The terms of reference asked the Committee to investigate the implications for Australia’s visa regime, and conformity with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol) regarding federal compensation for victims of modern slavery.
The Committee received a number of submissions on the topic of a federal compensation scheme and other support services available to victims of modern slavery in Australia, including the Support for Trafficked People Program and Human Trafficking Visa Framework.
This chapter examines the proposal for a federal compensation scheme and adequacy of existing victim support services.
Submitters highlighted that Australia’s approach to combatting modern slavery must be victim-centred with a ‘holistic human rights based approach’ to victim support.
The International Organisation for Migration (IOM) highlighted the importance of a victim-centred approach where support services are not contingent on participating in criminal prosecutions. The IOM submitted that its research consistently demonstrates that:
… the main reason most people migrate is for better work opportunities, and that prosecutions may last years, it is no surprise that victims are reluctant to self-identify. A victim-centred approach would aim to respond to these needs as the priority as a means of empowering beneficiaries to achieve longer term economic, social, and psychosocial self-sufficiency.
Similarly, the United Nations Office on Drugs and Crime (UNODC) submitted that Australia:
… should place the victims of trafficking in persons and their needs and interests at the centre of all intended legislative changes.
The UNODC noted that any reforms should aim to remove any barriers to coordination or communication between relevant authorities:
Legislative review should be made to ensure current law does not unwittingly stifle the identification and/or referral of trafficking victims, through placing barriers against the coordination or communication and exchange between various anti-human trafficking actors.
Under the National Action Plan to Combat Trafficking and Slavery 2015-19, victim support is one of four key priorities with the Australian Government committed to providing:
… holistic and victim-centred support to trafficked people, regardless of gender, age, disability, race, ethnicity, immigration status, sex, sexuality or the purpose for which they were exploited, and affords them access to an effective remedy.
Some submitters suggested that current law enforcement approaches to combatting modern slavery have not been victim-focussed. Ms Jules Kim, CEO of the Scarlet Alliance told the Committee that previous inquiries into human trafficking and slavery have focussed on legislative measures, resulting in Australia’s response to modern slavery being:
… largely skewed to policing, surveillance and prosecutions, at the expense of victim protection and human rights and the prevention of circumstances that create trafficking.
These submitters suggested that this law enforcement approach focusses on punishing rather than supporting victims of modern slavery crimes. The Employment Law Centre of WA submitted:
The potential victims of human trafficking therefore appear to be the ones bearing the brunt of the enforcement action, whereas the criminal syndicates who organise visa fraud and the exploitation of foreign workers seem to have largely escaped liability to date.
Submitters suggested this commitment to victim support could be strengthened through improvements to available victims support services and the establishment of a national compensation scheme.
Comparison with the UK Act
Submitters highlighted that any Australian modern slavery legislation must address the shortcomings in the UK Modern Slavery Act 2015 (UK Act) regarding victim support.
Submitters argued that the UK Act was too focussed on law enforcement and did not adequately provide for victim protection and support. International human rights lawyer, Dr Anne Gallagher AO, noted that the UK Act is ‘noticeably weak in the areas of victim protection and support’.
Similarly, Unseen UK, which administers a national victim support hotline, submitted that the UK Act was a ‘missed opportunity’ as it ‘failed to set out the care and support required to ensure victims get the help they need and deserve.’
Submitters highlighted that the victim support measures in the UK Act are not as strong as legislation in Northern Ireland and Scotland. Research by the Anti-Trafficking Monitoring Group (ATMG), a coalition of NGOs founded in 2009 to monitor the UK’s implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, found that certain measures in UK Act, including victim support, ‘fall short’ of legislation introduced in Northern Ireland and Scotland.
The ATMG’s research found that victims of modern slavery in England and Wales have ‘significantly fewer statutory support entitlements’ than in Scotland and Northern Ireland, noting that these jurisdictions place a legal duty on public authorities to:
… identify and support victims of human trafficking and other forms of exploitation, and transpose the minimum support standards set out in the Council of Europe Trafficking Convention and EU Trafficking Directive, and in some ways go beyond them.
Representatives from the Attorney-General’s Department told the Committee that, in the areas of ‘extended support for trafficking victims who assist with the criminal justice process and opportunities for trafficking victims to remain in Australia on temporary and permanent visas’, Australia’s frameworks are ‘arguably more comprehensive’ than the UK.
National Referral Mechanism
As noted in Chapter 2, the National Referral Mechanism (NRM) is the UK’s framework for identifying and referring victims of human trafficking to support services. The NRM is administered by the National Crime Agency (NCA). Potential victims of modern slavery may be referred to the NRM by first responders, such as law enforcement agencies and certain NGOs. Trained decision makers from the NCA’s Modern Slavery Human Trafficking Unit or Home Office Visas and Immigration (the Competent Authorities) then decide whether victims referred through the NRM should be considered victims of trafficking. If the potential victim is found to meet the ‘reasonable grounds’ threshold, they are granted a minimum 45-day reflection and recovery period. During the 45-day period the Competent Authority makes a ‘conclusive decision’ as to whether the victim is eligible for further support.
Between April and June 2017, 1200 potential victims were referred to the NRM, a three per cent increase on the previous quarter.
Support services under the NRM are delivered by the Salvation Army or its sub-contractors. During its visit to the UK in April/May 2017, the delegation from the Committee met with representatives from the Salvation Army to discuss the range of services provided to victims during the 45-day period.
Submissions from UK witnesses expressed concern about the effectiveness of the NRM and the adequacy of the 45-day recovery and reflection period. Ms Tanya Mathias, who had worked for two of the agencies sub-contracted by the Salvation Army, submitted that the time taken for the Competent Authority to make a decision under the NRM was often longer than the prescribed 45 days and that the process was unfair on victims:
Most of my clients waited in excess of six months before being interviewed by the Home Office. Under the NRM, a negative decision resulted in the client no longer being eligible for support by the service provider, and often being returned to their home country. There are many factors which compromise a fair decision, including (but not limited to) a survivor’s unwillingness to testify against their perpetrator (often due to fear), and inconsistent evidence being assessed. Unfortunately, many victims are not granted justice, and are often reliant on NGOs to advocate on their behalf for an appeal.
Role of the Independent Anti-Slavery Commissioner
As noted in Chapter 4, the UK Independent Anti-Slavery Commissioner (UK Commissioner) plays a role in coordinating and monitoring victim support. The UK Commissioner, Mr Kevin Hyland OBE, told the Committee that improving care and support for victims was one of his key five priorities, including working with NGOs delivering support services.
Mr Hyland has led a number of initiatives to improve victim support. In April 2016, Mr Hyland wrote to the House of Commons Work and Pensions Committee regarding his concerns about the support and protection available to victims of modern slavery in the UK. In response, that Committee launched an inquiry into victim support that reported in April 2017 and recommended that the UK Government:
… must introduce a system that will help victims to start piecing their lives back together. Not only is there a moral case for doing this but it can help to bring the perpetrators of these horrendous crimes to justice.
Mr Hyland has also expressed concerns about the operation of the NRM. Mr Hyland, told the Committee that he is seeking to improve access to support available under the NRM which he described as ‘inadequate’:
Recently I wrote to the government about this and there is a radical change that is being considered which will address that. I think when that person comes forward in that crisis situation there needs to be immediate support available. That needs to then be able to dovetail into all the different agencies—health, psychology, education.
Submitters suggested that the proposed Commissioner role in Australia should similarly take on responsibility for victim support. The Walk Free Foundation recommended that an Australian Commissioner should provide independent oversight of Australia’s response across all sectors:
… from those on the ground identifying victims and providing emergency support services, to the police enforcing laws and prosecutors pursuing offenders, to businesses addressing modern slavery within their supply chains.
The Committee agrees that a victim-centred, human rights approach to supporting victims must be central to Australia’s approach to combatting modern slavery.
The Committee considers that an Independent Anti-Slavery Commissioner, as recommended in Chapter 4, could play an important role in improving support for victims in Australia.
Victim support measures
The Australian Government administers two specific support measures for victims of human trafficking and slavery. Submitters suggested there are barriers to accessing the available supports. These measures are examined below.
Support for Trafficked People Program
The Australian Government provides a range of services for victims of modern slavery through the Support for Trafficked People Program (Support Program). The program is administered by the Department of Social Services and has been delivered by the Australian Red Cross since 2009. The Support Program is available 24 hours a day, seven days a week, 365 days a year in all states and territories in Australia.
People are referred to the Support Program by the Australian Federal Police (AFP). Eligibility for support is determined by the AFP and is based on whether a person is, or may have been, the victim of a human trafficking or slavery-related offence. The person must also be an Australian citizen or hold a valid visa. If the person is not an Australian citizen and does not have a valid visa, they may be granted a specific type of bridging visa under the Human Trafficking Visa Framework (discussed below).
Box 6.1 outlines the different streams of services available under the Support Program.
Box 6.1: Support for Trafficked People Program
The Support for Trafficked People Program is divided into the following streams:
Assessment and Intensive Support Stream: intensive support for up to 45 days to all trafficked people referred by the AFP, irrespective of whether they are willing or able to assist with the investigation or prosecution of a human trafficking or slavery-related offence. Recipients have access to the following services as needed: case management support; secure accommodation; a living allowance; an amount for the purchase of essentials such as clothing and toiletries; access to health care, including counselling; access to interpreters; and access to legal and migration advice.
Extended Intensive Support Stream: access to a further 45 days’ support for trafficked people who are willing, but not able, to assist with the investigation or prosecution of a human trafficking or slavery-related offence, for reasons including ill health, trauma or practical impediment. This extended period of support is provided on a case-by-case basis and automatically available to clients under the age of 18.
Justice Support Stream: longer-term support until the investigation and prosecution of a human trafficking or slavery-related matter is finalised. Recipients have access to the following support as needed: assistance with securing longer-term accommodation; assistance to purchase essential furniture and household items; access to Medicare and the Pharmaceutical Benefits Scheme; access to legal services and interpreters; assistance to obtain employment and training (including English-language training) if desired; links to social support; as well as case management support.
Temporary Trial Support Stream: intensive support (similar to that provided under the Assessment and Intensive Support Stream) for trafficked people giving evidence pertaining to a human trafficking or slavery-related prosecution. Recipients are entitled to short-term accommodation and a weekly living allowance.
Since the Australian Red Cross took over delivery for the Support Program in March 2009, 254 people have been referred by the AFP, including:
117 people (all female) exploited in the sex work industry, and
137 people (30 male / 107 female) subject to exploitation outside the sex work industry (40 were identified as being in, or at risk of, a forced marriage).
The Committee heard concerns that relying on the AFP to make referrals may limit the availability of the Support Program.
Anti-Slavery Australia suggested that the existing referral process is ‘too narrow’ and recommended that other agencies and NGOs should be able to refer suspected victims to the Support Program, recognising:
… that survivors of human trafficking and slavery may be fearful of meeting with law enforcement officials early in the identification process … with the result that some victims may be fearful of engaging with law enforcement and the consequence that they remain unidentified and ineligible for support.
Similarly, Ms Jules Kim, CEO of the Scarlet Alliance questioned why potential victims should have to engage with the AFP in order to be eligible for support:
… why do they need to engage with the police? They should have that 45 days of reflection beforehand. That would then give them the space and time to decide whether they want to get involved in a prosecution. I think it would actually lend itself to stronger prosecutions.
In the UK, the Independent Anti-Slavery Commissioner, Mr Hyland, told the Committee he also had concerns about referrals to support programs being conducted exclusively by police and immigration officials. To address this, Mr Hyland wrote to the relevant Minister asking:
… for that to change to be a more inclusive panel of experts which will include law enforcement but will also include health, housing, social services and local government so that the safeguarding and the future of that victim can be properly managed beyond 45 days to much longer than 45 days, and so they can get whatever is necessary to support them and also get support through the criminal justice system.
Ms Caroline Haughey, who undertook a review of the UK Act for the UK Government, told the Committee that Australia needs its own mechanism for referring victims to support, such as panel of advocates:
I think Australia could benefit from setting up their own system—a panel of advocates who are trained specifically to look for the needs and protect the needs of the vulnerable whose voices have been stolen from them by perpetrators.
More broadly, the Committee heard concerns about how law enforcement agencies identify victims of modern slavery. These challenges are examined in detail in Chapter 7.
De-linking from criminal proceedings
The Committee also heard concerns that access to the Support Program is too reliant on participation in police investigations and that many victims who may be unable or unwilling to contribute to investigations may be excluded. Representatives from the Red Cross suggested that while the program provides a valuable service for people participating in criminal proceedings:
… there are significant numbers of people, we believe, who are falling through the gaps or who may not be credible witnesses or be willing to be witnesses for a range of reasons but have humanitarian support needs.
A number of submitters suggested that access to the Support Program should be ‘de-linked’ from participation in criminal investigations. Stop the Traffik, representing a coalition of NGOs, suggested:
The provision of care and support must be non-coercive. This means that support and protections for victims should not be contingent on their willingness to participate in a criminal investigation. This could include for example, legislating for a reflection and recovery period, during which non-conditional support is given with the aim of providing victims with time and space to decide on their options, including whether they will cooperate with criminal justice agencies in the prosecution of their exploiters.
Professor Jennifer Burn, Director of Anti-Slavery Australia, told the Committee that linking access to the Support Program with participation in criminal proceedings was ‘absolutely inadequate’:
It is of grave concern to us that, beyond an initial period of support that is provided to any person identified by the Australian Federal Police as a victim of trafficking or slavery—which is available for 45 days or 90 days in some circumstances—continued support is absolute contingent on participation in a criminal justice process. This is a huge shortfall, because some victim survivors are unwilling or unable to participate in that process. They may be terrified about the effect that contributing to a law enforcement process will have on their wellbeing and the wellbeing of their family. They may be too traumatised. They may not be able to participate; yet they have been trafficked or enslaved and we abandon them after that initial period of support unless they can provide assistance to the police. That is absolutely inadequate.
Anti-Slavery Australia highlighted that the ‘de-linking’ of support from criminal proceedings was consistent with a 2012 report on Australia’s trafficking framework by the Special Rapporteur on trafficking in persons, especially women and children, Ms Joy Ngozi Ezeilo. This report stated:
The linking of ongoing support services to contribution to criminal processes should be removed, as it imposes an additional burden on victims of trafficking and does not represent an adequate acknowledgment of their status as victims.
Anti-Slavery Australia suggested that removing the requirement that victims contribute to police investigations would:
… recognise the complex and varied circumstances that victims of human trafficking and slavery in Australia face, and ensure that all victims have access to support, reflecting the seriousness of the human rights abuses that they have suffered.
The Committee notes that the Parliamentary Joint Committee on Law Enforcement (JCLE) recommended ‘de-linking’ access to the Support Program from compliance with criminal investigations.
Length of support period
The Committee heard concerns about the length of support available under the Support Program. For example, Ms Carolyn Kitto from Stop the Traffik told the Committee that:
For victims to receive support for 45 days or maybe 90 days is simply not adequate.
Human Trafficking Visa Framework
The Australian Government’s Human Trafficking Visa Framework (Visa Framework) enables foreign nationals who do not already hold a valid visa and are suspected victims of human trafficking or slavery to remain lawfully in Australia, and to access the Support Program.
The Human Trafficking Visa Framework comprises two visas – a temporary Bridging F visa (BVF) and permanent Referred Stay visa (RSV). These visas are outlined in Box 6.2.
Box 6.2: Human Trafficking Visa Framework
Bridging F visa (BVF): a person assessed by the AFP as a suspected trafficked person may be eligible for a BVF for up to 45 days for an initial period of rest and recovery. A BVF can also be granted to immediate family members in Australia. There is also an option to grant a second BVF for a further 45 days (making up to 90 days available) for additional rest and recovery.
If a trafficked person is required to remain in Australia to assist authorities with an investigation or prosecution, another longer-term BVF can be granted for the duration of the criminal justice process. People granted this BVF are permitted to work. These BVF holders may depart Australia and re-enter, provided they are still required to assist authorities with the criminal justice process.
Referred Stay (Permanent) visa (RSV): a trafficked person may be eligible for a RSV if they have made a contribution to, and cooperated closely with, an investigation into a human trafficking, slavery or slavery-like offence, and would be in danger if returned to their home country. This visa allows the holder to remain in Australia permanently, and immediate family members may be included in the visa application.
In July 2015, a number of reforms were made to the Visa Framework, including changing the Criminal Justice Stay (CJSV) visa to the BVF and the Witness Protection (Trafficking) (Permanent) visa (WPTV) to the RSV.
Between 1 January 2004 and 30 June 2016, the Department of Immigration and Border Protection (DIBP) has granted:
272 Bridging F visas (BVF);
211 Criminal Justice Stay visas (replaced in 2015 by the BVF);
132 Referred Stay visas (RSV) and Witness Protection (Trafficking) visas (WPTV).
Between 1 July 2016 and 28 February 2017, DIBP has granted 10 BVFs and 7 RSVs to support suspected trafficked people and their immediate family members.
De-linking from criminal proceedings
Submitters expressed concern that the BVFs and RSVs are only available to victims who make an active contribution to a criminal investigation.
Submitters argued that many victims of modern slavery are unable to contribute to criminal investigations. Anti-Slavery Australia noted that its research reveals:
… that victims of these crimes often suffer from extreme psychological distress as a consequence of the severe exploitative conditions that they have endured. This trauma can be exacerbated by re-victimisation during the criminal investigation process, for example by providing detailed statements and evidence to the police. For this reason, many survivors of trafficking and slavery are unable to continue to assist police in lengthy investigations of offences, even if they are initially able to do so.
Like the Support Program, submitters supported de-linking the Visa Framework with participation in criminal proceedings. Project Respect, an NGO that supports victims of trafficking in the sex industry, recommended that the Australian Government:
… take a survivor centred human rights approach to survivor/victim support schemes and de-link human trafficking visas from criminal proceedings. We believe this approach will result in higher quality evidence and witness participation. Ultimately, longer visa times and comprehensive support would lead to a higher conviction rate acting as a deterrent to traffickers.
Similarly, Anti-Slavery Australia recommended broadening the visa criteria for the RSV to:
… facilitate the grant of a visa pathway for survivors of human trafficking and slavery who are unable to contribute to criminal investigations due to compassionate and/or compelling circumstances.
The Committee heard that, following the 2015 review of the Visa Framework, eligibility for the RSV was broadened and the name changed from Witness Protection (Trafficking) Permanent visa to reflect that it could be issued in situations where victims ‘have assisted with a human trafficking or slavery-related investigation which has not resulted in a brief of evidence to the Commonwealth Director of Public Prosecutions’.
De-linking the Visa Framework and Support Program from the criminal justice system was considered in the 2013 Trading Lives report. That Committee recommended that the Australian Government review the Visa Framework and Support Program and ‘consider establishing an ongoing visa and access to victim support mechanism that is conditional upon victim assistance in the criminal justice process but not on securing a conviction’.
Anti-Slavery Australia suggested that the Visa Framework does not adequately recognise the importance of allowing victims of modern slavery in Australia to be reunited with their families. Anti-Slavery Australia highlighted ‘the trauma caused by family separation that severely impacts the emotional, psychological and social well-being of survivors of human trafficking’.
Anti-Slavery Australia recommended that the Visa Framework be amended to facilitate the reunification of families, particularly dependent children, including cases where the victim is participating in a criminal investigation or awaiting the determination of a permanent visa application.
Anti-Slavery Australia further suggested that the permanent RSV could be improved to support family reunion by removing the criteria that ‘an applicant must prove that they “would be in danger” if returned to their home country’. Anti-Slavery Australia suggested that this requirement means that identified victims of modern slavery:
… face potential repercussions if they visit family members, such as dependent children, in their country of origin. Travel movements may be used by the Department of Immigration and Border Protection to refute claims of danger that are a key component of the Referred Stay visa criteria. Therefore, there is a chance that parents applying for a Referred Stay visa will have the credibility of their claims scrutinised and their applications refused where they attempt to visit dependent children who reside offshore.
The Committee notes that the PJCLE recommended that the Australian Government ‘facilitates and expedites family reunification for victims of trafficking, slavery and slavery-like offences’.
Length of bridging visa ‘reflection and recovery’ period
The Committee also heard concerns about the period of time available for ‘reflection and recovery’ under the BVF. Ms Rachel Reilly from Project Respect, which supports victims of sex trafficking, told the Committee that the initial 45 day period does not allow adequate time for reflection:
In that time they are supposed to have a reflective period. Our knowledge is that in that time the AFP still requests them to support them in raising the prosecution. From there they are eligible to access the Support for Trafficked People program … but if they cannot provide enough evidence for a conviction to be raised they are exited and then they are forced to apply through other means, and that applies to a lot of the women we support that apply for protection visas. There really is not a lot of time given for people to really understand what they are going through to build that trust, to build that rapport, to even comprehend the experience that they have had or address any of the trauma that they have experienced.
Ms Reilly suggested that ideally the timeframe available under the BVF should be ‘infinite’, but ‘if you had to limit it’, suggested looking at limit of 6 months similar to other countries.
Similarly, the Human Trafficking Resource and Assistance Centre, which provides support to victims of trafficking, recommended that the BVF be extended to:
… allow victims more time to come to terms with what has happened to them, to seek professional assistance, counselling and support before deciding whether to contribute to an investigation.
Submitters suggested that the Committee consider a longer period for ‘reflection and recovery’. For example, UNICEF UK asked the Committee to explore the benefits of a 90 day period of support as ‘an integral part of a victim-focused response’.
Norton Rose Fulbright suggested that a 90-day visa period is more consistent with the Palermo Protocol. The 2012 report on Australia by the Special Rapporteur on trafficking in persons, especially women and children, Ms Joy Ngozi Ezeilo, concluded:
A 45-day reflection period may not be an adequate time period for persons who have been trafficked to reflect and make critical decisions. An initial automatic reflection period of 90 days for all persons would be more appropriate and in accordance with article 6 of the Trafficking Protocol.
The Committee notes that the Human Rights Sub-Committee previously considered the length of the ‘reflection and recovery’ period under the BVF in its 2013 Trading Lives report. The Human Rights Sub-Committee concluded that the automatic 45 day reflection period was ‘appropriate’, but recommended that suspected victims of trafficking should be able to apply for two additional 45 day periods ‘on the basis of evidence of psychological trauma in order to decide on whether they are willing and able to assist in an investigation’.
The Committee notes that a series of reforms were made to the Visa Framework in 2015. The Australian Government submitted that there is an option for victims to be granted a second BVF for a further 45 days, making up to 90 days available for additional rest and recovery.
The Committee recognises the significant support provided to victims of human trafficking through the Support Program and Visa Framework.
However, the Committee recognises that not all victims of modern slavery are willing or able to contribute to criminal proceedings, and considers that this should not exclude them from access to support.
Noting that many victims of modern slavery may be unwilling or unable to approach AFP officers, the Committee considers that other agencies should be given the ability to refer potential victims to the Support Program. The Committee considers that this should also apply to referrals to the BVF.
The Committee acknowledges that victims of modern slavery may be eligible for up to 90 days of support under the Support Program, and 90 days of rest and recovery under the BVF.
The Committee notes that the Human Rights Sub-Committee considered the adequacy of the 45 day ‘reflection and recovery’ period under the BVF in its 2013 report. The Committee acknowledges that victims may apply for a second BVF for a further 45 days of support.
The Committee notes that the UK Commissioner, Mr Hyland has expressed concern about the adequacy of the initial 45-day period of support available to victims in the UK.
The Committee considers that the current 45-day ‘reflection and recovery’ period available to victims under the BVF should be extended to allow victims adequate time to reflect and recover prior to contributing to any criminal justice proceedings. The Committee also considers that the initial 45-day period of support available under the Support Program should be extended to allow victims to time to recover.
The Committee notes that the Human Rights Sub-Committee also recommended that support through the Support Program and Visa Frameworks should be conditional upon assistance in the criminal justice process.
However, the Committee considers that access to both the Support Program and Visa Framework should be de-linked from the criminal justice process. The Committee recognises that this de-linking is consistent with a victim-centred human rights approach to victim support.
The Committee supports the recommendation by the PJCLE that access to the Support Program should be ‘de-linked’ from participation in criminal proceedings, and considers this should also be extended to the Visa Framework.
The Committee also supports Recommendation 6 by the PJCLE that the Australian Government should facilitate and expedite family reunification for victims of modern slavery.
The Committee recommends that the Australian Government de-links access to the Support for Trafficked People Program and the Human Trafficking Visa Framework (including the Bridging F visa and Referred Stay (Permanent) visa) from compliance with criminal investigations.
The Committee recommends that the Australian Government amend the Human Trafficking Visa Framework to facilitate and expedite family reunification for victims of modern slavery.
The Committee recommends that the Australian Government extend the ability to refer potential victims to the Support for Trafficked People Program and the Bridging F visas beyond the Australian Federal Police to other approved entities, such as the Department of Immigration and Border Protection, Australian Border Force, approved NGOs, state and territory police, the proposed modern slavery hotline operators and the Fair Work Ombudsman.
The Committee recommends that the Australian Government consider extending the 45 day ‘reflection and recovery’ period for victims on Bridging F visas to a minimum of 90 days, with multiple options for extension.
The Committee recommends that the Australian Government consider extending the 45 day period of initial support available under the Support for Trafficked People Program to a minimum of 90 days, with multiple options for extension.
Defence for victims
Submitters highlighted the need to better support victims in criminal proceedings. Ms Linda Rayment, Chief Executive Officer of the Human Trafficking Resource and Assistance Centre, told the Committee:
… a victim-centred approach is required in any anti-slavery legislation implemented. Victims who are better prepared and emotionally supported are in a better position to aid investigations and stand trial as witnesses, which … leads to more prosecutions.
Submitters highlighted that one of the key challenges in prosecuting modern slavery cases is ensuring participation from victims. The Committee heard that there are a number of barriers for victims which limit participation in criminal proceedings, including:
… lack of personal freedom, lack of evidence or legitimate work contracts, linguistic, cultural or social isolation, distrust and fear of government/authorities, control through debt, fear of retaliation from employers, fear of deportation or incarceration and lack of understanding of Australian workplace laws.
The Australian Government noted that one of the key challenges in securing convictions in human trafficking and slavery prosecutions is:
… because the cooperation of suspected victims is essential. In some cases, victims may be unable or unwilling to contribute to a criminal justice process due to trauma or threats by the alleged offenders. It can also be difficult to corroborate victims’ evidence to the high standard required in criminal prosecutions.
Principle of non-punishment
To better support victims, submitters suggested that Australia introduce legislative protections for offences committed during the victim’s exploitation, known as the ‘principle of non-punishment’ for victims.
As noted in Chapter 2, the UK Modern Slavery Act 2015 (UK Act) introduced the principle of non-punishment through a statutory defence for victims of slavery or trafficking who were compelled to commit an offence due to their exploitation. The UK Home Secretary submitted that the defence is designed ‘to encourage more victims to ask for help and give evidence against their traffickers, without fear that they themselves will be prosecuted’.
The UNODC submitted that any changes to Australia’s legislative frameworks should ‘pay particular attention’ to protection of victims in criminal proceedings:
… notably in protecting the victims from re-victimisation and adequate implementation, by the criminal justice system of Australia, of the principle of non-punishment of the victims for crimes committed in the course of their exploitation (to the extent that such involvement is a direct consequence of their situations as trafficked persons).
Ms Felicity Gerry QC, international barrister and academic, told the Committee that Australia’s common law and legislative provisions to provide defences for people who commit crimes when they are subject to exploitation are ‘currently wholly inadequate … particularly in relation to women offenders’. Ms Gerry suggested that Australia is required to provide such defences under its international law obligations.
Similarly, the Law Council of Australia supported extending the principle of non-punishment of victims to all victims of modern slavery and suggested that the Committee consider ‘whether the Criminal Code should be amended to contain a specific defence for victims of modern slavery who commit certain criminal offences’.
Ms Gerry highlighted that the need for this protection is particularly important for vulnerable women:
There is no mechanism to recognise what you might call vulnerability in the criminal justice system in Australia. And that particularly works very, very badly against women and perhaps explains why so many vulnerable women in particular are in prison.
In her submission on behalf of Civil Liberties Australia, Ms Gerry argued that sentencing frameworks ‘do not accommodate the vulnerability of coerced women sufficiently’ and recommended enabling access to an appeals framework for victims, particularly women in prison, who have been convicted for crimes committed as a result of coercion.
Ms Gerry told the Committee that, while the UK defence for victims is a first step, Australia could and should improve on this model:
… the Modern Slavery Act in the UK has at least taken a first step in providing some defences in relation to some offences … my view is that Australia has the opportunity to do rather better through this inquiry and come up with specific defences, specific guidance and approved referral mechanisms, sentencing guidance and so forth that take into account those issues of slavery, human trafficking and, frankly, wider coercion and vulnerability as defences.
Submitters suggested that other models of defences are more comprehensive than the UK and should be considered by Australia. For example, the UK Anti-Trafficking Monitoring Group (ATMG) highlighted that Scottish legislation requires the Lord Advocate to issue guidance on the prosecution of victims of human trafficking and exploitation. The ATMG argued that this guidance provides ‘an easily understood set of principles and guidelines on non-prosecution for lawyers and non-lawyers’ and is an ‘exemplary practice for monitoring and enhancing understanding of criminal practices’.
The UK Independent Anti-Slavery Commissioner, Mr Kevin Hyland OBE, told the Committee that the introduction of the defence has encouraged more victims to come forward:
… if the police believe that they are a victim, then no prosecution can follow because there is no offence, as it is a statutory defence. That has encouraged more people to come forward.
The Committee recognises that a victim-centred approach that prioritises support for victims is central to improving criminal justice responses to modern slavery.
The Committee acknowledges that a defence for victims who are compelled to commit a crime due to exploitation is not currently available under Australia’s legislative and policy frameworks.
The Committee considers that a defence similar to the UK Act would encourage victims to come forward and provide additional support. The Committee considers that the UK model could be improved to provide clearer guidance for judicial officers and a path to appeal for victims who have already been convicted.
The Committee agrees that the Australian Government should introduce specific defences for victims of modern slavery. In developing these defences, the Australian Government should consider the UK model, as well as best practice from other jurisdictions, such as Scotland.
The Committee recommends that the Australian Government introduce defences for victims of modern slavery offences who are compelled to commit a crime due to exploitation, similar to but improving on section 45 of the UK Modern Slavery Act 2015 and drawing from international best practice. This should include a pathway for appeal and/or expungement of criminal convictions for victims of modern slavery who have legitimate defences.
The Committee recommends that specific guidance (including sentencing guidance) be developed to support the introduction of these defences, which takes into account the impact of modern slavery, exploitation, coercion and vulnerability on victims.
National compensation scheme
A number of submitters recommended that Australia introduce a national compensation scheme for victims of modern slavery.
The Committee notes that Anti-Slavery Australia and the Law Council of Australia have long advocated for a national compensation scheme, recently releasing a report setting out the case for such a scheme funded by proceeds of crime or through the establishment of a special fund.
Obligations under the Palermo Protocol
Submitters suggested that, under international law, the Australian Government is obliged to ensure the availability of compensation for victims of human trafficking and slavery.
Article 6 (6) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol) requires states to ‘ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered’.
In 2012, the United Nations Special Rapporteur on trafficking in persons, especially woman and children, Ms Joy Ngozi Ezeilo, recommended that Australia establish a federal compensation scheme for victims of trafficking, noting this would ‘be in accordance with the obligations of Australia with respect to remedies under the Trafficking Protocol and international human rights law’.
Existing compensation schemes
The Committee heard that the existing state and territory victims’ compensation schemes are ‘inadequate’ and are not designed to specifically address Commonwealth offences like human trafficking and slavery. Professor Jennifer Burn, Director of Anti-Slavery Australia, told the Committee:
Currently, the only statutory pathway is through schemes administered by each of the states and territories. In our analysis of those schemes we can see that there are huge differences in the operation of the schemes. Essentially, they are not fit for purpose. They do not provide a pathway for compensation for people who have been trafficked or who may be held in forms of labour exploitation that are not contemplated by the states. Additionally, each of the schemes has different limitations of time, different areas of compensation payable and different processes. It is quite confusing and it is inadequate.
The Committee heard that there are significant variations in the eligibility criteria for compensation, and the amount of funds available, under existing state and territory schemes. Figure 6.1 highlights the maximum payments available under existing state and territory schemes, which range from $30,000 in Tasmania to $100,000 in South Australia.
Figure 6.1: Maximum payments available under state and territory victim support schemes
NB Victoria maximum payment is $60,000.
Source: Anti-Slavery Australia, Submission 156, p. 54.
As noted in Chapter 2, the UK Act introduced reparation orders that enable the court, where a person is convicted of a slavery or trafficking offence, to order the defendant to provide reparation to the victim.
The UK Independent Anti-Slavery Commissioner, Mr Hyland, told the Committee that the reparation orders provision:
…is one area of the act that has not been used that effectively, but it is also because the act is still new, cases are still going through and the proceeds of crime elements are still going through.
The Committee notes that, under section 21B of the Crimes Act 1914 (Crimes Act), Australian courts may already make reparation orders in human trafficking and slavery cases.
However, the Law Council of Australia and Anti-Slavery Australia noted that they are not aware of any case where an application for reparation orders under the Crimes Act has been sought in the context of proceedings relating to human trafficking, suggesting ‘reparation orders are an unlikely remedy for trafficked people under the current framework’.
Submitters suggested that a national compensation scheme would be more effective than the provision for reparation orders.
The Committee notes that the PJCLE recommended that the Australian Government consider ways to make existing reparation orders more accessible to victims of modern slavery.
Proposed national scheme
The Committee heard that a national compensation scheme is the missing component to Australia’s response to combatting modern slavery. Ms Fiona McLeod SC, President of the Law Council of Australia, emphasised that the Australian Government has a particular obligation to provide compensation to victims of modern slavery, noting this is:
… an issue where the federal government needs to take leadership. These are federal crimes. This is a federal commitment to support these people through a national action plan to rebuild their lives and to have some recognition of the harm that has been done to them while working in Australia or while being abused in Australia. And without that leadership there will be inaction.
Anti-Slavery Australia and the Law Council of Australia suggest that a national compensation scheme could be modelled on existing victims’ compensation schemes such as the Australian Victims of Overseas Terrorism Payments Scheme and the Defence Abuse Reparation Scheme. These schemes ‘set out effective pathways to compensation and remedies to victims, without the need for an admission of liability by the Commonwealth’.
Anti-Slavery Australia and the Law Council of Australia suggested the cap for a modern slavery compensation scheme should be in line with the existing state schemes, noting that the existing Commonwealth schemes provide guidance on appropriate maximum payment amounts and are capped at $50,000 and $75,000.
The proposed scheme would not replace existing state or territory schemes, and would allow victims the opportunity to apply under these schemes, if appropriate. The Law Council of Australia suggests the scheme could either be funded by confiscated proceeds of crime, or direct government funding.
Other submitters, including the Salvation Army Freedom Partnership, supported the proposal that eligibility for a national compensation scheme be separate to participation in criminal proceedings. Academics from Monash University highlighted the need to:
… break this link between visa support for foreign victims of modern slavery and their required participation in criminal investigations … by the introduction of a national compensation scheme wherein visas for foreign victims of modern slavery would be predicated on their being eligible for compensation.
Implications for Australia’s visa framework
Submitters highlighted that the introduction of a national compensation scheme would have minor implications for Australia’s visa framework.
Submitters highlighted that, under the existing state and territory-based compensation schemes, victims on temporary visas are prevented from applying and receiving payments.
Under a national compensation scheme, submitters recommended that victims should be allowed to remain in Australia until their application for compensation is finalised. Anti-Slavery Australia emphasised that it is ‘vital that survivors of human trafficking and slavery be allowed to remain in Australia until applications for compensation are finalised’.
Submitters suggested this could be achieved by extending the scope of the BVF to allow suspected victims of modern slavery to remain in Australia during the application and finalisation of any application for compensation, regardless of whether they are assisting in a criminal investigation.
The Committee’s 2013 report by the Human Rights Sub-Committee on human trafficking recommended that the Australian Government further investigate the establishment of a federal compensation scheme for proven victims of slavery and people trafficking. The Committee notes the Australian Government responded that it did not intend to establish the fund.
Professor Jennifer Burn, Director of Anti-Slavery Australia, told the Committee that this recommendation is ‘still outstanding’:
It is necessary to ensure that survivors do have access to a remedy and are compensated for the harms they experienced through trafficking and slavery in Australia.
The Committee notes that the PJCLE has also recently recommended the establishment of a national compensation scheme for victims of trafficking, slavery and slavery-like offences. The PJCLE recommended that the scheme be funded by proceeds of crime. Similarly, the NSW Legislative Council Select Committee on human trafficking recommended the establishment of a national compensation scheme.
The Committee notes that the issue of establishing a national compensation scheme has been considered over a long period by a number of parliamentary committees.
The Committee agrees that, as part of Australia’s victim-centred response to combatting modern slavery, the Australian Government should provide compensation to victims. The Committee considers this scheme could be modelled on other Commonwealth supported schemes such as the Australian Victims of Overseas Terrorism Payments Scheme and the Defence Abuse Reparation Scheme.
The Committee considers that a national compensation scheme would be consistent with Australia’s obligations under the Palermo Protocol.
The Committee considers that the implications for Australia’s visa framework would be minimal. The Committee agrees that victims should be permitted to remain in Australia while their application for compensation is considered and finalised.
The Committee supports the recommendations by its predecessor Committee and the PJCLE to establish a national compensation scheme. Like the PJCLE, the Committee recommends that the scheme be funded by the proceeds of crime where possible and/or through Australian Government funds.
The Committee recommends that the Australian Government establish a national compensation scheme for victims of modern slavery in Australia, modelled on existing victim compensation schemes administered by the Commonwealth.
The Committee recommends that eligibility for compensation should not be contingent on participation in criminal investigations or prosecutions.
The Committee recommends that victims who are not Australian citizens and do not hold valid visas, or who hold Bridging F visas, Referred Stay (Permanent) visas or other similar visas, should be permitted to remain in Australia while their application for compensation is considered and finalised.
The Committee recommends that the national compensation scheme should be funded through the proceeds of crime, where possible, and/or by the Australian Government.
Submitters suggested a range of other supports for victims be considered, including a statutory civil remedy, legal aid funding and risk and prevention orders.
Support for NGOs
Submitters highlighted the importance of funding NGOs to support victims of modern slavery. Ms Alison Rahill from the Salvation Army told the Committee:
… we need funding so that we can provide physical, psychological, emotional and spiritual support to victims of modern slavery, regardless of their nationality or their passport or the visa that they hold. Whether we like it or not, our country has helped to create this, and so I believe we have a moral obligation to fix it.
The UK Commissioner, Mr Hyland, told the Committee that the contribution of NGOs and civil society in supporting victims of modern slavery is essential. Mr Hyland noted that, in the UK, NGOs may seek funding from a range of sources:
The Salvation Army is funded by the government to the tune at the moment of nine million pounds a year to support the victims through that process. That is a well funded, well structured support mechanism. But there are other opportunities, other budgets that NGOs can bid into, whether through our Big Lottery Fund or Red Nose funding, and all these other opportunities that are giving substantial funds to victim care centres or to NGOs, but also groups like the Catholic Church and the Anglican Church … and the Jewish community. They are all funding projects as well.
The Committee heard that the Australian Government is committed to ‘building and maintaining strong relationships’ with NGO partners. Since 2008, the Australian Government has committed almost $5 million to support NGOs and other civil society organisations in their efforts to combat modern slavery.
On 30 July 2017, the Minister for Justice, the Hon Michael Keenan MP, announced that the Australian Government was awarding $500,000 from the Human Trafficking and Slavery Prevention Grant to four NGOs for anti-trafficking projects: the Salvation Army, Anti-Slavery Australia, the Australian Catholic Religious Against Trafficking in Humans (ACRATH) and the Australian Muslim Women's Centre for Human Rights.
The Committee heard that in administering this funding, the Attorney-General’s Department (AGD) invited six specialist NGOs to apply to a ‘targeted competitive grants round’. The Committee notes that this approach is consistent with the Commonwealth Grants Rules and Guidelines, the Public Governance, Performance and Accountability Act 2013 and best-practice grants administration.
The Committee heard concerns that funding for two of these NGOs, Scarlet Alliance and Project Respect, who were invited to apply and were formerly funded to support sex workers and prevent sex trafficking, was not renewed.
The Committee agrees that government funding for NGOs in supporting victims of modern slavery is essential. The Committee supports the Australian Government’s ongoing funding of NGOs through the Human Trafficking and Slavery Prevention Grant, and the enhancement of this funding where possible.
However, the Committee is concerned that the targeted competitive grants process administered by AGD has left some NGOs without funding. The Committee recommends that the Australian Government review its processes for administering grants for NGOs supporting victims of modern slavery.
The Committee recommends that the Australian Government continue to fund NGOs and civil society to support victims of modern slavery, and increase this funding where deemed appropriate.
The Committee recommends that the process for administering grants from the Human Trafficking and Slavery Prevention Grant be reviewed to ensure victims of modern slavery receive appropriate support.
Statutory civil remedy
Some submitters supported the introduction of a right to civil remedy which would allow victims of modern slavery to bring a civil case against those involved in their exploitation. Ms Fiona McLeod SC, President of the Law Council of Australia, told the Committee:
All the research shows that when you empower victims by making a payment, whether it is the ex gratia type payment available under victims of crime compensation or whether it is a tortious type of compensation, you empower victims to get on with and rebuild their lives. So, it is a crucial component that is currently missing from our response.
These submitters highlighted that a similar civil remedy for trafficking and forced labour exists in the US, and a bill has been introduced in Canada which would allow victims of human trafficking to bring civil actions against anyone involved in their trafficking.
The IOM submitted that an ‘emphasis on civil remedy options, including for irregular migrants who have been subjected to abuse and exploitation presents several important untapped advantages’, namely:
Unlike a criminal justice action, which prioritises the conviction of the accused, the express purpose of a civil claim is to compensate the plaintiff for the harm suffered. A better understanding of civil remedy opportunities may therefore encourage more complainants (victims) to come forward and report the abuses committed against them since the objective is of direct benefit to them;
A claim in tort requires a lower burden of proof than does a criminal charge. While the evidentiary challenges of prosecuting human trafficking cases are well known, establishing fault in cases where migrant workers have experienced abuses is more easily achieved when assessed on a balance of probabilities.
A significant monetary award can assist the complainant’s successful reintegration into society, breaking the chain of poverty, exploitation, and social ostracisation which is common to exploited migrant workers.
The threat of civil litigation for mistreatment can help to deter unscrupulous employers from engaging in abusive practices. Some employers are likely to take more care in their treatment of migrant workers if there is a real risk that the worker will seek damages.
The Law Council of Australia suggested a civil remedy would be ‘more effective’ in ensuring that the proceeds gained from modern slavery go to victims:
… as proving a civil case carries a lower burden of proof ("on the balance of probabilities") than a criminal prosecution ("beyond reasonable doubt"), and does not suffer from the usual difficulties involved in bringing criminal charges against a non-natural person.
Similarly, Anti-Slavery Australia submitted that a statutory civil remedy ‘would be preferable to existing common law remedies, and would assist survivors to overcome significant doctrinal and procedural difficulties’.
Some submitters suggested that victims of modern slavery should have greater access to legal aid and other advice services in Australia. The Law Council of Australia argued that:
Legal aid is essential to ensure that survivors can get the help they need and avoid falling victim to modern slavery again.
Submitters suggested that Australia is obliged to provide legal aid under international law. Under article 6.3 (b) of the Palermo Protocol, states are required to provide victims of trafficking with ‘[c]ounselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand’.
The Committee also heard concerns that victims who participate in criminal proceedings in Australia may be subject to harm or recriminations when they return to their home country. The Refugee Council of Australia recommended that victims of trafficking who fear persecution or harm if returned to their home country should be given information, support and legal advice to apply for protection in Australia.
The Committee agrees that in addition to access to compensation, victims of modern slavery in Australia should have a right to civil remedy against those involved in their exploitation.
The Committee agrees that victims of modern slavery should have access to support services, such as legal aid, to assist them in applying for support through the Support Program, Visa Framework and proposed national compensation scheme.
The Committee recommends that the Australian Government introduce a right to civil remedy for victims of modern slavery.
The Committee recommends that the Australian Government consider ways to better enable victims of modern slavery to access support and compensation, including by ensuring victims have access to legal aid.
Prevention and risk orders
Some submitters suggested that Australia should consider introducing slavery and trafficking prevention orders, similar to the UK Act.
As noted in Chapter 2, the UK Act introduced two new civil preventative orders that enable prohibitions to be imposed by the courts on individuals involved in trafficking or slavery, or convicted of a slavery or trafficking offence, being the:
Slavery and Trafficking Prevention Order (STPO); and
Slavery and Trafficking Risk Order (STRO).
UK barrister, Ms Caroline Haughey, submitted that in the UK context, the orders:
… have been a huge success both interim and at the conclusion of trials ... The have achieved their preventative intention and assisted police officers in providing ongoing protection to victims.
Ms Haughey told the Committee that the orders are ‘still new… since there have not been many cases that have come to fruition’ and only a few have been issued. Ms Haughey suggested that, to date, the orders have been ‘an excellent preventative measure’:
We know from experience that those who are involved in exploitive offences and their victims often return to each other, particularly because the victims have often been psychologically traumatised in such a way as they see their perpetrators as being the only people that they can go to.
In Australia, the Fighting for Justice Foundation argued that legislation ‘does not appear to contemplate the possibility of preventing the harassment of victims or even further offences’ and recommended the introduction of similar prevention orders in Australia.
The Australian Lawyers Alliance suggested that orders could be a ‘potentially powerful tool in protecting victims and preventing slavery and trafficking offences from occurring, and preventing offenders from evading justice’, but if they were to be implemented in Australia would need to:
… balance the rights of victims appropriately against the rights of suspected perpetrators to be presumed innocent until proven otherwise.
However, other submitters, including Anti-Slavery Australia suggested that the UK prevention orders are not relevant to Australian legislation and would contradict Australia’s obligations under the Palermo Protocol. These submitters expressed concern that the orders could place restrictions on those suspected, but not yet convicted, of modern slavery offences.
The Scarlet Alliance argued that the UK prevention orders ‘contravene the fundamental principles of Australia’s legal system’ and ‘violate our fundamental understanding of fair trial and due process which is a fundamental precept in Australian society and understandings of justice’. Ms Jules Kim from the Scarlet Alliance told the Committee the orders are ‘problematic’:
It does contravene the way Australia approaches the criminal justice system—the idea of having due process and the right to be found innocent unless you've been found guilty by the courts. The STPOs and STROs are problematic in that they circumvent the justice system and could be used in problematic ways.
The Australian Government submitted that these measures are already present in Australian law and practice as courts are ‘able to make a range of orders to protect victims from criminal conduct, including apprehended violence orders’. Representatives from the Attorney-General’s Department told the Committee that the risk and prevention orders:
… do not have a direct correlation here. We have types of orders in the criminal system, but not related specifically to this issue.
The Committee notes that it received limited evidence on the risk and prevention orders introduced in the UK Act.
The Committee acknowledges evidence that suggests these risk and prevention orders have proven to be effective measures in the UK. However, the Committee recognises that only a small number of orders have been made to date.
The Committee acknowledges concerns that to introduce similar orders in Australia could be problematic. The Committee acknowledges that Australian courts are already able to make a range of orders to protect victims from criminal conduct.
The Committee is of the view that the need for similar prevention orders be considered as part of the legislated three year review of the Modern Slavery Act by the Independent Anti-Slavery Commissioner.