim being incapable of enjoying such agency operates on misunderstandings of exploitation and a victim as a rights-bearer.[lii] Migrants, or individuals fearful of their right to stay in the country being jeopardised, may be more motivated and cooperative in investigations out of intimidation, which risks coercion.[liii]
VI Conclusion
Australian cases are emblematic of the Court’s dedication to a criminal justice approach to cases of servitude, slavery and human trafficking. While punishing the offender sends a strong message to the general public that conduct of this kind is grave and will not be tolerated, it overlooks the rights and entitlements of victims. In accordance with international law, R v Tang set a significant precedent in its broad interpretation of slavery that strengthened the prosecutorial capacity to respond to modern exploitation. However, it did not meaningfully address victim restitution, thus highlighting the ongoing tension between punishment and restorative justice in Australian human rights cases. There are a plethora of cases from the European Court of Human Rights that have specifically ordered compensation for victims, and the need for States to establish a compensation fund should be adopted in Australia to adequately support survivors. State and territory compensation schemes provide insufficient restitution, notably due to their inconsistency across regions. The agency and rights of victims must be upheld, and a federal compensation scheme introduced for cohesive and appropriate reparations.
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References
[i] Patrick Pantano and Sonia Byrnes, ‘National Compensation Scheme for Victims of Modern Slavery a Watershed Recommendation’, Law Council of Australia (Media Release, 8 December 2017) < https://lawcouncil.au/media/media-releases/national-compensation-scheme-for-victims-of-modern-slavery-a-watershed-recommendation>.
[ii] Januar Mahendra, Supanto Supanto, and Devi Triasari, ‘The Role of Victim Trust Funds in Addressing Restitution Human Trafficking: Lessons from US and Europe’ (2025) 1(1) Indonesian Journal of Crime and Criminal Justice 89, 101.
[iii] Ibid.
[iv] Saba Demeke, ‘a Human Rights-Based Approach for Effective Criminal Justice Response to Human Trafficking’ (2024) 9(4) Journal of International Humanitarian Action 1, 2.
[v] Ibid.
[vi] R v McIvor (2010) 12 DCLR (NSW) 77, 80–84.
[vii] Ibid 84–86.
[viii] R v DS (2005) 191 FLR 337, 345.
[ix] Ibid 344.
[x] McIvor (n 6) 86.
[xi] Nantahkum v The Queen (2013) 279 FLR 148, 148.
[xii] Ibid 167–168.
[xiii] Ibid 154.
[xiv] Ibid 174–175.
[xv] Director of Public Prosecutions v Javier Miller (a pseudonym) [2025] VSC 164.
[xvi] Regina v Joha Sieders & Somsri Yotchomchin [2006] NSWDC 184, [2].
[xvii] R v Tang (2008) 237 CLR 1, 54-65.
[xviii] Ibid 18 referencing Prosecutor v Kunarac [2001] ICTY 2.
[xix] Irina Kolodizner, ‘R v Tang: Developing an Australian Anti-Slavery Jurisprudence’ (2009) 31 Sydney Law Review 487, 493-494.
[xx] Tang (n 17) 53.
[xxi] R v A2 (2019) 269 CLR 507, 527.
[xxii] Siliadin v France (Application No. 73316/01) ECHR 2005-VII; Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).
[xxiii] Ibid [14]-[15], [92].
[xxiv] Ibid [11].
[xxv] Ibid [140].
[xxvi] Stephen Tully, ‘Sex, Slavery and the High Court of Australia: The Contribution of R v Tang to International Jurisprudence’ (2010) 10 International Criminal Law Review 403, 404.
[xxvii] Chrisina Kösl, Annette Korntheuer and Janusz Surzykiewicz, ‘Not Vulnerable Enough for Victim Support?! Advancing the Formal Identification for Labour Exploitation Through a Multidimensional Vulnerability Approach’ (2026) 32(1) International Review of Victimology 18, 20.
[xxviii] Directive (EU) 2024/1712 of the European Parliament and of the Council of 13 June 2024 amending Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victim’s PE/14/2024/REV/1, (15).
[xxix] Ibid (14).
[xxx] Ibid (16).
[xxxi] Ibid (25).
[xxxii] Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime, UN Doc A/RES/55/25 (15 November 200) (Palermo Protocol).
[xxxiii] Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth) div 271.
[xxxiv] Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) s 270.6.
[xxxv] International Convention to Suppress the Slave Trade and Slavery, opened for signature 2 September 1926, 60 LNTS 253 (entered into force 9 March 1927) art 1.
[xxxvi] Tully (n 26) 408.
[xxxvii] Demeke (n 4) 5.
[xxxviii] Ibid.
[xxxix] Rantsev v Cyprus and Russia (Application No 25965/04) (unreported) 7 January 2010, ECtHR [342].
[xl] Chowdury and Others v Greece (Application No 21884/15) (unreported) 30 March 2017, ECtHR [3]-[5].
[xli] Ibid [134].
[xlii] Ibid [126].
[xliii] I.C. v the Republic of Moldova (Application No. 26436/22) (unreported) 27 February 2025, ECtHR [1], [227]-[229].
[xliv] Kannan v R [2023] VSCA 58, [53].
[xlv] ‘Woman sentenced for perverting the course of justice after landmark slavery case’, Commonwealth Department of Public Prosecutions (Case Report, 2023) https://www.cdpp.gov.au/case-reports/woman-sentenced-perverting-course-justice-after-landmark-slavery-case.
[xlvi] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 2(3).
[xlvii] Frances Simmons, Jennifer Burn and Fiona McLeod, ‘Modern Slavery and Material Justice: The Case for Remedy and Reparation’ (2022) 45(1) University of New South Wales Law Journal 148, 166.
[xlviii] Ibid 169.
[xlix] Kösl (n 27) 26.
[l] Support for Trafficked People Program, Australian Government Department of Social Services (Web Page, 2025) <https://www.dss.gov.au/human-trafficking-and-slavery/support-trafficked-people-program?utm_source=chatgpt.com>.
[li] Victims’ Rights and Support Act 2013 (NSW) s 44(1)(e).
[lii] Kösl (n 27) 23.
[liii] Demeke (n 4) 3.