Professor Bernadette McSherry

Professor Bernadette McSherry
(Monash University)

Australia’s Criminal Justice Response to Trafficking and Slavery: Putting the Law into Practice

Abstract:

In order to ratify the United Nations’ Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, the Australian government recently amended the Criminal Code (Cth) to include new trafficking offences. This paper analyses these offences and argues that while they are certainly a step in the right direction, there are anomalies in the provisions when seen in the context of the Criminal Code as a whole which may lead to problems of proof for prosecution authorities. It will be argued that it may in fact be easier to prosecute under the sex slavery provisions that were introduced into the Criminal Code in 1999. For example, in R v Wei Tang [2006] VCC 637, Judge McInerney of the County Court of Victoria took a very broad approach to the definition of slavery in sentencing brothel owner Wei Tang to 10 years' imprisonment after she had been found guilty of five counts of possessing a slave and five counts of exercising a power of ownership over a slave pursuant to s 270.3 of the Criminal Code (Cth). This paper will compare the offences of trafficking and slavery within a broader framework suggesting that the criminal justice response must be supplemented by human rights and migration perspectives in order to fully combat the problem.

Biographical note:

Bernadette McSherry holds the Louis Waller Chair of Law at Monash University and is the Associate Dean (Research) for the Monash Law Faculty. In 2006, she was appointed an Honorary Research Fellow at Osgoode Hall Law School, Canada. She is also a legal member of the Mental Health Review Board of Victoria and the Psychosurgery Review Board of Victoria. Professor McSherry has honours degrees in Arts and Law and a Masters of Law from the University of Melbourne, a PhD from York University, Canada and a Graduate Diploma in Psychology from Monash University.

Professor McSherry has written extensively in the areas of mental health law and criminal law and is the co-author of the books Principles of Criminal Law (Sydney: Thomson LBC, 2005, 2nd edition) with Simon Bronitt and Australian Criminal Laws: Critical Perspectives (Melbourne: OUP, 2004) with Bronwyn Naylor. Professor McSherry is currently involved in a number of research projects analysing mental health law and human rights, preventive detention regimes and people trafficking. With Dr Julie Debeljak and Associate Professor Susan Kneebone, she is a Chief Investigator in an Australian Research Council Linkage Project entitled ‘Australia's Response to Trafficking in Women: Towards A Model for the Regulation of Forced Migration in the Asia Pacific Region’. Professor McSherry is a Past President of the Australian and New Zealand Association of Psychiatry, Psychology and Law (Victorian Branch), and a member of the International Association of Forensic Mental Health Services and the International Academy of Law and Mental Health. Professor McSherry is the co-editor of the Legal Issues Column for the Journal of Law and Medicine and is on the editorial boards of Psychiatry, Psychology and Law and Monash Bioethics Review.

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