AUSTRALIAN NGO SHADOW REPORT

ON TRAFFICKED WOMEN

IN AUSTRALIA

SUBMITTED TO THE 34^TH SESSION OF THE COMMITTEE FOR THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW)

UNANIMA International

Congregation of Sisters of the Good Shepherd

International Presentation Association

 Relative to the
Report of the Government of Australia as a State-Party to CEDAW

23 January 2006, New York

This report is dedicated to women who have been trafficked and enslaved in Australia

ACKNOWLEDGEMENTS

 The Australian Religious Congregations Anti-Trafficking Working Group initiated the preparation of this report.  The report was written by Jennifer Burn, an academic from the University of Technology, Sydney Australia and director of the UTS Anti-Slavery Project, Frances Simmons, legal researcher and Georgina Costello, barrister. Christine Carolan, Louise Cleary csb, Pauline Coll sgs, Eveline Crotty rsm, Tania de Jong rgs, Elizabeth Hoban, Erica Kotnik, Margaret Ng rsj, Joan Power pbvm, Caroline Price rgs and Sallie Yea contributed their substantial skill and expertise to the completion of this report.    

ENDORSEMENTS

This report has been endorsed by the following congregations and organisations:

Brigidine Sisters, Australia
Christian Brothers, Victoria and Tasmania
Franciscan Missionaries of Mary, Australia
Franciscan Missionaries of the Divine Motherhood
Good Shepherd Social Justice Network
Missionary Sisters of the Sacred Heart (Hiltrup)
Presentation Sisters, Lismore
Presentation Sisters, Victoria
Religious Congregations Anti-Trafficking Working Group
Sisters of Charity, Australia
Sisters of Mercy, Melbourne Congregation
Sisters of Mercy, North Sydney
Sisters of St Joseph of the Sacred Heart
Sisters of St. Joseph, Lochinvar
Sisters of the Good Samaritan
Sisters of the Good Shepherd, Australia
Social Action Committee of the Congregational Leaders of Religious Communities of Victoria
The Grail in Australia
The Marist Sisters, Australia 
University of Technology, Sydney, Anti-Slavery Project
Women and Reform of Migration (Sydney)
World Vision Australia

INTRODUCTION

This shadow report addresses Article 6 of the Convention on the Elimination of Discrimination Against Women (CEDAW) and evaluates Australia’s response to the trafficking of women. Australia has made significant advances in combating human trafficking and we invite the Australian Government to consider this report and its recommendations as Government and civil society work together with the shared aim of eliminating human trafficking in Australia.  We welcome the opportunity to present our findings to the CEDAW Committee and look forward to entering into a new phase of dialogue with the Australian Government, federal agencies, religious organisations, NGOs, trafficking survivors, researchers and others.  We value the opportunity of learning from others through the CEDAW process and invite our colleagues and friends to join us in our discussions and in the formulation of strategies to end trafficking in our country, and to work with others to end trafficking in our region and globally.

EXECUTIVE SUMMARY

1.                  International Context

Australia has made significant progress in combating human trafficking within its borders. This section summarises Australia’s obligations under international instruments such as The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children and the Convention on the Elimination of All Forms of Discrimination Against Women, as well as the principles enumerated in The UN Recommended Principles and Guidelines on Human Rights and Human Trafficking and the Council of Europe on action Against Trafficking in Human Beings.  We conclude that anti-trafficking law and policy should be addressed in a human rights framework. While the successful prosecution of traffickers is an important element of the response to trafficking, it is the victim, not the perpetrator who should be at the centre of strategies to eliminate trafficking.

2.                  Australia’s Response to Trafficking

Since 1999, the Australian Government has focused developing criminal law at the federal level through amendments to the Australian Criminal Code. In October 2003 the Federal Government announced a four year  AUD 20 million package of reforms leading to the launch in June 2004 of the Australian Government’s  Action Plan to Eradicate Trafficking in Persons (Action Plan). There are four central elements to the Action Plan:

¨      Prevention;

¨      Detection and Investigation;

¨      Criminal Prosecution;

¨      Victim Support and Rehabilitation.

To date, the Australian Government’s primary focus has been on achieving successful prosecutions and recently, the Federal Government introduced the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 expanding the range of slavery and trafficking offences. We invite the Federal Government to strengthen its commitment to the Action Plan’s focus on Prevention, Victim Support and Rehabilitation and consider the importance of supporting all victims of trafficking, not just those who are able to assist police investigations and prosecutions.

Visa reform

The current trafficking visa framework is centered on the ability of a trafficking victim as witness to assist law enforcement and prosecutorial bodies. We submit that trafficking visas be reviewed to prioritise victims’ safety, security, and human rights above the needs of law enforcement. Such reforms will protect the human rights of all trafficking victims and, in addition, enhance victim cooperation and improve Australia’s ability to detect, investigate and prosecute traffickers. 

National taskforce

In reaffirming its commitment to the Action Plan we recommend that the Australian Government establish a national interagency taskforce to investigate, review and coordinate responses to human trafficking in Australia. Membership of the taskforce could be drawn from key Federal Government agencies, such as the Attorney-General’s Department, the Department of Family and Community Services (FaCS), the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), the Australian Federal Police (AFP), and the Commonwealth Director of Public Prosecutions.  Representatives from law enforcement and prosecution bodies in the States, local council representatives, and representatives from civil society including anti-trafficking NGOs, religious organisations, trade unions, health professions and sex worker advocacy groups should also be involved. It is crucial that the voice of trafficking survivors also be heard. We believe that effective strategies to address trafficking will be created through partnerships between government and civil society.

3.                  Identifying, Investigating and Prosecuting Trafficking

3.1        Identifying trafficking

We commend DIMIA for developing guidelines to assist its officers to identify trafficking victims but we believe that the guidelines should be publicised and circulated as part of a community education program.

3.2        Community Awareness

It is commendable that the Action Plan includes a Community Awareness Program targeting a wide ranging audience. This would be enhanced by expanding the scope of the campaign beyond sex trafficking to include all sectors where trafficking may occur. There is some urgency to fully develop and implement comprehensive community awareness programs. 

3.3        Investigating Trafficking

It is pleasing to note that in 2003 the Australian Government established, funded and implemented the training of a specialist AFP taskforce to conduct investigations leading to prosecution. Further development is needed in coordinating Australia’s law enforcement responses nationally and in building networks within civil society.

3.4        Prosecuting Trafficking

The Australian Government has made a valuable contribution to law enforcement by establishing a specialist police taskforce and amending the federal Criminal Code. To date there has been one conviction of a person charged with a trafficking offence, but in that case the accused pleaded guilty. Criminal trials to date indicate that prosecutions can succeed or fail for many reasons, including the jury’s impressions about the credibility of the alleged victim. The complex range of factors, including cultural factors affecting a trafficking victim, need to be understood by law enforcement officers, prosecuting and defending lawyers and judge and jury.

4.                  Victim Support

The Action Plan sets out commendable and innovative victim support strategies.

Victim Support Program

A key development was the creation of a specific Victim Support Program that provides that some trafficking victims receive a beneficial package of support measures including assistance with accommodation, a living allowance, access to medical and counseling services and other support.

Scope of Victim Support Program

Currently a trafficking victim’s ability to access the Victim Support Program is contingent on their capacity to assist police in a criminal investigation or prosecution. Trafficking victims, who are not involved in the law enforcement and criminal justice process, have been left to find care and support from members of community and religious organizations. We believe that the Program should be extended to all victims of trafficking. Victims of trafficking have many and complex needs. We recommend that the Government consider widening the Victim Support Program to guarantee that all victims of trafficking receive access to comprehensive health care services, residential and vocational support, and legal and migration advice.

Independent evaluation of the Victim Support Program

We commend the Australian Government’s intention of conducting an independent evaluation of the Victim Support Program and suggest that this review include community-wide consultation about the effectiveness of the program. Interviews with trafficked women by the authors of this report about the Victim Support Program suggest that there needs to be a thorough continuing evaluation of the support provided to victims on the program. An evaluation of the Victim Support Program would assess the extent to which needs are met within the Victim Support Program. Additionally the provider of the Victim Support Program may wish to consider the development of an information strategy and complaints mechanism for those receiving assistance in the program.

5.                  Repatriation and Reintegration processes

The Australian Government has a number of admirable international initiatives which aim to prevent trafficking abroad. We recommend that Australia continue to explore opportunities to establish bilateral agreements to facilitate the repatriation of victims of trafficking in appropriate circumstances. We further recommend that the Australian Government consider funding a pre-reintegration program for victims of trafficking who seek to return to their country of origin. Such a program would focus on providing a range of supports such as counseling, health care, vocational assistance and other appropriate measures designed to ensure a successful return and reintegration into the country of origin.

6.                  Prevention

Human trafficking is a complex and multidimensional phenomenon and requires a multidisciplinary approach. Poverty is generally considered to be a key factor that contributes to the victim’s vulnerability to trafficking. Another key factor is the prevalence of violence against women. Strategies to eliminate violence against women should be prioritised and implemented.  Any analysis of the root causes of trafficking must take into account factors that are specific to the individual, the country of origin and the destination country.  We recommend that the Government prioritise funding for research into the origins and extent of human trafficking in Australia and in the Asia Pacific region.

Alternatives to criminal prosecution need also to be explored. To date there have been no civil cases brought by trafficking victims to claim compensation from traffickers, and there have been no awards of sums from existing crimes compensation funds for victims.  Expansion of the Victim Support Program to assist trafficking victims to access legal advice about possible civil actions as well as compensation claims would be a powerful deterrent. Another deterrent would be successful prosecutions.

7.                  Concluding Remark

We commend the Australian government on its Action Plan. We look forward to an energetic cooperation between government and civil society in the future.  We thank CEDAW for the opportunity to present this shadow report.

RECOMMENDATIONS

RECOMMENDATION TO THE CEDAW COMMITTEE

We recommend that the CEDAW Committee:

A.       Welcome the significant advances towards the elimination of trafficking made by the Australian Government.

B.       Encourage the Australian Government to adopt a human-rights framework in addressing the sex and race-based discrimination which increases some women's vulnerability to trafficking and sexual exploitation.

C.      Encourage the Australian Government to establish a national taskforce to investigate, review and coordinate the response to human trafficking in Australia, grounded in collaborative partnerships between government and civil society.

D.      Urge the Australian Government to review the visa framework applied to women who have been trafficked and in particular recommend that a visa be introduced for those people who are unable to testify in court proceedings, or for whom it would be unsafe to be repatriated, or for compassionate reasons.

E        Ask the Australian Government to extend resourcing of the Victim Support package to other providers  (NGOs and religious groups) that support trafficked people who do not meet the current victim support eligibility criteria.

F.       Prioritise and encourage research into the nature and extent of human trafficking in Australia and the Asia Pacific region.

RECOMMENDATIONS TO THE AUSTRALIAN GOVERNMENT

Australia’s Response to Trafficking

 1.         That the human rights of the victim are placed at the centre of efforts to combat trafficking in Australia and internationally and that legal and policy responses to trafficking are based upon a human rights framework.

2.                  That the Australian Government commission further research into the nature and extent of human trafficking in Australia and the Asia Pacific region.

3.                  That the Australian Government, having commissioned the development of a Community Awareness Program, implement this as soon as is possible.

4.                  That the Australian Government expand the proposed Community Awareness Program to provide education and information about human trafficking in all industry sectors and the domestic sphere.

 Identifying, Investigating and Prosecuting Trafficking

5.         That the Government establish a national taskforce to investigate, review and coordinate responses to human trafficking in Australia.  We recommend that membership of the taskforce include representatives of all levels of government (federal, state and local) as well as representatives of civil society.

6.         That all Australian States and Territories introduce laws which reflect the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005. Such laws should be expanded to include statutory rights to victims’ compensation.

7.         That the Australian Government implement the recommendation of the supplementary report of the Parliamentary Joint Committee on the Australian Crime Commission to review the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 in 2006. We submit that consideration be given to amendments that include the provision to the court of victim impact statements specific to these offences, similar to those contained in the NSW Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004.

8          That the Australian Government review best practices in sexual assault prosecutions and other similar offences in state and federal criminal law jurisdictions for the purpose of evaluating the law, policies and procedures relevant to the conduct of trafficking prosecutions.  

9.         That, where appropriate, prosecutors in trafficking trials call qualified expert witnesses to give evidence to the court and the jury about relevant social, cultural, health and welfare factors that impact on a trafficking victim.
 

Victim Support

10.       That the existing trafficking visa framework be reformed.

11.       That trafficking victims should be eligible for visas on the basis of their status as a victim of trafficking, their safety needs and their need for victim support, regardless of their involvement in the criminal justice system.

 12.       That the commendable Australian Government initiative of conducting an independent evaluation of the Victim Support Program be broadened to include community-wide consultation about the effectiveness of the program.  

13.       That upon entering the victim support program a person receives comprehensive legal advice and access to a health care program.  

14.       That the Australian Government develops the victim support program in Australia to provide supported accommodation and care for all trafficking survivors, and that consideration be given to the resourcing of other providers (NGOs and religious groups). That this issue be considered by the national taskforce (see recommendation 5).  

Repatriation and Reintegration Processes

15.       That the Australian Government considers the development of appropriate pre-reintegration strategies for all victims of trafficking while they are still in Australia. This may include the possibility of developing a new pre-reintegration visa for victims of trafficking who wish to return to their country of origin.

 16.       That the Australian Government continues to make representations to the governments of source countries to develop reintegration programs for victims of trafficking.

 17.       That the Australian Government develops a Domestic Protocol to provide systematic repatriation and reintegration initiatives for all trafficking victims who wish to return to their country of origin or elsewhere. 

 Prevention

18.       That the Australian Government continues its efforts to address the Millennium Development Goals in recognition of the direct link between poverty and trafficking.
 

19.       That the Australian Government continues to promote the development of strategies to eliminate violence against women within the context of trafficking.

20.       That all trafficking victims receive legal advice about possible civil remedies as well as their rights to access crimes compensation.

21.       That the Australian Government continue to cooperate with other national and international authorities and police forces to combat trafficking in its country of origin.

 1          THE INTERNATIONAL CONTEXT

The framework of analysis used in this submission to assess Australia’s performance in countering human trafficking is drawn from relevant international instruments, including the United Nations Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women and Children, The UN Guidelines on Human Trafficking, The Convention on the Elimination of All Forms of Discrimination Against Women, and the Council of Europe on Action against Trafficking in Human Beings.

Trafficking is, first and foremost, a human rights violation and it is imperative that the adequacy of Australia’s response to trafficking is assessed in a human rights framework. Despite some debate and discussion regarding relevant international treaty obligations, “a core of obligations, enshrined in and protected by international law”[1] can be identified from these instruments and this report measures Australia’s response to human trafficking against these internationally agreed standards. While the successful prosecution of traffickers is an important element of the response to trafficking, it is the victim, not the offender, who should be at the centre of measures to address trafficking.

1.1       The UN Protocol of Trafficking in Persons

Australia is a party to The United Nations Protocol to Prevent and Suppress Trafficking in Persons, Especially Women and Children (“The Trafficking Protocol”), and Australia ratified the Trafficking Protocol on the 15^th of September 2005. The Trafficking Protocol defines “trafficking in persons” as:

…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.

Crucially the Trafficking Protocol provides that "the consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) [above, defining traffic in persons] of this Article shall be irrelevant where any of the means set forth in subparagraph (a) have been used."[2] 

While the Protocol does not offer an exhaustive definition of exploitation, it states that exploitation includes, at a minimum:

the exploitation or 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.

Article 2 outlines the Statement of Purpose of the Trafficking Protocol which aims to address human trafficking by:

1.                  Preventing and Combating Human Trafficking;

2.                  Protecting and Assisting Victims of Trafficking;

3.                  Ensuring that there is International Cooperation to Achieve these Ends.

1.2       The UN Principles and Guidelines on Human Rights and Human Trafficking

Under the UN Principles and Guidelines on Human Rights and Human Trafficking (“The UN Guideline”) “the human rights of trafficked persons shall be at the centre of all efforts to prevent and combat trafficking and to protect, assist and provide redress to victims”. Principle 2 states under international law States have a responsibility to act with due diligence to prevent trafficking, to investigate and prosecute traffickers and to assist and protect trafficked persons. Principle 8 requires States to “ensure that trafficked persons are protected from further exploitation and harm and have access to adequate physical and psychological care [which] shall not be made conditional on the capacity or willingness of trafficked persons to cooperate in legal proceedings”.

1.3       The Convention on the Elimination of Discrimination Against Women

Australia ratified the Convention on the Elimination of Discrimination Against Women on the 28^th of July 1983. Article 6 provides that “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation or prostitution of women”. General Recommendation 19 of the Committee on the Elimination of Discrimination Against Women stated:

Poverty and unemployment increase opportunities for trafficking in women. In addition to established forms of trafficking there are new forms of sexual exploitation, such as sex tourism, the recruitment of domestic labour from developing countries to work in developed countries and organized marriages between women from developing countries and foreign nationals. These practices are incompatible with the equal enjoyment of rights by women and with respect for their rights and dignity. They put women at special risk of violence and abuse.[3]

The Committee observed that “poverty and unemployment force many women, including young girls, into prostitution. Prostitutes are especially vulnerable to violence because their status, which may be unlawful, tends to marginalize them. They need the equal protection of laws against rape and other forms of violence”.  The Committee also noted that wars, armed conflicts and the occupation of territories often lead to increased prostitution, trafficking in women and sexual assault of women, which require specific protective and punitive measures.

1.4       The Convention on the Rights of the Child

The Convention on the Rights of the Child (CROC) requires States parties to: “take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children of any purpose or any form”.[4]  The Convention requires State parties to “take all appropriate measures to promote physical and psychological recovery and social integration of a child victim of … any form of … exploitation … in an environment which fosters the health, self-respect and dignity of the child”.       

1.5              Council of Europe Convention

The Council of Europe recognizes trafficking as a violation of human rights and provides a framework for the enhanced protection of the human rights of trafficked persons by requiring parties to the Convention to take action to prevent trafficking, prosecute traffickers and protect the rights of trafficking victims. Under the Convention States should provide assistance and protection to all people reasonably believed to be trafficked, including at a minimum: safe and secure housing; psychological and emergency medical assistance, interpretation and translation services, information about their rights -- including compensation. Such assistance should not be conditional on the person’s willingness to act as a witness in any proceedings against those responsible for their trafficking.

The Convention also provides that states should authorize the presence of trafficked people in the state in which they are found for a period (of not less than 30 days), which is sufficient for them to begin to recover, escape the influence of their trafficker(s) and to make informed decisions about their future, and in certain situations (when their stay is necessary for their personal situation and/or for their cooperation in investigations or criminal proceedings) to grant them renewable residence permits.  Finally, the Convention emphasizes that States should ensure that the trafficked persons have access to redress and receive compensation for the abuses of their human rights to which they have been subjected.

2          AUSTRALIA’S REPONSE TO TRAFFICKING

2.1       Trafficking in Australia

The problem of trafficking in Australia is not new. The Australian Government has worked to widen the scope of trafficking and slavery offences in the Criminal Code  beginning with a major reform to the criminal law in 1999 with the introduction of the Criminal Code Amendment (Slavery and Sexual Servitude) Offences. Act. However, it was not until 2003 that, partly in response to community, political and media pressure, the Australian Government directed that further policy and legal reform were necessary to improve Australia’s response to trafficking. As a result of these reforms, between 2003 and 2005 there has been a substantial improvement in Australia’s response to trafficking, culminating in Australia’s ratification of the Trafficking Protocol on the 15^th of September 2005.

The tragic death of Ms Puontong Simaplee, who died in Villawood Immigration Detention Centre on the 26^th of September 2001, three days after being detected by Immigration officers in an inner city brothel and her subsequent detention in an immigration detention facility illustrated that legislation criminalising slavery will have little effect if victim identification measures, victim support programs and visa arrangements are inadequate.

The fact of Ms Simaplee’s death and the resultant Coronial Inquiry in 2003 galvanised the Australian community and media and helped put trafficking on the political agenda. In June 2003 the Joint Parliamentary Committee on the National Crime Authority initiated an inquiry into the Australian Crime Commission’s handling of the issue of trafficking. The Committee was a result:

[of] the emergence in the media of allegations of mishandling of cases of trafficked women by government agencies. Of particular concern was the allegation that women, who were in effect prisoners of traffickers who forced them into the sex trade against their will, were simply deported by government agencies with no regard for their condition as victims of crime.[5]

In October 2003 the Government revealed a four year $20 million package[6], followed by the launch in June 2004 of the Australian Government’s Action Plan to Eradicate Trafficking in Persons and, most recently, the introduction of the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005.

The Australian Government’s Action Plan to Eradicate Trafficking in Persons represents a clear statement that the Government will not tolerate trafficking and will work to assist victims of trafficking. The Action Plan has four central elements :  Prevention; Detection and Investigation; Criminal Prosecution; Victim Support and Rehabilitation. The Action Plan includes: 

• a new community awareness campaign to raise awareness of trafficking issues within Australia;
• the creation of an Australian Federal Police Transnational Sexual Exploitation and Trafficking Team to investigate trafficking and sexual servitude;
• the location of Senior Migration Officer (Compliance) in Thailand, focused on trafficking in persons;
• new visa arrangements for potentially trafficked persons who are of interest to, or can assist police investigations or prosecutions;
• a victim support program for persons who had been granted visas to assist police investigations or prosecutions;
•  the development of a reintegration assistance project for trafficking victims who are returned to key source countries in South East Asia.

2.2       Estimates of Trafficking in Australia

Australia is a destination country for trafficking. However, there is a lack of accurate statistical data and a clear need for independent research into human trafficking in Australia.[7] The 2005 US State Department’s Trafficking in Persons Report lists Australia as “a destination for women from Southeast Asia, South Korea, and the People’s Republic of China (P.R.C) who are trafficked for the purposes of sexual exploitation”.[8] The Parliamentary Committee on the ACC Supplementary Report  released in August 2005 state that “intelligence mainly concerns the trafficking of adult women, who come predominantly from South Korea, Thailand and the People’s Republic of China. There appears to have been a fall in the number of Thai sex workers and an increase in the number of South Korean workers”.[9] Australian research has suggested that women are trafficked to Australia from both South and East Asia, with smaller numbers from Latin America and former Soviet States. [10]

Estimates of the numbers of person trafficked to Australia vary and generally focus on the number of women trafficked to Australia to work in sexual servitude.  The Government estimates that “the number of people trafficked into Australia is estimated to be well below 100”. [11] Project Respect estimates that there are approximately 1000 trafficked women working in the Australian sex industry at any one time and about 300 women are trafficked into Australia annually.[12] 

To date, not enough research has been conducted into the size and character of trafficking in Australia. Existing studies focus almost exclusively on trafficking into the sex industry. While this is undoubtedly a problem upon which Australia must remain focused on, it is also imperative that researchers investigate trafficking within the Australian and regional context. As trafficking is a multi-dimensional phenomena, the best research will be inter-disciplinary in nature, involving demographers, social scientists, lawyers, health professionals, members of NGOs, the media and the community.

2.3       The Criminal Code (Slavery and Sexual Servitude Act) 1999

In an early commendable response to the problem of human trafficking the Australian Government amended the Criminal Code through the enactment of the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999, creating the offences of slavery, sexual servitude and recruiting for sexual services.  Sexual servitude was defined as the condition of a person who provides sexual services and, because of force or threats, is not free to cease providing those services or leave the place where they provide those services. The Act provided the offence of ‘deceptive recruiting’ for sexual service was established only where the victim was deliberately deceived about the nature of the work, not where the victim was deceived about the conditions of work.  This provision functioned to exclude the experience of women who consented to migrate in the sex industry but did not consent to the conditions of work despite the fact that commentators believe that the majority of trafficked women know they are coming to Australia to work in the sex industry.[13] The Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 did not contain a definition of trafficking. Despite the introduction of the laws, no charges were laid in Australia under these laws until 2003.  

2.4       The Criminal Code (Trafficking in Persons) Amendment Act

In 2005, the Attorney-General reviewed Australian criminal law dealing with human trafficking and subsequently the Federal Parliament enacted the Criminal Code Amendment (Trafficking in Persons Offences) (Cth). While retaining a strong focus on trafficking in women for sexual servitude, the Act adopts a broad definition of trafficking as conduct which causes the victim to enter into slavery, forced labour or sexual servitude or causes an organ of the victim to be removed. [14]

The Act expands the existing catalogue of trafficking related offences[15] with the introduction of a new Subdivision B on ‘Offences relating to trafficking in persons’[16]. This new subdivision categorizes trafficking offences into:

·         a general offence of trafficking and the aggravated offence of trafficking;

·         the offence of trafficking in children in general;

·         the offence of domestic trafficking in children,

·         a general offence of domestic trafficking in persons and the aggravated offence of domestic trafficking in persons; and

·         the offence of debt bondage.

The Act broadens the ‘deceptive recruiting for sexual services’ offences in the section 270.7 of the Criminal Code (1995) to cover deception about the conditions of work as well as deception about the nature of work.

The new offence of trafficking reflects to a large degree the Trafficking Protocol definition.  It provides that a person commits an offence of trafficking in persons if he or she organizes or facilitates the entry/exit or proposed entry/exit, or the receipt, of another person into Australia; and uses force or threats to obtain the other person’s compliance in respect of that entry/exit or proposed entry/exit or in respect of that receipt. (s271.2;). The Act broadens the mens rea of trafficking by providing that, a person commits the offence where they facilitate the entry or exit of another person, and ‘the person is reckless as to whether the other person will be exploited, either by the first person or another, after that entry or receipt’ (s271.2 (1B) (b).[17] The general offence of trafficking also includes deceit regarding the true purposes of the recruitment of the victim for entry into or exit from Australia.

The Act does not prohibit recruitment of a person for the purposes of providing sexual services. However to ensure that trafficking does not take on the guise of ‘legitimate’ recruitment, s 271.2(2B) of the Act provides that a person commits the offence of trafficking where there is an arrangement for the other person to provide sexual services in Australia and:

   …(c)      the first person deceives the other person about any of the following:

          (i)     The nature of the sexual services to be provided;

         (ii)    The extent to which the other person will be free to leave the place or area  where the other person provides sexual services;

         (iii)   The extent to which the other person will be free to cease providing sexual  services;

  (vi)      The extent to which the other person will be free to leave his or her place of residence;

       (iv)       If there is a debt owed or claimed to be owed by the other person in connection    with the arrangement for the other person to provide sexual services—the quantum, or the existence, of the debt owed or claimed to be owed.

Sections 271.5-271.7 thus address the question of domestic trafficking by making it an offence to ‘traffic’ a person ‘from one place in Australia to another place in Australia’. [18]

Of particular importance is the introduction of a new offence of debt bondage (s271.8).

Importantly, the offence of debt bondage also recognizes the differential power relationship that often exists between traffickers and their victims. Under section 271.8 (2) a court or jury, determining whether a person has committed the offence of debt bondage, can have regard to evidence about: the economic relationship between the accused and the alleged victim; evidence of any written or oral contract or agreement; the personal circumstances of the alleged victim including whether they are entitled to be in Australia under the Migration Act, his or her ability to speak English and his or her physical and social dependence on the accused. This evidence is also admissible in relation to the deceptive recruiting for sexual services offence (s270.1).

In relation to the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 the Parliamentary Joint Committee on the Australian Crime Commission Supplementary Report on the Inquiry into Trafficking of Women for Sexual Servitude recommended:

That a review of the new legislation take place a year after its implementation, and as part of that review, consideration be given to amendments to include the provision to the court of victim impact statements specific to these offences, similar to those contained in the NSW Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004.[19]

Broadening the range and scope of trafficking offences is an important element of enabling effective prosecutions of traffickers but it does not address the root causes of trafficking. Recognizing that pursuing criminal justice will not necessarily lead to justice for trafficking victims is important. Criminal prosecutions of trafficking offenders are notoriously hard to prove. The criminal prosecution of trafficking victims can only be one aspect of attempts to seek justice for the victims of trafficking. [20]

3          IDENTIFYING, INVESTIGATING AND PROSECUTING TRAFFICKING

3.1       Identifying the Victims of Trafficking

Logically, finding and identifying trafficking victims is a precondition to protecting and assisting them and to pursuing trafficking criminal investigations. The UN Guidelines state:

 A failure to identify a trafficked person correctly is likely to result in a further denial of that person’s rights. States are therefore under an obligation to ensure that such identification can and does take place. [21]

The Department of Immigration and Multicultural Affairs (DIMIA) has now developed guidelines for immigration officers to identify potential victims of trafficking. These guidelines have not been made public[22]. Mr. McMahon, Executive Coordinator, Border Control and Compliance Division, DIMIA, stated:

When we interview a person we do not ask them if they have been trafficked. When we conduct interviews we ask a series of questions which establish whether they have been trafficked. This is quite important because many women who have been trafficked have been schooled through intimidation et cetera not to answer the questions …[23]

This submission commends DIMIA for developing guidelines for identifying trafficking victims. Implementation of these policies has changed the way that victims of trafficking are perceived and treated by key DIMIA staff. Additionally the Australian Federal Police (AFP) have engaged in substantial training programs of key officers – especially in the AFP key trafficking police unit (Transnational Sexual Exploitation and Trafficking Strike Team – TSETT). We recommend that all levels of government: federal, state and local as well as law enforcement agencies, include trafficking awareness and related socio-cultural issues as a necessary part of staff training.

3.2       Community Awareness

The Australian Government’s Action Plan to Eradicate Trafficking included a community awareness strategy ‘to encourage greater awareness of matters related to trafficking, the reporting of suspicious activity, and the availability of support for victims’.  However, two years later, this community awareness campaign is yet to be implemented.  The PJC on the ACC reported:

….the community awareness strategy that was intended to be implemented has been very slow in its implementation. A sum of $400,000 was to be spent on the community awareness strategy to combat sex trafficking, but government consultant Open Mind Research are finding it difficult to get appointments with the targets of the advertising—the sex industry workers and their clients. Stage 1, which is to determine the focus of the strategy and identify target audiences and to develop key messages, is still where the campaign is at. A task as obviously important as developing key messages has now dragged on for nearly two years.[24]

Open Mind Research are encouraged to liaise or continue liaising with existing anti-trafficking NGOs such as Project Respect (Melbourne), the UTS Anti-Slavery Project (Sydney), the Community Response Network (Sydney) and the National Network against Trafficking in Women for Prostitution (Melbourne);  Scarlett Alliance and other sex worker advocacy groups to inform the development of the community awareness program.

After Stage one is completed, the Attorney General will tender for an agency to undertake the design, marketing and publication outcomes of that strategy.

According to the Attorney General’s Department the community awareness strategy will target:

Victims of trafficking who are working in the legal or illegal sex industry in Australia, as well as people who are likely to come into regular contact with them, such as other sex workers, clients, brothel owners and managers, brothel regulators, migration agents, sex worker outreach organizations and sexual health service providers. The strategy will also encourage greater awareness of people trafficking issues in the general community by working with the media to address trafficking in a responsible, culturally appropriate and context sensitive manner. A range of information will be produced and disseminated, including indications of trafficking, victims’ rights and available assistance and support. As well, the strategy will seek to sensitize clients of the sex industry to the situation of women who are trafficked for the purposes of sexual exploitation.[25]

We recommend that the Australian government, having commissioned the development of a Community Awareness Program, implement this as soon as is possible.

It is important to note that the planned community awareness campaign focuses exclusively on sex trafficking rather than providing education and information about the broader issue of human trafficking. Unfortunately, there have been no initiatives to increase the awareness of trade unions, migrant resource centres, ethnic communities, local councils, community legal centres, sexual assault centres, health professionals, schools or rural communities about human trafficking generally.

3.3       Investigating Trafficking

It is pleasing to note that the Australian Government established, funded and implemented the training of a specialist AFP taskforce to work on human trafficking investigations and prosecutions in 2003. This is a welcome advance in the area of prosecution.  However, there are concerns that, in an area which involves multiple federal agencies, there is no central body which co-ordinates responses and is ultimately accountable for successes or failures. The Supplementary Report to the Inquiry into the trafficking of women into sexual servitude stated:

Concern remains that in any situation such as this, where multiple agencies share responsibility, no-one has either the authority to ensure that actions are taken, nor is it necessarily clear who was responsible for an action or a failure. [26]

One idea canvassed by the PJC was that the Australian National Audit Office (ANAO) conducts

an audit of the overall National Action Plan.[27]  The Report also noted that six states have

introduced sexual servitude offences and emphasized the need for all states to introduce anti-

trafficking legislation which reflect the Criminal Code Amendment (Trafficking in Persons

Offences) Act 2005. We recommend that all Australian State and Territories introduce laws which

reflect the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005. Such laws should

be expanded to include rights to victims’ compensation.

There is a need for a national taskforce to coordinate Australia’s response to trafficking at a federal, state, local  and international level.  The national taskforce should include representatives from civil society in addition to governmental and inter-governmental representation. One of the first objectives of this taskforce should be to investigate and report on the adequacy of relevant trafficking legislation in each state, as well as federal and state law enforcement training and coordination. 

The potential benefits of cooperation between law enforcement and civil society in combating human trafficking have not been explored in Australia.

There is a lack of coordination of the efforts of governments, law enforcement, lawyers, NGO’s, unions, the sex industry, academics, researchers and unions to fight trafficking. In particular, there are no committees which could bring together representatives and leaders from these groups to exchange information and establish case referral protocols. [28]

The 2005 Asia Pacific Forum Regional Workshop on Human Trafficking recommended that “due to their specific role, immigration officials, border control officials, labour inspectorates, police, prosecutors and the judiciary require specific training on an ongoing and regular basis”  Specifically the workshop also recommended training for law enforcement officers that advocates “investigatory techniques and processes which do not rely exclusively on the evidence of victim witnesses”. [29]

3.4       Prosecuting Trafficking

The Australian Government has made a valuable contribution to the trafficking prosecution framework by establishing a specialist police taskforce and amending the Criminal Code. To date there has been  one conviction of a person charged with a trafficking offence and, in that case, the accused pleaded guilty.[30]   In May 2005 two high profile sexual slavery cases in Melbourne and Sydney ended in deadlock.[31]  The prosecution in Sydney, the first test of the sexual servitude offences introduced in 1999, ended in a hung jury after two days of deliberation. In June 2005 the PJC on the ACC was advised:

In the Sydney trial the jury failed to reach a verdict against the primary person who was accused, and the two co-accused, on 10 sexual servitude charges. In Melbourne one defendant was acquitted of eight out of 10 sexual servitude charges and the jury failed to reach a verdict on the charges against the co-accused in that case.[32]

The PJC was also told that the Commonwealth Director of Public Prosecutions is presently considering whether it will take action to seek a retrial in the cases where the jury failed to reach a verdict.

In criminal trials prosecutions can succeed or fail for many reasons. In trafficking cases stigma against the sex industry can influence a jury to doubt the credibility of alleged victims of trafficking. Trafficking cases are often complex: trafficked women often consent to work in the sex industry but do not consent to the conditions of work; women are often physically free to leave the premises but psychologically unable to escape. Despite the complex nature of trafficking, prosecutors in Australia have not provided expert evidence to the court to explain relevant cultural, social and psychological aspects of the people trafficking process.[33] Observers of recent Australian trafficking trials reported analogies between trafficking and sexual assault cases. We propose that the Australian Government review best practices in sexual assault prosecutions and other similar offences in state and federal criminal law jurisdictions for the purpose of evaluating the law, policies and procedures relevant to the conduct of trafficking prosecutions.

The conduct of prosecution proceedings in trafficking cases was the subject of recent criticism by Judge Robert Keleman after he was forced to abort a sexual slavery trial on the 68^th day of hearing.[34] Justice Keleman, whose comments were reported in The Sunday Telegraph, said failures by DIMIA and the AFP to provide relevant documents had led to the trial becoming “untenable”.[35] The prosecution managed to call only one witness and the rest of the time was spent on legal argument and the production of relevant documents that should have been handed to the defence before the trial started, leading Justice Keleman to describe the trial as an “appalling waste of money and court time”.[36]

4          VICTIM SUPPORT

4.1       “Witnesses/victims”: the visa framework for trafficked persons

A clear understanding of human trafficking involves a complex appreciation of many layers of human activity – from global trade to local demand. The Australian Government’s response to trafficking has been characterized by a strong law enforcement focus.[37]  The solution to trafficking is often presented as simply the apprehension and prosecution of individual perpetrators, reflecting the belief that, as Malcolm Turnbull MP explained,

…the real battle against trafficking of women for sexual exploitation will be won operationally, in the field, by police officers.[38]

This approach is reflected in The Australian Government’s Action Plan to Eradicate Trafficking in Persons, a $20 million package, which emphasizes the importance of successful prosecutions of trafficking offenders[39] and is embodied in the new visa regime for trafficking victims introduced in January 2004 which offers a gateway to victim support services but only if victims are deemed able to assist police.

From 1 January 2004, the Migration Regulations were amended by the Migration Amendment Regulations (No.11) 2003. The amendments established two new witness protection (trafficking) visas providing temporary or permanent stay to persons who had made a significant contribution to the prosecution or investigation of alleged trafficking offences and who may be in danger upon returning to their home country.

The Witness protection (trafficking) visas are part of a four-stage package consisting of:

Stage 1: A new bridging visa  (Bridging Visa F) (subclass 060)

Stage 2: The existing criminal justice stay visa (Pt 2, Division 4 of the Migration Act 1958)

Stage 3: Class UM, Subclass 787 (Witness Protection (Trafficking) (Temporary) Visa under Regulation 2.07AJ); and

Stage 4: Class DH, Subclass 852 (Witness Protection (Trafficking) (Permanent) Visa under Regulation 2.07AK.)

. From 1999 to 31 December 2003, 11 suspected victims of trafficking were granted Criminal Justice Stay visas, and 1 suspected victim of trafficking was granted a Criminal Justice Entry visa.[40] From 1 January 2004 to 30 June 2005, 42 suspected victims of trafficking have been granted Bridgin