Commonwealth Director of Public Prosecutions v ELIJAH Falco (a pseudonym)[1]

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0097

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
ELIJAH FALCO (A PSEUDONYM)[1]	Respondent

[1]To avoid any risk of prejudice to the administration of justice, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	PRIEST, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2024
DATE OF JUDGMENT:	23 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 247
JUDGMENT APPEALED FROM:	DPP (Cth) v [Falco] [2024] VCC 750 (Judge Cahill)

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CRIMINAL LAW – Interlocutory Appeal – Organising or facilitating the exit of persons from Australia by deception contrary to s 271.2(1A) of the Criminal Code (Cth) – Elements of the offence – Whether trial judge erred in holding that deception must involve a risk of exploitation – Appeal allowed.

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Counsel
Applicant:		Mr OP Holdenson KC with Mr J Manning
Respondent:		Dr G Boas and Mr J O’Connor
Solicitors
Applicant:	Commonwealth Director of Public Prosecutions
Respondent:	James Dowsley & Associates

PRIEST JA
NIALL JA
TAYLOR JA:

Introduction

An indictment filed in the County Court by the Commonwealth Director of Public Prosecutions charges the applicant with organising and facilitating the exit of another person from Australia by deception (one charge – charge 1), contrary to s 271.2(1A) of the Criminal Code (Cth) (‘the Code’).[2]
[2]The indictment also contains two charges of blackmail (charges 2 and 3), contrary to section 87 of the Crimes Act 1958 (Vic).
Pre-empanelment, an issue has arisen as to whether, on a charge under s 271.2(1A) of the Code the prosecution must prove that the deception alleged involved a risk of exploitation of another person.
By a ruling delivered on 28 May 2024 (‘the ruling’ or ‘the interlocutory decision’), the trial judge ruled that the prosecution ‘must prove the use of deception involved a risk of exploitation of the person deceived’.
Pursuant to certification under s 295(3)(b) of the Criminal Procedure Act 2009, granted by the trial judge on 3 June 2024, the Commonwealth Director of Public Prosecutions seeks leave to appeal against the interlocutory decision on four grounds that contend that the trial judge erred in determining that:
1… s 271.2(1A)(b) of the Criminal Code (Cth) requires proof that the person’s use of deception [where ‘deception’ is relied upon by the prosecution] must involve a risk of the exploitation [as defined in s 271.1A of the Criminal Code (Cth)] of the person deceived.
2… an offence contrary to s 271.2(1A) of the Criminal Code (Cth) requires proof that the use of deception [where ‘deception’ is relied upon by the prosecution] must involve a risk of the exploitation [as defined in s 271.1A of the Criminal Code (Cth)] of the person deceived.
3… s 271.2(1A)(b) of the Criminal Code (Cth) requires proof that the person’s use of deception [where ‘deception’ is relied upon by the prosecution] is a means of trafficking, namely, that the use of deception involves a risk of the exploitation [as defined in s 271.1A of the Criminal Code (Cth)] of the person deceived.
4… an offence contrary to s 271.2(1A) of the Criminal Code (Cth) requires proof of a person’s participation in the ‘chain of exploitation’ [as defined in s 271.1A of the Criminal Code (Cth)] of another person.
In our opinion, the judge’s ruling is wrong in the manner asserted by the proposed grounds of appeal. Leave to appeal must be granted; the appeal allowed; and the interlocutory decision set aside. Our reasons follow.

Background facts

In order to understand the issues raised in this application, it is necessary to summarise the facts relied upon by the prosecution.
The respondent in the present application, who is an Australian citizen, married ‘SS’, an Indonesian national, in an Islamic ceremony in Indonesia on 24 November 2018.
After they were married, the respondent returned to Australia, and SS applied for a visa to come to Australia. While her application was being processed, SS remained in Indonesia, the respondent returning to visit her in March and May 2019.
On 7 August 2019, SS was granted a three-month visitor visa, and, on 23 September 2019, flew to Australia and moved into a home with the respondent in Shepparton.
The respondent married SS under Australian law at their home on 19 December 2019. SS applied for a partner visa the following day, sponsored by the respondent. A migration agent charged fees in the order of $14,500.
About three months later, on 6 March 2020, SS started work at a Shepparton produce business where the respondent was employed. Her weekly wages of around $1,200 were paid into a bank account held jointly with the respondent.
On 7 June 2021, SS was granted a partner visa. While she was living and working in Australia, she developed a working level of English.
During the COVID-19 pandemic, Australia closed its borders. SS alleges that she told the respondent that she wanted to return to Indonesia with him for a holiday when international travel resumed.
SS asserts that, in November 2021, after international borders had reopened, the respondent encouraged her to fly to Indonesia to visit family. She claims that she told the respondent that if she left Australia she was afraid she would not be able to return; but that he assured her she would be able to return, telling her that in June the two of them would take a holiday in Indonesia together.
On 16 November 2021, the respondent and SS went to the Shepparton Flight Centre together and booked a one-way air ticket to Jakarta for SS, the fare allegedly being paid by the respondent. SS claims that, as she understood it, they both made the decision to purchase a one-way fare because of the uncertainty around pandemic-related lockdowns in Indonesia.
A few days later, on 19 November 2021, SS flew to Indonesia, with $900 spending money, and went into hotel quarantine. After completing quarantine, SS stayed with her sister.
While in Indonesia, SS exchanged ‘WhatsApp’ messages with the respondent. On 23 November 2021, the respondent told her he could not continue their relationship; and, on 25 November 2021, he told her he wanted a divorce. SS replied that she loved him and would do anything for him. She said she wanted to come back to Australia, and asked the respondent to book her a return ticket. He refused, and asked her to understand that he wanted a divorce. The respondent told SS that he was with someone else, and said she should stay with her family. On 30 November 2021, however, SS borrowed money from her niece to buy a return plane ticket.
A couple of days later, on 2 December 2021, the respondent sent SS a message denouncing their Islamic marriage. SS responded by accusing him of dumping her by sending her back to Indonesia on the pretext she would see her family.
On 4 December 2021, SS flew into Melbourne, and took an ‘Uber’ to Shepparton. When she arrived, no one was at the home she had shared with the respondent. She found another woman’s personal items in her room, and found that her own personal items had been removed. When the respondent arrived home, he told SS she could not stay. He told her he had packed her belongings and put them in storage to send to her in Indonesia. The respondent asked SS to call a friend to pick her up, but she refused. He then called the police; and, after they arrived, he asked them to remove her.
SS left the home with police. She called a mutual work friend who agreed to give her accommodation. The next day, the respondent offered to take SS’s belongings to her. When the friend spoke to the respondent at work, he told her that he had divorced SS while she was overseas because then she would be closer to her family.
Throughout December 2021 and January 2022, the respondent and SS exchanged WhatsApp messages.
On 22 February 2022, the respondent sent two messages to SS on ‘TikTok’, stating that he wanted half of the cost of her visa application if she was going to stay in Australia, otherwise, he would cancel her visa and she would be deported.[3]
[3]These communications are the foundation of charges 2 and 3, blackmail.

The ruling

Prior to a jury being empanelled, the parties requested that the trial judge rule on the construction of s 271.2(1A), in order to determine whether, on the agreed facts, the respondent could be convicted of charge 1.
For the purposes of his ruling, the judge noted that the prosecution case is that the respondent and SS together booked her flight to Indonesia, and that when they did, the respondent deceived SS into believing that she would go to Indonesia for two or three weeks and he would arrange her return. Sometime before SS left, the prosecution alleges, the respondent intended that SS would travel to Indonesia, where she would be with her family, so he could end their marriage. For the purposes of the ruling, the respondent did not dispute these allegations, but contended that the conduct alleged by the prosecution cannot prove the charge.
Counsel for the respondent submitted to the judge that, notwithstanding the absence of express words in the subsection, s 271.2(1A) requires proof of the use of deception for the purpose of exploitation of a person. To interpret deceive as to mislead as to any fact, as the prosecution contended, would lead to impermissibly absurd, capricious, irrational or unjust results. Counsel submitted that the Explanatory Memorandum to the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 (Cth) (‘Explanatory Memorandum’) explains that Division 271 — under which subsection 271.2(1A) falls — criminalises trafficking in persons and fulfils Australia’s obligations under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (‘the Protocol’). Article 3 of the Protocol provides that, for the purposes of the Protocol, ‘Trafficking in persons’
shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs …[4]
[4]Emphasis added.
The respondent’s counsel submitted that the legislature did not intend to eschew exploitation as an element of the offence created by s 271.2(1A), because to do so would be incompatible with international law. As the Explanatory Memorandum makes clear, the provision is not intended to exclude the requirement of an exploitative purpose, but to criminalise the conduct of an offender who was ‘not involved in the final exploitation of a trafficking victim’.
Counsel for the prosecution, the judge noted, submitted that, giving the words of the subsection their ordinary meaning, the subsection creates an offence which does not require proof of the use of deception for the purpose of exploitation. The prosecution submitted that, by introducing a definition of deceive which does not require the exploitation of any person; and having regard to other provisions which expressly require proof either that the offender was aware of the risk of exploitation (ss 271.2(1B) and (1C)), or used deception for the purposes of exploitation (ss 271.2(2) and (2A)), the legislature made it clear that exploitation is not an element of the offence under s 271.2(1A). Since this interpretation does not result in any manifestly absurd or unreasonable outcomes, there is no need to resort to extrinsic material to ascertain the meaning of the provision. In any event, there is nothing in the extrinsic materials which would justify interpretation of the provision to require proof of the use of deception for the purposes of exploitation.
In analysing the competing submissions of the parties, the judge said:
[60]If, as the Prosecution contends, the ordinary meaning of subsection 272.2(1A) is a person who arranges the movement of another out of Australia by use of deception, without qualification, commits an offence of trafficking in persons, I am satisfied it does lead to manifestly absurd or unreasonable outcomes.
Citing Miller v Minister for Immigration, Citizenship and Multicultural Affairs,[5] the judge said that ‘courts must avoid the attribution of a legislative intention which produces outcomes which appear to be ‘absurd’ or ‘capricious’ or ‘irrational or unjust’’. By reference to Project Blue Sky Inc v Australian Broadcasting Authority,[6] the judge noted that the duty of the court ‘is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’. The judge cited the following passage from SZTAL v Minister for Immigration and Border Protection:[7]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.[8] Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.[9] This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[10]
[5](2024) 98 ALJR 623, 630 [37].
[6](1998) 194 CLR 355, 384 [78].
[7](2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ).
[8]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47].
[9]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
[10]Footnotes from the original, omitted from the judge’s ruling, have been reinstated.
The judge said that it was clear that the mischief that s 271.2(1A) is intended to remedy is ‘trafficking in persons’. The Explanatory Memorandum indicates that Parliament intended, by Division 271, to enact offences which accord with the Protocol’s definition of trafficking in persons. Having set out the Protocol’s definition of ‘trafficking in persons’ extracted above, the judge said that the definition contains three elements: first, the act, which includes the movement of a person; secondly, the means, which includes the use of deception; and, thirdly, the purpose, exploitation. By recourse to the Supplementary Explanatory Memorandum to the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004, and the Second Reading speech, the judge said:
It is clear, subsections 271.2(1) and (1A) were created to capture circumstances where a person is not involved in the final exploitation of a trafficking victim, but organises or facilitates the transport of a trafficking victim through coercion, threat or deception.
Ultimately, the judge said that
it is clear subsections 271.2(1) and (1A), like 271.5(1) were created to target persons who participate in the ‘chain of exploitation’, for example, a recruiter or broker who is working for a human trafficker.
[77]    In summary:
(a)Subsection 271.2(1A) creates an offence of trafficking in persons under division 271;
(b)The object of Division 271 is to criminalise human trafficking in accordance with Australia’s treaty obligations;
(c)Subsection 271.2 (1A) does not require proof of a person’s exploitation of another, however, it does require proof of a person’s participation in the ‘chain of exploitation’ of a person.
[78]    Subsection 271.2 (1A) has two conduct elements:
(a)an act: in this case, the movement of a person out of Australia; and
(b)      the means: in this case, the use of deception.
[79]Parliament did not intend ‘deceive’, for the purposes of Division 271, to mean ‘mislead as to any fact’. To do so, would lead to a manifestly absurd and unreasonable result, that is, the criminalisation of conduct which, according to ordinary legal standards, is not a crime.
[80]Having regard to the text of the provision, its context and purpose, I am satisfied, in order to establish an offence under subsection 271.2(1A), the Prosecution must prove, in relation to the second element of the offence, the means are means of trafficking, that is, the Prosecution must prove the use of deception involved a risk of exploitation of the person deceived.

The applicant’s submissions in this Court

In this Court, counsel for the applicant submitted that, in the prosecution of an offence under s 271.2(1A) which relies on the use of ‘deception’, it is not necessary for the prosecution to prove that the deception involved a risk of the exploitation of another person. The judge erred in ruling to the contrary.
For the purposes of s 271.2(1A)(b), counsel submitted, proof that a person used deception does not require the prosecution to establish that there was a risk of exploitation of the person deceived. Rather, the prosecution must prove that the person misled another person as to fact (including the intention of any person) or as to law, by words or other conduct. Six contextual indicators support that construction.
First, the clear language employed in s 271.2(1A)(b) does not require a nexus to a risk of exploitation. ‘Deception’ in s 271.2(1A) must take its meaning from s 271.1, which says nothing of exploitation, and, notably, is not linked to the definition of ‘exploitation’ in s 271.1A.
Secondly, the use of the word ‘deception’ throughout Subdivision B of Division 271 of the Code similarly is not confined in scope to matters involving the exploitation of a person, so much being plain from the text of ss 271.2(2) and 271.2(2A). In each case, the second element sets out the necessary subject matter and content of the ‘deception’; that is, the ‘deception’ must be about (and confined to) a particular matter of ‘fact’ described within those provisions. One such matter is that the entry or exit ‘will involve the other person’s exploitation’. That qualification demonstrates that where ‘deception’ appears elsewhere within Subdivision B, it carries a broader scope and meaning.
Thirdly, when the Parliament has sought to confine or limit the subject-matter and content of a ‘deception’ in Division 271, it has done so in clear terms. By way of example, the qualification in ss 271.2(2)(b) and 271.2(2A)(b) of a deception about the fact that the entry or exit ‘will involve the other person’s exploitation’ is clearly unnecessary if ‘deception’ in Subdivision B inherently means a deception involving another person’s exploitation.
Fourthly, the judge’s construction requires additional words to be read into s 271.2(1A), where to do so would depart too far from the language used by the legislature.
Fifthly, the mischief of organising or facilitating a person’s exit from Australia by the use of deception, which will involve the person’s exploitation, is already criminalised by s 271.2(2A). If the trial judge’s construction is correct, s 271.2(1A) would be entirely superfluous. It would produce the absurd result that both ss 271.2(1A) and (2A)), which carry the same maximum penalty, would criminalise exactly the same conduct.

Sixthly, within Subdivision B, absolute liability attaches only to the offences in ss 271.2(1)(c), 272.2(1A)(c) and 271.5(1)(c). This again serves to emphasise that, for example, the offence in s 272.1(1A) is intended to capture offending distinct from the offence in s 272.1(2A).
Counsel for the applicant submitted that the judge erred by beginning with, and focusing upon, the extrinsic materials surrounding the introduction of the relevant provisions in Subdivision B, including the Protocol. That approach is contrary to the recognised process of statutory construction.
Finally, counsel submitted that, having regard to the six contextual indicators relied upon, Parliament has clearly indicated when the ‘exploitation’ of another is to be regarded as a necessary element of proof in the context of the ‘deception’ of that person. It has not done so for the offence in s 271.2(1A).

The respondent’s submissions

The respondent’s counsel submitted in this Court that the following matters establish that the trial judge’s ruling was correct, so that leave to appeal the interlocutory decision should be refused.
First, the judge recognised that s 271.2(1A) is an offence of ‘trafficking in persons’. Therefore, the offence in s 271.2(1A) — like the other offences of ‘trafficking in persons’ contained in Subdivision B — must be construed on the basis that it creates an offence which can properly be called a ‘trafficking in persons’ offence; that is, one directed to the trading in, or dealing in, a person who is thereby exploited. The word ‘deception’ in s 271.2(1A)(b) must be construed accordingly, such that the offence answers the statutory description as one of ‘trafficking’ in persons.
Secondly, the context and purpose of s 271.2(1A) must be considered at the same time as the statutory text. Just as s 271.2(1A) must be interpreted so that it answers the description of an offence of ‘trafficking in persons’, the use of that phrase also indicates the statutory purpose, viz., to combat the problem, or mischief, of such trafficking. That statutory purpose is evident from the text of the statute itself, and is legitimately confirmed and supplemented by reference to extrinsic materials.
Thirdly, the judge’s conclusion that the applicant’s construction of s 271.2(1A) leads ‘to manifestly absurd or unreasonable outcomes’ is correct.
Fourthly, as the trial judge concluded, extrinsic materials indicate that Parliament intended, by Division 271, to enact offences which accord with the Protocol’s definition of trafficking in persons. Context deriving from extrinsic materials legitimately informs the construction of s 271.2(1A), given its ambiguity and the ‘manifestly absurd’ results which follow from the applicant’s construction.
Fifthly, while the definition of ‘deceive’ in s 271.1 of the Code is not expressly limited to any category of fact as to which a person may be misled, the definition is an aid to construction which should not be used to negate the evident policy or purpose of s 271.2(1A) as an offence of trafficking in persons, as informed by the extrinsic materials.
Sixthly, if the trial judge’s ruling requires s 271.2(1A) to be read as if it contained additional words, so much would address the manifestly absurd consequences of not doing so, in a manner which is not too much at variance with the language in fact used by the legislature.
Seventhly, s 271.2(1A) carries the same maximum penalty as other provisions creating offences of ‘trafficking in persons’, indicating that the offence is intended to be of at least broadly equivalent objective gravity to those provisions. Further, the fact that s 271.2(1A) exposes an offender to the risk of a lengthy term of imprisonment means that the ambiguity in its interpretation must be resolved in favour of the respondent.
Eighthly, the result element in s 271.2(1A)(c) — to which absolute liability applies — provides no support for the proposition that s 271.2(1A) was intended to capture conduct entirely removed from the mischief of ‘trafficking in persons’. Section 271.2(2A) does not contain such a result element and expressly limits the range of facts to which the relevant ‘deception’ alleged might relate.

Discussion

Charge 1 on the indictment is formulated as follows:
The Director of Public Prosecutions for the Commonwealth of Australia, who prosecutes in this behalf for His Majesty The King, charges that between about the 3^rd day of November 2021 and the 19^th day of November 2021 at Shepparton and elsewhere in Victoria, [ELIJAH FALCO] organised and facilitated the exit of [SS] from Australia, and [ELIJAH FALCO] used deception, namely by misleading [SS] as to facts including [ELIJAH FALCO’s] intentions, including that he was arranging for [SS’s] travel to Indonesia for two to three weeks and after that he would arrange for her re-entry to Australia, and that they would later travel to Indonesia together in June 2022, and the use of that deception resulted in [ELIJAH FALCO] obtaining [SS’s] compliance in respect of that exit.
Statement of Offence – Organise or facilitate the exit of another person from Australia by deception, contrary to sub-section 271.2(1A) of the Criminal Code (Cth).
It may thus be seen that, as drafted, the charge alleges that the respondent organised and facilitated the exit of SS from Australia, and used deception, by misleading SS as to facts.
Chapter 8 of the Code (ss 268.1–279.7) is concerned with ‘Offences Against Humanity and Related Offences’. In turn, Division 271 (ss 271.1–271.13) of Chapter 8 is concerned with ‘Trafficking in Persons’. And Subdivision B of Division 271 (ss 271.2–271.7) is headed ‘Offences relating to trafficking in persons’. Relevantly, s 271.2(1A) — itself headed ‘Offence of trafficking in persons’ — provides:
271.2 Offence of trafficking in persons
…
(1A) A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit of another person from Australia; and
(b) the first person uses coercion, threat or deception; and
(c) that use of coercion, threat or deception results in the first person obtaining the other person’s compliance in respect of that exit or proposed exit.

Penalty: Imprisonment for 12 years.

Subsections (1), (1A), (1B), (1C), (2), (2A), (2B) and (2C) of s 271.2 set out a variety of circumstances in which a person ‘commits an offence of trafficking in persons’. Significantly, in contradistinction to the provisions of s 271.2(1A), ss 272.2(2)(b) and (2A)(b) relate specifically to situations which involve a person’s exploitation, defined in s 271.1A as follows:
271.1A Definition of exploitation
For the purposes of this Division, exploitation, of one person (the victim) by another person, occurs if the other person’s conduct causes the victim to enter into any of the following conditions:
(a) slavery, or a condition similar to slavery;
(b) servitude;
(c) forced labour;
(d) forced marriage;
(e) debt bondage.
A number of definitions are set out in s 271.1, which provides (so far as relevant):
271.1 Definitions

In this Division:

coercion has the same meaning as in Division 270 (see section 270.1A).
…
deceive means mislead as to fact (including the intention of any person) or as to law, by words or other conduct.
Note: Deception has a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
exploitation has the meaning given by section 271.1A.
threat has the same meaning as in Division 270 (see section 270.1A).

Section 270.1A defines coercion as follows:
coercion includes coercion by any of the following:
(a) force;
(b) duress;
(c) detention;
(d) psychological oppression;
(e) abuse of power;
(f) taking advantage of a person’s vulnerability.
On its face s 271.2(1A) creates a species of the offence of trafficking in persons which (so far as relevant) has the following elements:
(a) the first person [the respondent] organises or facilitates the exit … of another person [SS] from Australia; and
(b) the first person uses … deception; and
(c) that use of … deception results in the first person obtaining the other person’s compliance in respect of that exit ...[11]
[11]Absolute liability attaches to this element. See s 271.2(3).
Thus, for the purposes of charge 1 as formulated, the elements that the prosecution must prove are:
·first, the respondent organised and facilitated the exit of SS from Australia;
·secondly, the respondent used deception; that is, misled SS as to facts (they being the respondent’s intentions, including that he was arranging for SS’s travel to Indonesia for two to three weeks and after that he would arrange for her re-entry to Australia, and that they would later travel to Indonesia together in June 2022 ); and,
·thirdly, that use of that deception resulted in the respondent obtaining SS’s compliance in respect of that exit.
As we have said, the respondent’s counsel submitted that s 271.2(1A) must be construed on the basis that it creates an offence which may properly be called ‘an offence of trafficking in persons’ — that is, one directed to the trading in, or dealing in, a person who is thereby exploited — and, to like effect, the judge held that in order to establish an offence under subsection 271.2(1A), the prosecution must prove the use of deception involved a risk of exploitation of the person deceived.
We do not agree.
In Northern Territory v Collins, Crennan J summarised the principles which must inform the construction of s 271.2(1A):[12]
The applicable principles of construction can be shortly stated. Construction must begin with a consideration of the text itself. The meaning of the text cannot always be determined in isolation from its context, which includes the general purpose and policy of the provision, in particular the mischief which the statute was designed to remedy. Secondary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision, not least because such material may confuse what was ‘intended ... with the effect of the language which in fact has been employed’.
[12](2008) 235 CLR 619, 642 [99] (citations omitted).
As the authorities make clear, in construing the language of the relevant provision, it is necessary to have regard to its context — including its historical context — and purpose.[13] The meaning that must be given to s 271.2(1A) is its contextual meaning; so that the text of the section must be considered, whilst having regard to its context and purpose. Moreover, since statutes speak as a complete instrument, it is necessary to consider the words of s 271.2(1A) in the context (in particular) of Division 271 as a whole, and to construe the language of the section so as to ensure consistency between all of the provisions of the Division (and the Code more generally).[14] The relevant context includes the legislative history and any extrinsic materials.[15] As the Court said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd:[16]
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’.[17] So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
[13]See, e.g., SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ).
[14]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69]; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320.
[15]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne J, Crennan J, Bell J and Gageler J).
[16]Ibid.
[17]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47].
We consider that, when s 271.2(1A) is read in the context of s 271.2 as a whole; and, more broadly, in the context of all of the provisions of Division 271, the legislative intention is clear. Section 271.2 was intended to create eight separate offences (by subsections (1), (1A), (1B), (1C), (2), (2A), (2B), (2C)), each of which has different elements — intended to deal with a variety of distinct facts and circumstances — but each of which has been designated ‘an offence of trafficking in persons’ (carrying in each case 12 years’ imprisonment). Indeed, when read in context, it is clear that s 271.2(1A) forms part of a coherent legislative scheme designed to regulate circumstances in which a person ‘organises or facilitates’ another person’s entry or proposed entry (or receipt), or exit or proposed exit, into or from Australia, in the several circumstances the legislature has seen fit to proscribe.
Hence, by way of illustration, several of the offences created by s 271.2 are concerned with a person who ‘organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia’ (subsections (1), (1B), (2) and (2B)), whilst others are concerned with a person who ‘organises or facilitates the exit or proposed exit of another person from Australia’ (subsections (1A), (1C), (2A) and (2C)). Two offences are concerned with the situation where a person is reckless as to whether the other person will be exploited, either by the first person or another (subsections (1B) and (1C)); while two others are concerned with circumstances where a person deceives another person about the fact that their entry (or proposed entry or stay) or exit (or proposed exit) into or out of Australia will involve the provision by the other person of sexual services or will involve the other person’s exploitation or the confiscation of the other person’s travel or identity documents (subsections (2) and (2A)). Two offences are concerned specifically with circumstances where there is an arrangement to provide sexual services, and a person deceives another person about enumerated things concerned with the provision of those sexual services (subsections (2B) and (2C)). Two offences relate to circumstances concerned with a person’s use of coercion, threat or deception having proscribed results (subsections (1) and (1A)). And four offences relate to circumstances where a person deceives another person about a specified fact (subsections (2), (2A), (2B) and (2C)).
In our opinion, it is clear that, properly construed, s 271.2(1A) does not require the prosecution to prove that the relevant deception involved the risk of the exploitation of another person. Insofar as the judge ruled to the contrary, he fell into error.
We do not agree that this construction produces absurd or anomalous results so as to suggest a different construction. We do not accept that the Parliament could not have regarded conduct — be it coercion, threats or deception — that leads to a person exiting Australia to be a serious matter, whether or not it involved a risk of exploitation. Generally speaking — and putting long-arm jurisdiction to one side — when a person leaves Australia they are at risk of losing the protections of the law that are afforded to persons within the jurisdiction. Forcing or deceiving someone to leave Australia can (and often will) have significant consequences, the gravity of which may depend on a range of circumstances, but all of which may be legitimately regarded by the Parliament as a matter of serious concern.
The respondent’s construction is also productive of uncertainty. In oral submissions, the respondent’s counsel wavered as to whether the risk of exploitation which was said to form part of an offence under s 271.2(1A) picked up the definition of exploitation in s 271.1A or some other broader meaning, ultimately agreeing that it was the former. Implying a defined term into a provision that does not expressly use the term is an unlikely mode of drafting and to insert it by the process of constriction is apt to rewrite rather than interpret the section. Further, the respondent was unclear whether exploitation needed to be a risk of the proposed exit from Australia for the purpose of the deception. How the supposed risk of exploitation interacted with the fault element of the offence was also not explained. What emerged from argument was that the construction found by the judge produced difficult questions of construction and a high degree of uncertainty that is not present from the plain words of the section.
Recourse to the Protocol, which underpinned much of the respondent’s argument, does not resolve the constructional question. It was not suggested that the Constitutional competence of the Commonwealth Parliament to enact s 272.1(1A) depended on giving effect to the Protocol.[18] And, in his Second Reading Speech, the Minister for Justice said that the Bill would ‘ensure Australia meets, and actually exceeds’ its obligations under the Protocol.[19] For that reason, it is not open to argue that the Protocol constrains the meaning to be given to the provision. Relatedly, it follows from the form of each of the subsections in s 271.2, all of which are different in content but begin with the words ‘A person (the first person) commits an offence of trafficking in persons,’ that there is no single concept of trafficking. Nor is it possible to imply minimum common features (such as exploitation) that are not expressly provided for in the enactment without distorting the provision as a whole.
[18]Re Australian Education Union & Australian Nursing Federation; Ex Parte Victoria (1995) 184 CLR 188.
[19]Senate, 8 December 2004.
As we have mentioned, the applicant’s counsel submitted that, if the trial judge’s construction of s 271.2(1A) is correct — so that deception in the expression coercion, threat or deception found in s 271.2(1A)(b) carries with it by necessary implication that risk of exploitation of the person deceived is an element of the offence — 271.2(2A) would be wholly superfluous. That argument is compelling. Indeed, if the judge’s construction were to be accepted, it would produce the somewhat absurd result that both ss 271.2(1A) and (2A) would criminalise identical conduct. The legislature cannot have intended that two provisions in the same statute would create offences having identical elements.
Finally, for the sake of completeness we note that, despite the respondent’s[20] and the judge’s reference to Australia’s treaty obligations,[21] and the respondent’s reliance on the Protocol,[22] none of the submissions advanced by the respondent’s counsel contended that s 271.2(1A) was beyond the legislative competence of the Commonwealth.
[20]See [25] above.
[21]See [31] above.
[22]See [25], [44] and [46] above.

Conclusion

Each of the applicant’s proposed grounds has merit. Leave to appeal should be granted; the appeal allowed; and the interlocutory decision set aside.

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[2024] VSCA 247

23 October 2024