Chapter 3 - The response of Australian governments
This chapter examines the response of Australian
governments - Commonwealth, state and territory - to the problem of trafficking
of women, as well as focusing on the first and second terms of reference:
(1) The Australian
Crime Commission's work in establishing the extent of people trafficking in Australia
for the purpose of sexual servitude.
(2) The Australian
Crime Commission's relationship with the relevant State and other Commonwealth
In considering the role of the ACC and its relationship
with other agencies, the chapter begins with an overview of the various roles
and jurisdictional responsibilities of the many players involved in combating
the trafficking of women for sexual servitude.
The chapter then addresses a number of issues that
emerge from these relationships. In particular, the coordination of action and
information sharing between the numerous relevant agencies, and the provision
of support for, and protection of the victims of trafficking. The chapter also
examines the wider adequacy of the Commonwealth government anti-trafficking
Overview of agency responsibility
Combating the trafficking of women is necessarily a
complex task involving a number of agencies across the federal and state
jurisdictions, as well as cooperation across portfolios. Listed below are the principal
In the context of combating the trafficking of women
for sexual servitude, the ACC the role is threefold relating to threat
assessment, intelligence coordination and crime investigations. These are
detailed in the ACC submission:
ACC Support to Defining National Criminal
Intelligence Priorities (NCIP). In May 2003, the ACC produced a classified
Overview Threat Assessment designed to support ACC Board decisions on NCIPs. It
contained a general assessment of the regional and Australian people
trafficking context. As part of deliberations on over 56 threat issues, the ACC
Board designated 'illegal and indentured prostitutes' as a Category B NCIP.
Production of a Strategic Criminal Intelligence
Assessment. The ACC is finalising a classified assessment on the nature and
future of trafficking of people to Australia for sexual exploitation.
ACC Operational Activity. The ACC is currently
conducting an intelligence probe in cooperation with partner agencies and on 4
December 2003, received a Board Authorisation and Determination to conduct a special
intelligence operation specifically in relation to people trafficking. It
collected additional information in the course of operations under the 'Midas'
national criminal intelligence agency, the ACC maintains the Australian
Criminal Intelligence Database (ACID), and the Australian Law Enforcement
Intelligence Net (ALEIN).
As the Commonwealth government's primary law
enforcement agency, the AFP focuses on investigating offences under
Commonwealth law, which includes complex and serous transnational criminal
activity, smuggling, and trafficking. Of particular relevance to this inquiry
are investigations of offences created by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999.
To conduct these investigations, the AFP established a
Transnational Sexual Offences Team (TSOT) in December 2002, within the
Transnational Crime Coordination Centre (TCCC). As part of the government's new
package, the TSOT has been enlarged, becoming the Transnational Sexual
Exploitation and Trafficking Team (TSET). Still part of the TCCC, the TSET is a
mobile force comprising 23 officers and focuses on both trafficking of women
for sexual servitude and child sex tourism. The TSET
comprises an intelligence team in Canberra
within the TCCC, with mobile investigations teams based in Sydney
and Melbourne. The Team thereby aims to provide an
'intelligence driven, flexible and mobile' response to investigations.
A crucial strength of the AFP is its International
Liaison Network, which provides for the exchange of information with other law
enforcement agencies, and includes AFP officers based in 23 countries.
Another AFP role is the provision of specialist
training for investigations into trafficking offences. The first of these
training programs commenced on 16
February 2004, and is a three week residential course delivered at
the AFP College
in Canberra. The course includes
content provided by non-government organisations and experts such as Mr
the former head of operations at Britain's
New Scotland Yard and an expert in combating people trafficking.
Although the first course was limited to twenty AFP
personnel, future courses will be offered to officers of other agencies,
including state and territory police forces.
The Committee also notes that the AFP has for some time
had an active interest in people trafficking in the sex industry, with the 1992
'Operation Paper Tiger' described as the first sustained attempt by police to
combat the 'contract girl' rackets in Sydney.
Department of Immigration, Multicultural and Indigenous Affairs
DIMIA is responsible for the administration and
enforcement of the Migration Act 1975
including the detection and detention of unlawful non-citizens, plus
investigation of people smuggling and migration fraud related offences.
By reason of raids by the DIMIA compliance teams,
targeting unlawful non-citizens working in brothels (as well as other work
places), DIMIA is often the agency that first encounters trafficked women. As such, DIMIA's
sensitivity to the problem is crucial to the successful detection and
prosecution of traffickers.
DIMIA has developed guidelines to assist its officers
identify possible instances of trafficking. As part of the interview process,
all sex workers located are questioned in relation to the circumstances of
their recruitment, working conditions and freedom of movement in Australia, as well as
being asked a number of more indirect questions designed to get behind prepared
The guidelines have been distributed to DIMIA Compliance and Investigations
staff around the country.
These are to be reinforced by formal training sessions
as well as by a network of sex industry contact staff that has been put into
place in all State and Territory offices to provide the first point of contact
for all DIMIA sex industry related activities.
Supporting the compliance teams, DIMIA also has its own
Intelligence Analysis Section that is DIMIA's link into the wider intelligence
The Committee notes that a number of women who may have
been trafficked are deported within a short timeframe. While not wishing to
criticise or impede the efficient administration of the law by DIMIA, the
Committee is concerned that women should not be detained, processed and then
deported so quickly that their full circumstances and stories are missed. This
is certainly foreseeable where the raid, questioning and detention occur in the
space of a few hours, potentially in the middle of the night.
While recognising the new lower referral triggers used
by DIMIA (discussed below), authorities should ensure that women are not
questioned in ways that would lessen the chances of their true circumstances
emerging, leading to the possible failure to identify victims of sexual
trafficking and the loss of evidence to the Commonwealth.
State and local
As the submission from the Attorney General's
Regulation of the sex industry is a State and Territory
Government responsibility. It is important that each State and Territory
Government address the issue of trafficking in persons into the sex industry,
whether legal or illegal in that jurisdiction, through the relevant regulatory
processes. A number of commentators and experts on trafficking in Australia
have highlighted the importance of State and Territory Governments ensuring
that their sex industries are not a haven for traffickers.
The eight state and territory police services, as the
frontline of community policing across the country, have an obviously crucial
The local councils, especially in the inner city
suburbs of the major cities like Sydney and Melbourne,
are also significant - albeit indirect - players in combating trafficking of
women by reason of their role in enforcing planning and workplace safety laws.
As such, together with DIMIA officers, local government inspectors are the
government officials most likely to have reason to inspect brothels, and
therefore likely to discover trafficked women.
Thus for example, the City of Yarra
enforce the planning scheme in the Planning
and Environment Act, and the provisions in the Prostitution Control Act. According to one Council official:
We have a major role to play. We are at the coalface, if you
like. ... I personally have been in at least 32 illegal brothels and all our
legal brothels at least twice in the last 16 months. I know how they operate; I
know who is in there. I know what they are doing.
He comments that Council officers are frequently on site
before the Police or DIMIA, in part because they will are often the ones to
receive tips from legal brothels rivals seeking to get rid of illegal rivals.
Commonwealth Attorney General's Department
The Commonwealth Attorney General's Department has three
principal roles in relation to combating the trafficking of women.
First, it is responsible for coordinating the efforts
of the various portfolios involved in the government response. As such, an
officer of the department also chairs the Interdepartmental Committee on People
Trafficking for Sexual Servitude.
Second, the department has primary responsibility for
assessing the adequacy of the legislative framework that underpins the
government response to the trafficking of women, as well as sponsoring
amendments where necessary.
Finally, the AGD is tasked with the development of the
community awareness strategy that forms part of the Commonwealth Action Plan. The plan is
discussed in detail below.
Office of the Status of Women
The Office of the Status of Women, sitting within the
Department of the Prime Minister and Cabinet, is responsible for the planning
and administration of the Victim Support package (detailed below), and is also
a member of the Inter-Departmental Committee. Importantly, while officers of
the OSW developed the support package, the agency is not responsible for the
delivery of the package, but rather the administration of the contract to
supply the support services.
The Australian Agency for International Development
(AusAID), manages the Australian Government's official overseas aid program
and, in the context of combating the trafficking of women, has been given the
role of providing the overseas component of the victim support measures.
For those women who have been returned to their country
of origin, voluntarily or otherwise, the AusAID programs will try to replicate offshore
the Australian based Victim Support package. This assistance will aim at the
reintegration of the women into their own country, particularly in relation to
skills training that will minimise the women's vulnerability to being re-trafficked.
Little detail of how the AusAID component of the
package will operate has been provided to the Committee. It is clear that
AusAID has a vital potential role in tackling the supply of sex workers at its
source. As the International Commission of Jurists explained:
To deal effectively with the problem of trafficking it is
necessary to understand the underlying causes, the most important of which are
poverty and lack of education. The Protocol identifies poverty,
underdevelopment and lack of equal opportunity as factors making persons,
especially women and children, vulnerable to trafficking.
Nevertheless, the reasons behind the economic migration
of workers, in the sex industry and other areas, is part of a global phenomenon
and one that is beyond either AusAID's or Australia's
capacity to rectify.
and the whole of government approach
As is evident from the summary of relevant agencies set
out above, an effective response to the problem of trafficking in women
requires the effective coordination of policy, information and resources across
all levels of government. The need for this coordination is well understood - Ms
Blackburn of the Attorney General's
Department telling the Committee that the government package specifically aims
to provide 'a comprehensive and coordinated whole of government approach'.
This section examines how this coordination process
takes place and then assesses the effectiveness of the outcomes.
Overview of coordination mechanisms
There are a number of coordination mechanisms in place,
ranging from general high level policy coordination, down to the operational
level of individual investigations.
At the international level, the Australian government
is involved in a number of regional diplomatic efforts to improve intergovernmental
cooperation to combat trafficking, including two Regional Ministerial
Conferences on People Smuggling, Trafficking in Persons and Related
Transnational Crimes (the Bali conferences). The
Ministers for Foreign Affairs, Immigration and Multicultural and Indigenous
Affairs, and Justice and Customs, led Australia’s
delegation to both these conferences. Senior officials also participated in:
legislative workshops which aim to assist countries develop
suitable legislation to address trafficking in persons. With China,
for example, Australia
prepared model legislation on trafficking in persons. With Thailand,
co-ordinating the next legislative workshop on 10-11 November 2003 which will
have a specific focus on trafficking in persons. The head of the Office of the
Status of Women led Australia’s
delegation to the Expert Group Meeting on the Prevention of International
Trafficking and Promotion of Public Awareness Campaigns in the Republic
of Korea on 22-23 September 2003.
The AFP continue to negotiate Memoranda of
Understanding with regional countries on developing police cooperation to
combat transnational crimes, including trafficking of women. Similarly, a
senior officer of the ACC has recently conducted a seven-country tour of
discussions on intelligence sharing. Mr Kitson
In the countries I visited recently there was a widespread
recognition of the nature of the problem, the scale of it and the need for
international cooperation to address the issue. ... We have seen agencies in the
countries that I have visited, which included the Philippines, Thailand,
Malaysia, Singapore, Hong Kong and Korea, indicate to us that they are prepared
to push intelligence through the AFP to us in areas where they may not
previously have done so ... .
At the national level, there are five groups relevant
to this inquiry and which consider (among other things) the trafficking of
women for the sex trade:
The Australian Police Ministers Conference
The Australian Crime Commission Board, which comprises
the Commissioners of each of the State and Territory Police Forces, chaired by
the Commissioner of the AFP, and including the Director-General of ASIO.
The Australasian Crime Commissioners' Forum
The Heads of Criminal Intelligence Agencies.
The National Information Sharing Working Group.
Within the context of the ACCF, the AFP is leading the
development of the Australian Policing Strategy to Combat People Trafficking.
The strategy will be finalised by the APMC in July 2004. The framework for this
strategy has six focus areas: prevention, capacity and resources, victim
assistance, partnerships, training and education, and regulation and
At the Commonwealth level, and specific to the issue of
the trafficking of women, is the interdepartmental committee comprising
representatives of twelve agencies across the Commonwealth. This Committee was
tasked with the development of the Commonwealth action plan and has a
continuing responsibility to monitor and report on its implementation and to
evaluate its effectiveness.
At a more operational level, ACC officers have
conducted briefings with state and territory police to ensure that they fully
understand the ACC's powers and how to access them, which promises to improve
the effectiveness of law enforcement agencies across all areas of their
activities. The ACC also briefs local police commanders on ACC Board
determinations and the type of information that the ACC is looking for.
Mr Clark, the ACC General Manager of Intelligence
Services, told the Committee that these efforts have seen the creation of an
informal network that should ensure that the ACC's special investigative powers
are used to best effect and that agencies such as the AFP and DIMIA get the
best possible information.
There have also been recent refinements to the
relationship between DIMIA and the AFP. A key document covering the relations
between DIMIA and the AFP in relation to the investigation of the trafficking
in women is the February 2002 Service Agreement which puts in place formal
arrangements for the referral of investigations by DIMIA to the AFP.
This agreement was tightened in May 2003, with the
signing of a protocol:
The May 2003 protocol has been designed with very low thresholds
for referral to the AFP. In practice this translates to any possible
trafficking-related matters that come to DIMIA attention being immediately
referred to the AFP for further investigation regardless of whether elements of
sexual servitude offences are detected. This is a change in practice as
previously DIMIA staff investigated matters more thoroughly to establish and
validate facts before referring to the AFP.
In return, the agreement also requires the AFP:
to advise DIMIA whether the matter is accepted for
investigation. Where a matter is not accepted for investigation, the AFP is
required to advise DIMIA why the matter was not accepted and, where
appropriate, to recommend alternative methods of handling the matter.
Effectiveness of the coordination and communication
It is evident from the amount of coordination work,
that the need for coordination is well understood by Australian law enforcement
agencies. As Detective Superintendent Migro
of the Western Australia Police Service told the Committee:
One of the big things we need to be effective as law enforcement
is for us all to be linked, working together.
However, in the course of the inquiry two problems have
become apparent. Firstly, at a national level, the objective of a 'whole of
government approach' may be undermined by the absence of any single final
authority responsible for the outcome. Secondly, at the operational level, it
seems likely that there are still gaps in the 'trip wires' that set off
where does 'the buck stop'?
During the questioning of agencies during public
hearings, it became apparent to the Committee that a problem with existing
organisational arrangements is the absence of any single officer who is
ultimately answerable for the Commonwealth government response to the
trafficking of women. Government
officials argued that, given that the package is a 'whole of government
response', involving a number of different agencies, there is not - and cannot be
- any single point of authority since 'there is no single Commonwealth
government or state agency that is capable of delivering that whole range of
Thus, the focus is on the coordinating mechanism
between agencies - the Interdepartmental Committee, that includes
representatives from twelve agencies. Each of the agencies is responsible for
their relevant part of the overall package, and while the Attorney General's
Department is the coordinating agency, it does not have any operational
authority over other agencies on the committee. As Ms
Flanagan of the Office of Status of Women
explained, the interdepartmental committee continues to meet and monitor the
program as it is implemented:
I would have thought - and it has happened with other
interdepartmental committees that I have worked on over the years - that if
there are issues that go across a number of portfolios the appropriate place to
address those is within the interdepartmental committee or in discussions
between officers so that we can try and come up with solutions.
The Committee accepts the need for these coordinating
efforts, but remains concerned with any system that ultimately depends on
'management by Committee'. The problems with such a system are legendary and
derive from the fact that, while each agency represented at the
interdepartmental committee has its particular responsibilities and focus,
there is no-one who is responsible for making sure that the overall system
Realistically, it is too early in the implementation of
the program to make any final judgements, but the Committee notes that this problem
has characterised much of the government's approach to trafficking in the past.
As Project Respect commented:
Traffickers are resourceful, flexible and opportunistic. They
operate across state and international borders. To challenge traffickers, it is
necessary to show some of the same qualities. However, at present, government
agencies often operate in isolation, and key responsibilities are divided
across local, state and federal government. ...
At present, there is no one body receiving trafficking-related
information or coordinating responses to traffickers nationwide.
Similarly, former police officer Christopher
Payne explained to a Parliamentary seminar that the basic problem has always been one of
Federal Police are a
scarce resource so are saved for organised crime. Scooping up illegal
immigrants is not organised crime so this function was given to immigration
officers encounter organised crime, they are supposed to report it to the AFP,
who will then determine if they will investigate it or not, depending on resource demands at the time.
gaps in the fence?
The second problem is more operational, and relates to
agency cooperation. As was evident in the preceding chapter, the first
challenge for law enforcement agencies is often becoming aware of the potential
existence of women being held in a given location. Since prostitution is legal
in most states and territories in Australia,
police no longer routinely enter or search brothels. They therefore rely on information
from agencies, groups or individuals that do routinely go inside brothels to
alert them to the possible presence of trafficked women. Most prominent of
these sources are DIMIA, state and local government agencies, and groups such
as Scarlet Alliance or Project Respect.
However, the evidence suggests that at least some of
the time, the necessary cooperation and information sharing does not happen. In
for example, the Yarra Council gave evidence of the need for effective backup
for Council officers:
There seems to be a major disjunction between us - we have all
the access but no real capacity to deal with the problem - and the people who
now have legislative and other mandates to police brothels but who cannot be in
every brothel, legal and illegal, in Australia twice a year to keep an eye on
the problem. Not that we want to take on those powers, not that we want to get
involved; we would just like to be able to phone a help line and have the whole
thing dealt with.
However, the City of Yarra
Council has no formal protocols for information
exchange with the Victoria Police, the
AFP, or DIMIA. Despite the City of Yarra
including areas containing a high number of brothels, and with Council workers
having routine contact with these businesses, DIMIA has reportedly shown no
interest in working collaboratively.
The key problem is one of jurisdiction. Each agency
focuses on its own particular task which may not have anything to do with
detecting trafficked women. Since an agencies powers are granted and limited by
legislation, this focus is to a large extent appropriate, however it can lead
to frustrating institutional myopia. For example in the City of Sydney, which
includes within its new boundaries perhaps the highest concentration of
brothels and sex workers in Australia, evidence given to the Committee suggests
that council officers see their role exclusively in terms of planning approvals
and have little interest in trafficking issues. In
contrast, organisations such as the Sex Worker Outreach Project in Sydney,
which have almost unparalleled access to sex workers, are hampered by the fact
that they rely on the cooperation of the brothel owners and cannot be seen to
take an enforcement or compliance role.
Similarly, DIMIA's jurisdiction and role is limited by
law to a person's migration status. As Mr McMahon
noted: 'once people have a legal status, we have no interest in them other than
as to whether or not they are meeting the conditions of their visa.'
In enforcement terms, this also means that DIMIA's
legal task is to remove unlawful non-citizens from the country in accordance
with the requirements of the Migration Act, not to develop a case for
prosecution under the criminal law. As
became evident in the past, this can have the perverse result that trafficked
women are efficiently deported from Australia
before they could be protected or their evidence used in prosecutions.
The Committee accepts that many of these problems are
inevitable and in a complex jurisdictional environment, sometimes insoluble.
Nevertheless, much can be done to minimise the impact of traffickers slipping
through the jurisdictional cracks.
The Committee commends the government for the creation
of the interdepartmental taskforce. Bringing together all key agencies is a
necessary first step in coordinating a 'whole of government approach', and the
evidence suggests that this has already resulted in significant progress.
However, the Committee is still concerned at the absence of a more formalised
final responsible authority at the Commonwealth level.
The Committee considers that a useful, but
administratively feasible, reform would be the formalisation of the
Interdepartmental Committee (IDC), with the appointment of a Chairperson, and a
committee charter or terms of reference. This committee would have formal
responsibility for addressing coordination issues on an ongoing basis and have
the capacity (and obligation) to issue recommendations to the relevant
authority (at any level of government) to address defects in the system. While
the IDC would not have any direct power, a formalised responsibility would have
the benefit of ensuring that problems were tackled and the relevant agency
alerted to their responsibility to respond.
Importantly, the IDC should be obliged to respond to
issues referred to it within a set timeframe - reflecting the response
timeframes operating in other parts of the system such as the AFP/DIMIA
Finally, to ensure that the IDC does not outlive its
usefulness and become a bureaucratic irrelevance, it should review its
functions after eighteen months in operation, and make a recommendation on its
The Committee recommends the formalisation of the existing
Interdepartmental Committee (IDC), by the appointment of a Chairperson and
charter, which should state the IDC's formal responsibility for addressing
coordination issues and its authority to issue recommendations to any relevant
authority to address defects in the system.
The IDC charter should require the IDC to issue a response
to matters referred to it within a stipulated timeframe.
The IDC charter should require the IDC to review its
functions after eighteen months in operation and make a recommendation on its
Protection and support of trafficking victims
A central change introduced by the Commonwealth action
plan is the victim support measures for the victims of trafficking. As noted
above, responsibility for these measures was given to the Office of the Status
of Women. In order to make the support measures available as soon as possible
after the announcement of the package, an interim support package was arranged
with Centrelink, which operated from 5
January 2004, while tender specifications for the main contract
were released on 6 December 2003,
with a closing date of 29 January 2004. In April 2004, a contract was awarded to Southern Edge Training.
The Victim Support package comprises two phases.
Phase 1 goes for a maximum of 30 days and is triggered
after the person has been assessed by the police as being a victim or a
suspected victim of trafficking offences and of interest to them for the
investigation or prosecution of a trafficking offence. They are then given a
bridging visa, which, once granted, entitles them to access the victim support.
This period is designed to give the women a 'breathing space' or 'reflective
delay' to recover mentally and physically, in which they can consider their
situation and options in a place of safety, and was an aspect of victim support
recommended by a number of submissions.
Officers of the OSW told the Committee that benefits
under the first phase are modelled on programs such as those for humanitarian
settlement, asylum seekers and refugees and aims to provide a flexible and
tailored package of assistance. It includes:
a one-off start-up allowance to buy toiletries
accommodation and a food and living allowance;
immediate availability of medical and
pharmaceutical treatment and counselling;
access to various forms of training, such as
English language training and other training that might be deemed to be
up to three appointments with a legal
Assistance provided under the first phase is intended
to be flexible and entirely driven by the case managers' assessment of their
needs. As Ms Flanagan of the OSW explained:
It relies on the individual case manager, who speaks to you as a
victim and asks, ‘What do you need? Do you have to learn how to go shopping?’
Centrelink has been taking people shopping, showing them how to catch a bus and
how to buy a bus ticket - things which we would consider to be basic living
skills but which these people have not had the opportunity to learn in Australia.
It may also involve the case manager arranging for and
accompanying the person to meet with a migration officer.
Moving to phase 2 depends on whether it has been
established that the victim may be able to assist in the prosecution of
offenders. At that stage a Criminal Justice Stay Visa is granted and a
different range of support measures come into effect. As such, the victim
support package is driven by the visa regime.
In phase 2 the victim is able to access special benefit
and rent assistance (currently around $12,600 per year including rent
assistance, and set at the same level as the unemployment benefit), and continue
to have access to medical, pharmaceutical, counselling and training assistance.
Women under the program also have work rights in Australia while under Phase 2.
The need for
protection and support
The basic reasoning behind the Victim Support package
is clear and twofold.
The first is underpinned by the recognition that
trafficked women are victims of crime - in many cases including rape, violence,
and incarceration. As described in chapter 2, women coming out of these
situations are also likely to suffer significant mental and physical health problems.
As such, these women have a fundamental right to receive care and a right that 'is
crucial to women's recovery from the violence and exploitation they have
of Project Respect reiterated this view to the Committee during hearings:
The first issue is the most fundamental: that is, the issue of
victim support ... We would argue very strongly that victim support should be
seen not simply as a way of encouraging women to give evidence but as something
of value in itself.
a former AFP officer, argued in his submission that the core of the
government's response must be
In trafficking, adopting a restorative justice approach is what
occurs often now in rape and child abuse responses where the emphasis is on
helping the victim first. If a criminal prosecution can be launched then that
is all the better but it is secondary to helping the victim.
The second issue is that the cooperation of the victim
is crucial to the success of investigations and successful prosecutions:
Victim led prosecutions will continue to be the case for the
foreseeable future while law enforcement agencies in countries such as Australia
begin to acquire the capabilities and resources for proactive, intelligence-led
As Mr Iselin
points out, the cooperation of the trafficked woman is closely linked to her
Paramount in a
victim’s mind is not what will happen to the trafficker, but what will happen
to them. All effort put into a case that deals with trafficked victims will
result in nought if the investigating staff cannot help to answer this obvious
question of the victim. If there is doubt in the mind of the victim that they
will be safe and secure after trial and in a better position than before, we
will absolutely not achieve viable criminal justice outcomes.
For law enforcement agencies a further consideration is
that, while sex workers may be willing to talk, their evidence cannot be used
in a trial unless the women are prepared to testify in court, since the defence
must have the opportunity to test the evidence in cross examination. This means
that women providing evidence must either remain in Australia
for the duration of the trial process - which can take years - or undertake to
return to Australia
for court appearances. The Committee heard evidence of one example in which a
trafficked woman was identified in around 1998, but the whole trial and appeal
process was not finished until as late as mid-2002.
According to Project Respect, UK
research finds that only a small minority of trafficking victims testify:
the rest ask to be deported, preferably within 48 hours,
‘fearful that their exploiters will think they have given evidence against
them, and carry out threats made to themselves and their families.’ Clearly
trauma from violence experienced also impacts on their choices.
However, proper protection of the women can significantly
improve these outcomes. Again quoting UK
research, Project Respect point out that in countries where there are
specialist non-government organisations who offer support, up to 50 per cent of
Scope of protection
Notwithstanding these imperatives, providing adequate
protection presents significant problems. Protection must begin with physical
security for the woman in Australia,
but must also extend to the provision of accommodation, food, access to medical
services, legal and immigration advice, and interpreters. Given that trafficked
women will frequently view law enforcement authorities with suspicion and fear, it is also
desirable that these support services be provided by non-police or better
still, non-government organisations.
These elements, although they can be expensive, are
relatively easy to provide.
Much more complex is the situation in which a woman
returns to her country of origin either before, during or after the trial of
those who trafficked her. Given the international nature of the trade, it is readily
foreseeable that criminals will be aware that a woman has provided assistance
to Australian law enforcement authorities and will seek retribution. As
Detective McKinney commented:
You have this network of people who recruit women from overseas.
They know where they live; they know their families; they know everything about
them - that they are bar girls or whatever.
However it is almost impossible for Australian
authorities to offer guarantees of safety for the women once they have left the
country. Equally, even where a woman remains in Australia and is protected,
Australian authorities cannot provide any guarantee of safety to the woman's
family or friends in the home country, who may also be the targets of
This problem is to some extent insoluble, since
effective protection in these cases involves taking action in countries outside
of Australian legal jurisdiction. Detective McKinney
told the Committee of an example in which a witness had agreed to assist with
the prosecution, but then wanted to return home:
She was here for 14 or 15 months and we were in contact with her
regularly. Her brother had a car accident and she wanted to go home to see her
brother and her mum - because, again, she was a young girl. So she left the
country. ... The trial date was not set for another 10 or 11 months. We stayed in
contact with her up until then. You go through all your preliminary hearings
and all your filing hearings and so forth until you actually get to a trial
date. As soon as the trial date was set, we rang to tell her that we would have
to arrange tickets for her to be back here on such-and-such a date. She was
gone. She was nowhere to be found.
Her sister got a letter from her that said, ‘I’m in America.
I’m being held in America.
I’ll be home soon.’ We do not know whether she is being held against her will
or held in detention.
The adequacy of the
victim support package
The Committee commends the government for its
recognition of the need for thorough victim support and the provision of the
victim support package.
However, a matter of concern to the Committee is the
adequacy of the payments made to women in the victim support program. It is the
Committee's view that there are obvious problems setting the support payments at
the 'Special Benefit' level of around $12,600 per year, out of which women in
the scheme must also pay for their accommodation. At the
heart of this issue is equating trafficked women who are assisting police
inquiries - potentially at great personal risk - with categories such as asylum
seekers and refugees. This matter was put to government officials by the Hon
You are saying to them that they can have a very reduced
standard of living, the threat of retribution, circumstances where they may be
the subject of threats and intimidation, the prospect that at some stage the
prosecution may not proceed and their abuser will still be out there ready to
take revenge, ultimately they may have to go home into circumstances where they
will be in danger and so on. What are we being told? The framework that is so
attractive to these folk is a maximum of $12,500 ... Frankly, you are asking an awful lot of
Furthermore, it is readily foreseeable that someone who
has been trafficked into the sex industry and is facing an indefinite future in
relatively few skills and meagre means is likely to continue as a sex worker
while under the protection of the scheme:
They have been placed into a situation - whether or not they
were in it beforehand - where they have learnt that their bodies are marketable
commodities. When they do not get sufficient resources to support themselves
through other means, they fall back on something that they have, sadly, learnt
If the proposed level of financial benefits is
considered inadequate, what should the program provide instead? It is relevant
to note that people coming within the National Witness Protection Program or
similar State or Territory programs may be
given financial assistance of varying amounts. The increased benefits paid to
trafficked women in these circumstances would not add substantially to the
overall costs of the program given the small number of women involved. At the
same time, these additional costs may be a modest price to pay relative to the significant
public policy benefits that the program aims to deliver - the conviction of
organised crime people traffickers.
The Committee notes the view of the Office of the
Status of Women that the program, in the short time it has been in operation,
has enjoyed a 100% success rate, 'in that all of the victims who have been
identified are still with the program'. This
implies that participants themselves consider the program to be attractive.
Nevertheless, it is also the case that the bulk of
trafficked women who come to the attention of Australian authorities - many of
whom are deported - do not wish to stay in the country or assist police with
their investigations. Provision of a more adequate level of financial support
may go far in assisting some of these women to agree to stay in Australia
The Committee recommends the urgent reassessment of
benefits payable to women under the victim support scheme. Given that a precondition
of participation in the scheme is the women's preparedness to assist Australian
law enforcement agencies to prosecute traffickers, it would be appropriate for
women under the scheme to receive benefits benchmarked against those afforded
to witnesses under the Witness Protection Scheme.
Police and DIMIA handling of trafficked women
A matter that is virtually a prerequisite for the
effectiveness of both the government program in general, and the victim support
measures in particular, is the sensitivity and adequacy of police and DIMIA
handling of trafficked women. It is obvious that women who have fallen victim
to this crime will often be traumatised, disorientated and vulnerable.
The Committee heard evidence that criticised the AFP
handling of individual cases, which related in particular to intimidating and
insensitive police interviewing techniques.
In response, the AFP stressed that many of the issues
that are involved with dealing with trafficked women, including the need for
interpreters and social workers, are no different to police dealings with many
victims of crime, especially the victims of sexual assaults. As such, the
police - both AFP, State and Territory police services - have well established
training and protocols for dealing with these situations. As Mr
Keelty told another Committee:
Part of the core training of investigators in the organisation
is how to deal with these witnesses and also how to access assistance for
witnesses in terms of some of the welfare agency services that they can access.
That does occur, and it occurs in a whole range of offences, not just this one.
It is also AFP policy that female sex workers would always
be interviewed either by a female police officer or at least with a female
Nevertheless, it is also clear that there is an
important role for non-government organisations in providing support to
trafficked sex workers. One witness, with wide experience of the industry and
the treatment of these women by authorities, argued that each of these women
should have access to an entirely independent support person who is neither
police nor government. Support
organisations such as Project Respect and the Scarlet Alliance are likely to be
particularly effective in these support roles, by reason of their deep
understanding of the industry. According to the Project Respect:
The principle of providing independent support and advice to
victims of crime is clearly recognised across Australia.
In Victoria (as in other states), in relation to sexual assault, this is
expressed through a protocol between Victoria Police and Centres against Sexual
Assault (CASAs) that requires the police to contact CASAs if women make
allegations of recent sexual assault.
The Committee acknowledges the important role of
non-government organisations play in providing overall support for victims, and
notes that this role will be provided by the independent case worker provided
under the victim support scheme.
Linking victim support to prosecution
A criticism of the adequacy of the victim support
arrangements is that access to it depends on both a woman's cooperation with
law enforcement agencies, together with these agencies' judgement that the
woman will be of assistance to their investigation. As a government official
explained, the proposed system is tied into the visa system: those who stay, do
so under a Criminal Justice Stay Visa which is only granted on the basis of the
person's role in a prosecution. If a victim of trafficking is found, but for
whatever reason is not considered useful to the prosecution, they will be deported.
Under some circumstances, this arrangement is likely to
be in conflict with the principle (discussed above) that as victims of crime,
these women deserve protection and support irrespective of their role in the
prosecution. As Ms Maltzahn
from Project Respect told the Committee:
If we have a position that says we should support victims
because we need them for prosecutions, in some ways we are replicating the
experience they have already had - which is about being used for somebody
At a practical level, it is also possible that the
focus on a woman's usefulness to the prosecution may lead to iniquitous
results. For example, a women may agree to provide evidence in an
investigation, but for various reasons, a prosecution does not eventuate. This
woman would be liable to return to her country despite having given assistance
and as a result, is vulnerable to retaliation by traffickers.
Further, since the criminal justice visas are only
temporary, the women are liable to be returned to their home country once court
proceedings are complete.
It is also clear that the offshore protection and
support arrangements, to be provided by AusAID, are not capable of guaranteeing
any meaningful levels of safety to returned women or their families.
Finally, Mr Brian
Iselin argues that:
there is good reason not, in our common law system with
adversarial criminal justice processes, to link residency with testimony. There
is a very obvious point to be scored for defence lawyers if in fact residency
is granted conditional to testifying, for the intent behind the testimony comes
into question and is easily turned to discredit the victim. It is in this
regard also important not to link the two.
However, it must also be recognised that the
alternative - automatic assistance and visas for all women identified as having
been trafficked - may be counterproductive, with the perverse effect of
creating an incentive for women to come to Australia
and claim to have been trafficked as a 'backdoor' way to secure entry. This may
also inadvertently increase demand for the services of people traffickers.
As concluded in chapter 2, it is also likely that many
of the trafficked women who are detected by DIMIA or police, have voluntarily come
to Australia with the intention of working in the sex industry, and cannot be
considered victims of sexual servitude. It is also recognised that where there
are concerns relating to the return of women who have been on a criminal
justice visa, the women may be granted a protection visa allowing them to
remain in Australia.
The Committee concludes that it is appropriate for
assistance under victim support scheme to be tied to their cooperation with,
and value to, the prosecution.
Awareness raising program
As noted above, the Commonwealth Action Plan includes a
community awareness raising program worth $630,000, to be delivered by the
Attorney General's Department. According to the Department, the project will
have two major streams:
First, it will target the legal sex industry, the community
health and welfare sectors, and non-government organisations with a specific
focus on these issues. Second, it will provide accurate information on this
issue to encourage informed community debate and raise awareness of the issue.
In both streams, the goal will be to raise awareness and alertness to the issue
of trafficking in persons for sexual servitude, helping the identification of
potential victims or potential traffickers, and highlighting channels for reporting
information to the relevant authorities for further investigation. The project will also raise awareness about
the range of victim support measures, to encourage victims themselves to come
forward. The project will be carefully designed in close consultation with the
sex industry, outreach and advocacy organisations, service providers and
professionals in the community health and welfare sector, and the media.
Further details of the package were provided by Senator
Ellison, Minister for Justice and Customs:
The strategy comprises four stages over four years at a total
cost of $0.4 million from the Government's overall $20 million package of
anti-trafficking initiatives announced on 13 October 2003. The tender process for stage one,
exploratory and developmental research, is now underway. In accordance with
Australian Government requirements for communication activities, five
consultants have been selected and asked to submit a proposal. ... The successful
tenderer will be assisted by a specialist project advisory group and will be
required to directly consult and liaise closely with key non-government
Project Respect warned that this awareness raising must
be tightly focused to be effective. According to Project Respect, the most
important priority for awareness raising is for women in the sex industry.
Although accessing women in some situations can be very difficult, once the
message is put out into the sex worker community:
people talk. It may only be one in a hundred or one in a
thousand, but those women may be able to get information. So, if you can get
information out there that has a hotline number, they may be able to access it. 
The second priority is men who go to prostitutes, as it
is often the customers who help women escape. The
awareness campaign may also be able to play a valuable role in getting men who
use sex workers to actively ensure that they are not buying women who are
trapped in these situations. An
illustrative example of the current environment was given by Project Respect of
an interviewer who asked one of the sex workers:
about how men approached her, and she said that out of the 500
customers she had, because it was a 500-job contract, four men had asked her if
she was okay. It is interesting that obviously 496 people approached her as if
her welfare was entirely irrelevant to what they were buying and as if their
right to whatever service they wanted overrode how she was as a person, whether
that was in terms of the violence of trafficking or other things. So addressing
the demand is, I suppose, saying that men have a responsibility to ensure that
they are not buying women in these situations ... .’
the effectiveness of the Commonwealth government response
It is evident that the Commonwealth government has
implemented a substantial and wide ranging response to the problem of
trafficking. Although it is too early in the program to make any realistic
judgements as to the effectiveness of the program, it seems likely that it will
go a considerable way to addressing earlier limitations in Australia's
response to the problem of trafficking of women for sexual servitude.
While there have
been no prosecutions or convictions since the enactment of the Commonwealth sexual
slavery laws in 1999, as
at February 2003, the AFP had commenced 62 investigations, with fifteen current
investigations resulting in ten arrests and 35 charges. As
well, at the time of writing, five women were receiving benefits under the
victim support scheme.
The Committee commends the government for its
initiatives and its progress to date.