Abstract:
This article considers what tortious remedies in respect of deliberate wrongdoing are available to victims of human trafficking and slavery in Australia and the difficulties which victims might face in the pursuit of those remedies.The tortious causes of action which would provide suitable remedies for victims of trafficking and slavery include the trespass to person torts of assault, battery and false imprisonment as well as the cause of action first identified in Wilkinson v Downton and the torts of deceit and conspiracy by unlawful means.
Whilst there is no doubt that tort law has the capacity to provide a significant remedy for a victim of trafficking or slavery, the practical advantage of a claim in tort will depend to a great extent on the availability of suitable legal representation and on the determination of the victim to see the litigation process through to a conclusion. The identification of defendants with sufficient assets to meet an award of damages will be crucial. Not every victim of trafficking or slavery will be in a position to commence and maintain a common law claim, even with the benefit of expert pro bono legal advice. Legal advisers to victims need to be mindful not only of appropriate causes of action in tort and the evidentiary challenges they might face but also the practical difficulties in the prosecution of civil claims by victims. In many cases a common law claim will not be the answer. A victim may be better advised to pursue a claim under one of the Australian states’ victims of crime compensation schemes or pursuant to employment legislation or in the event of a criminal prosecution, an application for an order for reparation pursuant to the Crimes Act 1914 (Cth). The establishment of a federal compensation scheme for victims of federal crimes would be a constructive and valuable measure to provide a certain pathway to compensation for victims of trafficking and slavery.
Stewart, Pam, Tortious Remedies for Deliberate Wrongdoing to Victims of Human Trafficking and Slavery in Australia (2011). University of New South Wales Law Journal, Vol 34, No 3, 2011.
First posted 2014-07-11 06:23:54
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