Contents

Executive Summary

This brief provides an overview of the growing global trade in trafficking sexual labour for the commercial sex industry. No consensus has been reached on the size or extent of the problem in Australia. Estimates vary because of a lack of reliable statistical data and the differing definitions of trafficking being applied. The incorrect use of 'smuggling' and 'trafficking' as interchangeable terms has created further confusion in the public debate. Regardless of the numbers, many women who migrate to work in the sex industry have found themselves to be victims of sexual servitude. While the consent of the women has been raised in defence of Australia's poor prosecutions record, under Australian law theoriginal consent is irrelevant to whether or not an offence of sexual servitude has been committed.

A key issue in Australia's current practice is the priority given to the enforcement of immigration law. Women working illegally in the Australian sex industry are detained and promptly deported. It is arguable that the current approach negates proper consideration of the human rights of victims of trafficking and undermines the criminal justice objective of prosecuting traffickers.

To date there have been no prosecutions of traffickers under Commonwealth laws since their introduction in 1999. The successful prosecution of traffickers relies on the cooperation of the victims of traffickers, who without mandated support, protection or means of redress are unlikely to cooperate with law enforcement agencies. While the Australian Government has taken some steps in the right direction, current law and policy is now out of step with internationally agreed standards. The unintended consequence is that traffickers escape prosecution while trafficking victims are detained in inappropriate conditions, put at risk of being returned to an unsafe environment and exposed to possible re-victimisation.

The first internationally agreed definition of people trafficking is set out in the new UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. It also obliges signatory states to criminalise the conduct and to protect and support the victims of trafficking. Since re-modelling its domestic policy response to trafficking based on the Trafficking Protocol, the United States (US) has doubled its investigations and tripled its prosecutions for trafficking offences. Other European countries which have altered their approach from stigmatising victims to supporting them have similarly reported more success in prosecuting offenders.

Australia has signed the Convention and the Trafficking Protocol. As part of the domestic treaty process, the Federal Government will review domestic law before moving to ratification. This presents an opportunity to consult widely at the federal, state and territory government level, including with law enforcement agencies, social policy departments and Non-Government Organisations (NGOs), to develop a package of measures and operational protocols designed to achieve the dual goals of prosecution and victim support and protection.

Introduction

This paper provides an overview of the global trade in the trafficking of women and children into the sex industry. It sets out the regulatory challenges posed by trans-national crimes of this nature; discusses some of the difficulties in reaching consensus on the extent of the problem in Australia; explains the confusion between people trafficking and people smuggling; analyses existing criminal and migration law and practice; and suggests reasons why, to date, there have been no prosecutions of traffickers under the Commonwealth Criminal Code. The analysis is informed by domestic and international research and recent developments in international law that provide an internationally agreed definition of people trafficking. The paper refers briefly to strategies adopted in the US and in Europe to combat this crime. These latest developments suggest that a comprehensive whole of government approach designed to meet the interrelated goals of the prosecution of traffickers and the protection and support of victims is required to combat the crime of people trafficking. Existing Australian law and policy is assessed in light of these developments.

Trafficking Sexual Labour: A Trans-national Crime

The globalisation of the world economy has provided new and lucrative opportunities for criminal entrepreneurs to be relatively free from detection and prosecution.⁽¹⁾ With the compression of time and distance, alongside the rapid development of information technologies, criminal syndicates operate in a global village criss-crossing national borders.⁽²⁾ Yet the majority of the policy and legislative instruments and resources for responding, prosecuting and preventing crime tend to be limited by the boundaries of nation states. As such, single countries are strategically disadvantaged in curbing trans-national crimes involving fraud, money laundering, tax evasion, drug importation, firearms smuggling, terrorism, sex tourism, cyber-crime, people trafficking and the like. By operating outside the boundaries of the legal regulation of nation states, trans-national crime syndicates have been effective in evading law enforcement activities.⁽³⁾ Consequently their regulation poses a particularly difficult challenge for the 21^st century.⁽⁴⁾

There is, however, an increasing recognition that a more effective response to combating trans-national crime requires international and regional cooperation. A series of UN treaties, regional agreements and memoranda of understanding (MOU) has been signed by Australia as a critical step toward cooperating in an international environment to combat trans-national crime.⁽⁵⁾ Additionally a Trans-national Crime Coordination Centre was established within the Australian Federal Police (AFP) in December 2002.⁽⁶⁾ The centre aims to collaborate internationally to prevent, dismantle and investigate trans-national crime and will target investigations into five key trans-national crimes: terrorism, illicit drug trafficking, people smuggling, high tech crime and money laundering. There is no mention of the trafficking of women and children as a priority.⁽⁷⁾

Typically, trafficking is confused with smuggling when viewed simply as an illegal immigration issue or threat to national security and not as a human rights violation. Both people smuggling and trafficking are trans-national crimes that may at times involve organised crime syndicates in the illegal cross-border movement of people.⁽⁸⁾ However it is inaccurate to use these overlapping but distinct concepts as interchangeable terms. People trafficking into the sex industry involves the movement of people for the purpose of exploitation. It entails the violation of the human rights of trafficked victims, generally recruited from the poorest parts of the world and deceived, lured or abducted into servitude.

Unlike highly organised people smuggling operations, not all of those involved in people trafficking conform to the stereotype of organised criminality.⁽⁹⁾ As trans-national crime is organised around profit, a diverse array of loose knit criminal organisations or individuals may simply work together opportunistically motivated by material gain.⁽¹⁰⁾ Husbands, boyfriends, acquaintances, or family members may recruit and trade women into the international prostitution industry for profit, to repay debts or to support a family.⁽¹¹⁾ This makes the trafficking of women and children a more complex problem than the more organised smuggling of people for profit.

Size and Extent of Trafficking into the Sex Industry

International Picture

Due to the illicit nature of people trafficking, the number of women and children trafficked for commercial sex work is impossible to quantify. However, national and international sources agree that the global trade has increased substantially over the last decade.⁽¹²⁾ People are trafficked to work as low-paid illegal labourers, domestic servants, or into various forms of sexual exploitation in the lucrative international commercial sex industry. The United Nations has estimated that trafficking in the global sex industry generates a US$5 billion to US$7 billion profit annually.⁽¹³⁾

In any market there are demand and supply forces at work. Some argue that the commercialisation of sex on the Internet and satellite television have increased the demand for women and children from the developing world to be trafficked into these new sexual entertainment industries in the western world.⁽¹⁴⁾ Rather than organised criminal syndicates being at the centre of the growth of trafficking in women and children, according to some experts, the key players in the international sex industry in the 21^st century are more likely to be entrepreneurs operating in a liberalised global market.⁽¹⁵⁾ These entrepreneurs offer products in high demand by consumers prepared to pay substantial sums of money for the commercial sex services they offer.⁽¹⁶⁾

On the supply side, the rise in displaced persons during the 1990s and decreasing opportunity for regular migration are other factors contributing to the international growth of people trafficking. Refugee camps for displaced persons provide a ready pool of vulnerable women and children to be recruited into the global sex industry.⁽¹⁷⁾ According to the United Nations High Commissioner for Refugees (UNHCR) there are currently 19 783 100 persons of concern in the world. For a large number of displaced women and children, this displacement 'ends in sexual exploitation and debt bondage'.⁽¹⁸⁾

Estimates of the number of people trafficked around the world annually for sexual exploitation and other forms of exploitation vary from 700 000 to 4 million.⁽¹⁹⁾ In Europe the figure has been put at somewhere between 200 000 and 500 000 women and children.⁽²⁰⁾ In any one year it is estimated that around 50 000 women and children are trafficked into the United States, by lure, force, deception or coercion to work in the commercial sex industry.⁽²¹⁾ Many believe they are migrating across international borders to work as domestic workers, waitresses, or models for the fashion industry not the sex industry. Some women aware they are going to work as sex workers, are deceived about the conditions of work and find themselves in debt bondage, servitude or slavery.

Australian Estimates

In Australia, the high and continuing demand for young Asian sex workers, in excess of local supply, creates a market opportunity for traffickers in women and children from countries like Thailand, Philippines, China and Cambodia.⁽²²⁾ Australian brothels advertising exotic, oriental and Asian women are not hard to find in the on-line Yellow Pages directory giving some indication of the demand for their sexual services.⁽²³⁾ According to one authoritative estimate, the Australian trafficking industry nets approximately A$1 million per week to the organisers of the trade.⁽²⁴⁾

In 1995, the Joint Standing Committee on Foreign Affairs, Defence and Trade, was told that at any one time there might be 200 Asian prostitutes working in Australia who had been trafficked here by organised criminals suspected of being linked to drug trafficking.⁽²⁵⁾ In the same year, Chris Payne, the head of Australian Federal Police (AFP) investigation into sex trafficking, estimated that up to 500 trafficked women were working illegally in Sydney at any given time.⁽²⁶⁾

In 1996 the then Department of Immigration and Ethnic Affairs (DIEA) produced a Report into Trafficking of Women into the Australian Sex Industry.⁽²⁷⁾ While it accurately reports that the number of non-citizens working in the sex industry is 'unknown and estimates vary considerably' it presents a contradictory picture of the nature of trafficking into the sex industry in Australia.⁽²⁸⁾ The contradiction arises mainly from a lack of clarity around the definition of crimes involving trafficking. For on the one hand the report states there is 'no evidence' of women being coerced against their will to work in the Australian sex industry, yet acknowledges on the other that a 14-year-old Thai girl located in a brothel during a compliance inspection, was returned to Thailand. That report is now out of date and of doubtful value, relying as it does on a very narrow and apparently confused definition of trafficking.⁽²⁹⁾

Nevertheless, in 1999, in the second reading speech for the Criminal Code Amendment (Slavery and Sexual Servitude) Bill 1999, Senator Ian Macdonald remarked that: 'intelligence from Australian and overseas sources confirms that the problem is a significant one for Australia'.⁽³⁰⁾ He noted that the AFP had received information relating to 14 cases over the previous eighteen months, and that the National Crime Authority (NCA) was aware of 25 women being trafficked into Australia between 1992 and 1996, one of whom was allegedly a 13-year-old girl brought to Australia to pay her father's debt.

Senator Vanstone, then Minister for Justice and Customs and responsible for the development of the Bill, clearly regarded the issue as an important one for Australia and has made similar statements about the significance of the problem.⁽³¹⁾ More recently, however, Senator Ellison, the current Minister for Justice and Customs, has stated that there is no evidence of any large scale problem within Australia.⁽³²⁾

By contrast, Kathleen Maltzahn, coordinator of Project Respect, an organisation that promotes the rights of trafficked sex workers, has claimed that approximately 1000 women are trafficked into the country each year.⁽³³⁾ Phillip Ruddock, the Minister for Immigration and Multicultural and Indigenous Affairs (DIMIA), has disputed the credibility of this claim:

According to the Minister, since July 2002, only four women have made complaints about trafficking, 'that is they stated they were brought to Australia under false pretences by unscrupulous individuals for the express purpose of forcing them into a form of sexual slavery'.⁽³⁵⁾

These contradictory assessments arise partly from the lack of accurate statistical data and point to a need for independent research which can provide an up-to-date national picture drawing on an array of reliable sources. The under-reporting of crime is a common problem. This is especially the case for crimes of sexual violence.⁽³⁶⁾ Under-reporting is likely to be compounded for people trafficking offences where the victim may fear reprisal and may also be engaged in illegal activity. These problems led the Australian Institute of Criminology to conclude that the limited statistical data available on trafficking provides 'very few insights into the incidence of trafficking' in Australia.⁽³⁷⁾ In the absence of any reliable statistical data, it is not surprising that a number of widely varying estimates have been proffered drawing on an array of sources. Rough estimates of people trafficking into the sex industry are usually extrapolated from secondary sources such as NGO surveys, and estimates given by police investigators, sex workers or other professionals with local knowledge of the sex industry. Some of these methods may inflate the extent of the problem. By contrast it is probable that the Government's reliance on the actual number of complaints significantly understates the problem. Relying on cases identified by compliance staff is also problematic as DIMIA appears to be relying still on a very narrow definition of trafficking which we discuss below.

The Nature of the Problem in AustraliaConsent, Trafficking and Servitude

The difficulty of analysing the nature and extent of the problem in Australia is driven in part by the use of differing definitions of trafficking and whether illegal migration is linked with the related crimes of slavery and sexual servitude. The prevailing emphasis on border control also makes coherent discussion of the issue difficult, with the terms 'trafficking' and 'smuggling' used incorrectly as interchangeable terms.

Comments by Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs have defended the DIMIA policy of detaining and deporting illegal immigrant sex workers. In this context he stated that 'there have been some misleading assumptions with reports on trafficking confusing those who come to Australia willing to work in the sex industry, after agreeing to pay organisers for the arrangements'.⁽³⁸⁾ If the implication is that women who consent to cross borders to work in the sex industry can never be trafficking victims, then this too is questionable. While this is true for women who migrate freely and have control over their situation many women who believe they are migrating (legally or illegally to work in the sex industry) nevertheless find themselves victims of sexual servitude and slavery and other forms of exploitation such as debt bondage. Their initial consent to cross borders is irrelevant to whether or not they are in fact victimised by traffickers once in Australia.⁽³⁹⁾

In 1999, in a second reading speech of the Bill introducing the new laws of sexual servitude and slavery, Senator Macdonald recognised the nature of the problem, noting that women being recruited to work in the sex industry in Australia, 'are usually unaware of the conditions under which they will be required to work'.⁽⁴⁰⁾ He continued:

Many discover that the debts incurred to their agent or sponsor to arrange transport, travel documentation, accommodation and passports, are much higher than originally believed. Senator Macdonald put the figure between $40 000 and $50 000, noting that 'in many cases the recruits are detected by authorities and deported back home before they receive any payment for services'.⁽⁴²⁾

A recent Queensland study also found that illegal migrant women working under a contract arrangement had to provide sexual services to between 500 and 700 clients to repay this debt, before being free to leave the brothel or earn money independently.⁽⁴³⁾ An earlier Sydney study found that 80 per cent of immigrant sex workers were from Thailand, and that 90 per cent were working off debts to the brokers who organised their passage and placement.⁽⁴⁴⁾ During the period of debt bondage, these women are particularly susceptible to slavery and sexual servitude. Subservience to traffickers or their associates is typically maintained through debt-bondage, threats and abuse, passport confiscation, and threats of reprisal to the trafficked person's family.

The Commonwealth offence of sexual servitude may be committed regardless of whether women who migrate to work in the sex industry consent to do so. Yet it appears that those who do consent have been pre-judged and automatically disqualified as legitimate victims of these offences. This thinking harks back to the false distinctions that used to be applied to distinguish between deserving and undeserving victims in sexual assault cases.⁽⁴⁵⁾ It is also out of step with the new Trafficking Protocol to which we now turn.

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons

Australia has been an active participant in the development of a new UN Convention Against Transnational Organized Crime and its three supplementary protocols dealing with people smuggling, people trafficking and trafficking in illicit firearms. Together these new treaties provide a comprehensive legal framework to guide national governments' response to organised crime and to facilitate greater international cooperation between States.

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) was adopted by resolution A/RES/55/25 of 15 November 2000 at the 55^th session of the UN General Assembly. The Trafficking Protocol opened for signature with the Convention and the other two protocols at a high level diplomatic conference in Palmero, Italy, on 13 December 2000. The Convention and its protocols enter into force as international law, 90 days after the 40^th instrument of ratification has been deposited.⁽⁴⁶⁾ The Trafficking Protocol represents a significant international attempt to conceptualise trafficking, define trafficking in international law and provide a template for international cooperation to address the global problem.⁽⁴⁷⁾ Australia signed the Convention on 13 December 2000, the Smuggling Protocol on 21 December 2001 but its signature of the People Trafficking Protocol was delayed until 11 December 2002.⁽⁴⁸⁾ None of the instruments has yet been ratified by Australia.⁽⁴⁹⁾

Under the Trafficking Protocol trafficking in persons is defined 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 of benefits to achieve the consent of a person having control over another person, for the purpose of exploitation'.⁽⁵⁰⁾ Exploitation is not limited to sexual exploitation but, at a minimum, includes the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery and servitude (art. 3). There is nothing in the definition that limits deception to the nature of the work. Thus a woman who consents to work in the sex industry but is deceived about the conditions is in fact trafficked for the purpose of sexual servitude.

The issue of consent and the link between the definition of trafficking and prostitution was a controversial subject during negotiations on the draft text. Some parties wanted the definition of trafficking to include the phrase 'irrespective of the consent of the person'.⁽⁵¹⁾ While others who support voluntary migration for sex work argued that such a broad definition would include those who choose to move to work in the sex industry, broadening the scope of the protocol beyond the problem. A compromise was struck with the definition including a qualification that consent is not relevant where the threat of use of force or other forms of coercion, abduction, fraud, deception or abuse of power were used the purposes of exploitation.⁽⁵²⁾ The breadth of the definition was intended to ensure that all victims of trafficking are recognised and protected, not only those where force or coercion can be proved.⁽⁵³⁾

Importantly, State parties to the Protocol have recognised that effective action to prevent and combat people trafficking requires a comprehensive international approach in countries of origin, transit and destination that combines both the punishment of traffickers and the protection of victims.⁽⁵⁴⁾ To this end States that ratify the Protocol make a commitment to criminalise people trafficking (as defined in the treaty), provide witness protection and special assistance to trafficked persons, paying special attention to the women and children, and to prevent re-victimisation of trafficked persons. In short, the prosecution of traffickers and protection of victims are seen as mutually reinforcing goals to achieve the overall aim of combating trafficking in the short and long term. But as the ensuing analysis indicates the existing law falls short of meeting these new internationally agreed standards in relation to people trafficking.

Domestic Law

Australian lawmakers have gone some way to addressing the problem of trafficking for the purpose of sexual servitude and slavery but it is arguable that existing law does not yet reflect fully the new internationally agreed standards set out by the Trafficking Protocol.

First, there is no separate offence of 'people trafficking' in the Commonwealth Criminal Code. Instead, in 1999 the offences of slavery, sexual servitude and deceptive recruiting were introduced by the Commonwealth's Criminal Code Amendment (Slavery and Sexual Servitude) Act 2000. These new offences were intended to target traffickers and address the problem of international trafficking of people.⁽⁵⁵⁾ The Act was the Commonwealth's part of a proposed package of uniform commonwealth, state and territory offences to deal with the problem and apply where an international element is present.⁽⁵⁶⁾ The definitions of slavery and servitude are based on earlier international treaties from the 1920s and 1950s which predate the recent developments in international criminal law.⁽⁵⁷⁾ As such they are not entirely in step with recent developments, nor do they really address the nature of the problem in Australia.⁽⁵⁸⁾

Under the Commonwealth Criminal Code, 'slavery' is defined as occurring when ownership rights are exercised over another person and can arise from a debt incurred or contract entered into by the enslaved person (s. 270.1). It is not enough that the contract or debt is exploitative or oppressive alone, it must place that person in a condition where a power of ownership is exercised over him or her (s. 270.1). Slave trading also includes 'exercising control or direction over or providing finance for' the trade (s. 270.2). According to Senator Macdonald, the definition was intended to catch 'those who lie at the heart of the tradethe organisers, managers and financiers'.⁽⁵⁹⁾

'Sexual servitude' is defined as occurring when sexual services are provided because of force or threats and the person is not free to cease providing those services (s. 270.4). Importantly, the definition of threat includes not only threat of force but also the threat of deportation recognising that women without valid visas are at risk of constant threat of deportation by their agents, pimps or brothel owners.⁽⁶⁰⁾ The offence applies where, as a matter of fact, the woman is held in servitude regardless of her original consent to sex work.

However, the additional offence of 'deceptive recruiting', intended to target traffickers, is limited to deception about the nature of the work and does not capture the situation where women agree to work in the sex industry but are deliberately deceived about the conditions of work (s. 270.7). Deceiving a person for the purpose of sexual servitude, debt bondage or other forms of sexual exploitation is therefore not covered. There is however the offence of 'causing a person to enter into or remain in sexual servitude' which is available (s. 270.6 (1)). Of course this offence is also limited to sexual servitude and depends on proof of causation. And a person who conducts a business that involves the sexual servitude of another, namely, the managers, financiers and organisers, are also captured by s. 270.6 (2). Again these provisions go some way toward addressing traffickers, but it is arguable that they are not entirely in step with the Trafficking Protocol.

Prosecutions for Slavery and Sexual Servitude

The only known case of a conviction related to trafficking in Australia is that of Gary Glasner prosecuted under Victorian law before the Commonwealth offences came into effect. This brothel keeper was convicted of importing and imprisoning around 20 Thai women. The women were barred up in the Clifton Hotel until they repaid their debt to him for sponsoring their illegal entry into Australia through the provision of sexual services.⁽⁶¹⁾ He received a fine of $31 000 and a suspended sentence.⁽⁶²⁾ We understand that Criminal Justice Visas were used in this case to bring witnesses back into the country:

Despite the Minister's reassurance, to date there have been no Commonwealth prosecutions for the offences of slavery or sexual servitude.⁽⁶⁴⁾ In March 2003, a Senate Estimates Committee was informed that the AFP had undertaken 13 investigations into offences related to sexual servitude, that three were still under way, but that none had led to a prosecution.⁽⁶⁵⁾ The Federal Minister for Justice and Customs, Senator Ellison explained that:

According to media sources even when potential witnesses offer to assist, they are still swiftly deported.⁽⁶⁷⁾ Noi, a Thai woman recently deported following a raid for illegal immigrants in a Melbourne brothel, has alleged that DIMIA officers were not interested in her offer to help apprehend the traffickers who had locked her in a brothel, refusing to release her until she repaid a $50 000 debt by doing 750 jobs.⁽⁶⁸⁾ This allegation is disturbing as, on the available facts, if accurate, the case appears to meet the definition of sexual servitude. She was only in detention a few days before being deported. Wing, another Thai woman, currently in detention at the time of writing, has made a similar allegation.⁽⁶⁹⁾ DIMIA has in the past openly acknowledged that as the mandatory detention provisions of the Migration Act requires the detention and removal of unlawful non-citizens as soon as practical, 'there is little effective opportunity for such a person to remain in Australia to give evidence at the trial'.⁽⁷⁰⁾

Compliance actions by immigration officers bring them into frequent contact with a significant number of potential witnesses to, and victims of slavery and sexual servitude offences. For instance, from July 2002 to February 2003, 'immigration compliance staff located 134 people working illegally in the sex industry'.⁽⁷¹⁾ From 1998 to 2000 387 non-lawful citizens were picked up during immigration compliance actions.⁽⁷²⁾ The contact is usually brief because, as confirmed by a senior DIMIA executive before a Senate Estimates Committee, 'people who are located working unlawfully in the community generally leave Australia promptly'.⁽⁷³⁾ In defence of this policy, DIMIA has argued that 'it has never been easy to obtain information on the organisers and the couriers in the illegal sex trade as sex workers are either fearful of reprisals against themselves or their families, or possibly may wish to use the organisation again'.⁽⁷⁴⁾ This begs the question whether Australia is discharging its duty to protect victims of trafficking from further violations of their human rights. It is not a justification for prompt removal.

The unintended consequence of this policy is that foreign and local agents and brothel owners and pimps are enjoying immunity from prosecution in Australia as investigation is impossible without the cooperation and testimony of witnesses who are routinely deported. Meanwhile victims are at risk of being returned to an unsafe environment, exposed to possible re-victimisation or worse, while brothel keepers and traffickers have the added incentive to recruit again in order to recoup their losses, or maintain their profits.⁽⁷⁵⁾

Mechanisms to Protect Witnesses and Support Victims

From a public policy viewpoint, there is an inextricable link between legislation criminalising slavery and sexual servitude and the implementation of mechanisms to protect the human rights of trafficking victims.⁽⁷⁶⁾ We argue below that the realisation of the criminal justice objectives of the legislation, to convict traffickers, requires more than the protection of witnesses, it requires the support of victims as well.

Protecting Witnesses

Under the Convention and Trafficking Protocol the State party is required to ensure the physical protection of the witnesses as well as the protection of victims from retaliation and intimidation.⁽⁷⁷⁾ This may include, for example, non-disclosure of the witness's identity, giving evidence by video link and relocating the person to another State.⁽⁷⁸⁾ These instruments also require that victims be provided with assistance for their recovery.⁽⁷⁹⁾ The ongoing assistance to victims must be considered as a separate issue because not all victims of trafficking will be selected by investigating and prosecuting authorities to act as witnesses in criminal prosecutions.⁽⁸⁰⁾ However, measures of protection and ongoing assistance work hand in hand with an effective prosecution strategy to convict traffickers.

To assist with an investigation or prosecution, potential witnesses can be temporarily retained or be allowed to re-enter Australia on a Criminal Justice Visa and in theory granted protection under the Witness Protection Act 1994. But these general measures are not sufficiently tailored to meet the specific needs of trafficking victims, especially of women and children. Importantly, a Criminal Justice Visa is only available to victims selected as witnesses. Even so, it is not linked to any statutory provision for witness protection or trigger any other forms of assistance. Additionally, the procedure for granting a Criminal Justice Visa is cumbersome, involving a multitude of agencies, militating against their use.

A Criminal Justice Certificate must first be granted by either the Commonwealth Attorney-General, Director of Public Prosecutions or Police Commissioner⁽⁸¹⁾ before DIMIA may consider issuing the visa.⁽⁸²⁾ The process also assumes that law enforcement agencies have had sufficient time and access to potential witnesses to make a request to the relevant authorities. Media reports indicate that witnesses are routinely and promptly deported before being interviewed by law enforcement agencies.⁽⁸³⁾

None of the 124 sex workers picked up during compliance operations by DIMIA from July 2002 to February 2003 have been granted Criminal Justice Visas to remain in Australia.⁽⁸⁴⁾ This lends support to the argument that this mechanism is either underutilised or is inappropriate for this purpose. While it is possible that none were victims of trafficking, this seems highly unlikely. Of the trafficking victims located by DIMIA during compliance operations it also seems implausible that none were prepared to cooperate with the AFP. The problem may be lack of referral by DIMIA to the relevant law enforcement agencies, but some media reports also claim that the AFP have 'flatly refused to investigate allegations of sexual slavery'.⁽⁸⁵⁾ Under the current system, DIMIA may be put in a difficult position in cases where a victim is cooperating with a criminal investigation but the AFP fails to request a Criminal Justice Visa. Under the Migration Act 1958 DIMIA must, subject to some qualifications, deport an unlawful non-citizen as soon as reasonably practicable. The lawfulness of the detention may come into question if the process of deportation is delayed for the purpose of facilitating an investigation.

The Minister for Justice and Customs Minister, Senator Chris Ellison, has now ordered a review into the policing of sexual servitude and slavery to examine the issue of coordination between law enforcement agencies whose responsibility it is to investigate these crimes.⁽⁸⁶⁾ It will be important that the review examine both the deficiencies in the current law and policy and the need for more effective cross-portfolio operational protocols between the relevant departments and units.⁽⁸⁷⁾ All these matters need to be considered together as part of a coherent legislative and policy response that aims to meet the dual goals of prosecuting traffickers while simultaneously supporting victims.

Supporting Victims

The successful prosecution of traffickers relies on the cooperation of the victims of traffickers, who without mandated support, protection or means of redress are understandably reluctant about cooperating with law enforcement agencies. The treatment of sex workers like Noi, deported despite her offer of assistance to convict her traffickers, reveals a systemic failure to come to grips with the necessary support for trafficking victims in Australia. This case and others like it highlight the inconsistency between the strident enforcement of immigration law and Australia's domestic and international criminal justice objectives to convict traffickers. It also raises a real question about the Commonwealth's ability to meet the new standards envisaged and encouraged by the Convention and the Trafficking Protocol to provide trafficking victims with adequate support.⁽⁸⁸⁾

The Protocol requires that State parties 'consider implementing measures' for the physical, psychological and social recovery of victims (art. 6.2). It recommends the provision of appropriate housing, counselling and information about their legal rights, medical, psychological and material assistance and access to employment, educational and training opportunities (art. 6.3).⁽⁸⁹⁾ To date, statutory rights to counselling, temporary accommodation or financial assistance of the kind urged under the Trafficking Protocol is entirely missing from the Australian system. Thus the role social security and family and child services departments might play in supporting victims that would in turn increase their ability to cooperate with the police, has so far been overlooked. This will need to be addressed as part of Australia's preparation for ratifying the Trafficking Protocol.

Australia's failure to support the victims of traffickers was concretely highlighted by the death of Puangthong Simaplee in Villawood Detention Centre on 26 September 2001.⁽⁹⁰⁾ The inquest has sparked controversy with persistent questions being asked in the Senate and its committees about the Government's handling of victims trafficked into Australia to work in the sex industry.⁽⁹¹⁾

Ms Simaplee told immigration officials that she was trafficked into Australia in 1986 on a false Malaysian passport.⁽⁹²⁾ While the Deputy Coroner, Carl Milovanovich, was unable to confirm her history of sexual slavery, this being outside his jurisdiction, he was concerned enough to urge law enforcement authorities to address the trafficking of women into prostitution with 'vigour and appropriate resources'.⁽⁹³⁾ The Deputy Coroner found that in September 2001 immigration officers detained Ms Simaplee following a raid on a Sydney brothel in Riley Street Surry Hills.⁽⁹⁴⁾ Three days later she died in an observation cell while being treated by detention centre staff for heroin withdrawal.⁽⁹⁵⁾ The Deputy Coroner expressed concern about the adequacy of her medical care while detained in Villawood Detention Centre and recommended that consideration be given to the hospitalisation of detainees in such instances. He also recommended that DIMIA and Australian Correctional Management (ACM) facilities work with organisations like Project Respect 'which might assist in identifying, assessing and providing the appropriate medical, community and translator services to women who might be identified as being victims of trafficking.⁽⁹⁶⁾ Referring to the Trafficking Protocol, the Sex Discrimination Commissioner Pru Goward commented that, 'it is to be hoped that in the future this Protocol will protect the interests and needs of women like Simaplee and that her sad case is one never to be repeated'.⁽⁹⁷⁾

Special Visa Class, Temporary or Permanent Stay

A possible reason for the Government's apparent hesitance to address comprehensively concerns about its level of support for trafficking victims, is that the issue inevitably raises questions about their residency status. One way of reducing the black market in trafficked sex workers is to allow them to migrate lawfully to work in the sex industry under a special visa class of entry. Alternately the business migration stream could be expanded to include the sex industry, where there is high but unmet local demand for these workers. This idea, initially suggested by sex workers organisations,⁽⁹⁸⁾ was recently revived in Senate by Senator Greig.⁽⁹⁹⁾ While many may see the idea as politically unpalatable, it would go a long way to removing the exploitative conditions under which women from developing countries come to Australia to work in the sex industry. Once in Australia, they would no longer be vulnerable to the actions of traffickers or pimps who require their servitude in exchange for protecting them from immigration compliance operations. Nor would they have to enter into debt bondage, for their immigration could be arranged lawfully through DIMIA.

As a signatory to the Trafficking Protocol, the Commonwealth Government is required to consider providing the victims of trafficking with temporary or permanent residency on humanitarian grounds.⁽¹⁰⁰⁾ However, the Government took the unusual step of making a declaration at the signature stage,⁽¹⁰¹⁾ stating that nothing in the Protocol is to be seen as imposing obligations on Australia to admit or retain any person within its national borders that it does not already have such an obligation toward.⁽¹⁰²⁾ The statement is a clear indication of the Government's discomfort with the idea of humanitarian support for victims and it sends a clear message that it will not consider allowing temporary or permanent stay for the victims of trafficking into the sex industry. That said, neither the declaratory statement or the terms of articles 7 or 8,⁽¹⁰³⁾ displace Australia's obligations of non-refoulement under the 1951 Convention Relating to the Status of Refugees (CSR) and other international human rights treaties not to return a person to a country where they are at risk of persecution for a convention reason or otherwise at real risk of a violation of their internationally recognised human rights.⁽¹⁰⁴⁾

Applying for recognition as a refugee on the grounds of gender persecution is one of the few options open for trafficking victims to seek lawful residency status within Australia. But while Australia is one of the few countries to have gender guidelines the likelihood of success is remote. In some cases a trafficking victim might qualify for another type of substantive visa, such as a student or spouse visa, but this partial approach is not adequate either. Under the Migration Act 1958 there is no onshore mechanism by which a victim could apply for a protection visa on humanitarian grounds. Under the Act an applicant must have already been rejected for a protection or other visa before the Minister can exercise his discretion.⁽¹⁰⁵⁾ The Minister's discretion to grant a protection visa on humanitarian grounds is discretionary, non-compellable and therefore removed from the scrutiny of the courts.

Developments in the US and Europe

The approach of the US and in Europe stands in stark contrast to the current situation in Australia. As part of its overall strategy to deal with the global rise in trafficking the US State Department established a Trafficking Office. This office provides the victims of traffickers with access to services including immigration concessions, shelter, social assistance, medical care, privacy and protection, and voluntary repatriation.⁽¹⁰⁶⁾

Importantly, the US Trafficking Victims Protection Act of October 2000, created a new T visa for trafficking victims that allows for temporary residency of up to three years but may also lead to permanent residency in cases where repatriation could lead to further harm or extreme hardship.⁽¹⁰⁷⁾ This status is only available to those willing to provide information on traffickers to police and since introducing these measures the US has doubled the number of investigations and tripled the number of convictions for trafficking.⁽¹⁰⁸⁾

The US model was possible because of a fundamental shift in the attitude toward the victims of trafficking. The shift was from stigmatising the victim as an undeserving lawbreaker to supporting the victim with a view to actively seeking their cooperation to combat trafficking. The approach can be criticised as pressuring victims into participating in investigation but it does go a long way toward the obligations of protecting victims while achieving law enforcement objectives at the same time.

In Europe, Italy has adopted measures to protect trafficking victims regardless of their cooperation with police⁽¹⁰⁹⁾ and Belgium, the Netherlands and Spain provide temporary residence permits to victims although they are limited to those willing to give evidence.⁽¹¹⁰⁾ The Italian government has since reported a significant increase in the incrimination of traffickers.⁽¹¹¹⁾ In other countries in Europe trafficked women may apply for residence on humanitarian grounds.

What Direction will Australia take?

Some Australian Parliamentarians are already on record as favouring a more comprehensive approach to the issue. In 1995 for example, the Joint Standing Committee on Foreign Affairs, Defence and Trade recommended the Australian Government put in place 'programs which would recognise Australia's responsibilities for the protection and rehabilitation of the victims of trafficking' and where this was the case, 'consider this as a factor in any application which is made for a humanitarian visa'.⁽¹¹²⁾

Upon ratification the Government may make reservations to the Trafficking Protocol to avoid or limit further the obligations to provide assistance. This would avoid the existing contradictions between the Trafficking Protocol and the Migration Act 1958. However, as victim protection is one of the stated purposes of the Trafficking Protocol and integral to combating people trafficking, such a course may be seen as defeating the primary object and purpose of signing it.⁽¹¹³⁾

A more effective approach might be to accept the Trafficking Protocol in its entirety, remove the existing declaration, and consult widely within federal and state and territory governments and law enforcement agencies and the non-government agencies on the development of a package of measures and operational protocols that will achieve the goals of prosecution and victim support and protection. This approach would demonstrate our commitment to the governments of South East Asia that Australia is serious about protecting their nationals and complement our proven determination to combat the related but distinct crime of people smuggling. The UN Office of the High Commissioner for Human Rights has developed a comprehensive set of Recommended Principles and Guidelines on Human Rights and Human Trafficking that could usefully inform such a process.⁽¹¹⁴⁾ Agencies such as the Human Rights and Equal Opportunity Commission may also have a useful contribution to make, along with NGOs, the Office of Status of Women and other Government departments such as Social Security, and Family and Community Services.

Conclusion

Despite the introduction of Federal criminal laws in 1999 designed to combat trans-national trafficking of people for slavery and sexual servitude, to date there have been no prosecutions for any of these offences. The crux of the problem, identified by a variety of commentators,⁽¹¹⁵⁾ is that women trafficked into Australia to work in the sex industry are treated as commodities for exploitation by traffickers and brothel owners and illegal immigrants by the Government.

While securing the cooperation of potential witnesses may be difficult, recent developments in the US and Europe reviewed in this paper suggest that an approach which respects the human rights of victims is more effective in achieving the interrelated goals of prosecution and protection. In light of these recent developments and Australia's forthcoming ratification of the UN Convention Against Transnational Organized Crime and its supplementary Protocol on People Trafficking, it can be argued that it is timely to commission independent and thorough research into the extent and nature of the problem in Australia and review how best to align domestic law and policy with international best practice. While the Australian Government has taken some steps in this direction, this brief has demonstrated that existing law and policy relating to the victims and witnesses of trafficking is at best patchy and is now out of step with internationally agreed standards. At worse, the current approach of routinely deporting potential witnesses and victims can be seen to undermine the goals of protection and prosecution, putting victims at risk with sometimes life threatening consequences, while allowing traffickers to act with impunity in Australia and abroad.

Endnotes