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Slavery in 21st Century Australia - A Human Rights Challenge (2008)

Discrimination Sex Discrimination

Slavery in 21st Century Australia - A Human Rights Challenge

Speech
by the Sex Discrimination Commissioner and Commissioner responsible for Age
Discrimination Elizabeth Broderick

Australian
Human Rights Commission

Modern Day Slavery in Australia:
The Queen v Tang

Australian Human Rights Commission

16 October 2008


Introduction

Over the last 12 months, I have been fortunate
to meet Aboriginal and Torres Strait Islander Australians from many corners of
this country – Arnhem Land, Darwin, Canberra, Fitzroy Crossing, Redfern,
Mackay and many more. Many talented and passionate individuals are driving
immense social change for their communities. They are a real inspiration to
me.

So I am proud to be speaking here today on the traditional land of the
Gadigal people or the Eora Nation. I pay my respects to their elders past and
present.

It is a daunting task to speak after one of Australia’s most eloquent
and eminent barristers.

I intend to rise to the challenge by leaving the legal analysis of the High
Court’s decision in Wei Tang entirely to Mr Walker.

Instead, I want to focus today on one simple question: how well does
Australia protect victims of slavery, trafficking and sexual servitude?

Since 2003, Australia’s response to trafficking has improved. Gone are
the days when trafficking victims were detained in immigration detention and
deported.[1]

Now the Criminal Code contains offences of slavery, sexual servitude,
trafficking, and debt bondage. Visas and victim support are available for
trafficking victims who assist police.

But, as I will explain, the problem is that while Australia has a framework
to prosecute traffickers, we don’t have a framework to protect
victims’ rights. The emphasis is largely on law enforcement rather than
protecting the human rights of the victim.

Although statistics on trafficking vary widely, a conservative estimate by
the US State Department is that 800 000 people are trafficked across borders
each year.[2] Eighty per cent are
female; Fifty per cent are
children.[3] This figure does not
include the millions of victims that are trafficked within national borders for
forced labour.[4]

However, in contrast to the magnitude of the problem, the US State Department
reports that in 2006 there were only 3160 successful prosecutions world
wide.[5] In 2007, the figure was
3,427.[6]

Prosecuting trafficking is difficult. In Australia, the Australian Federal
Police have conducted over 150 investigations into people trafficking. However,
the convictions for slavery and sexual servitude can be counted on two hands.

Thankfully, international law recognises that a person’s status as a
victim of crime is not dependent on a successful
prosecution.[7] Instead, if you
believe someone has been trafficked then you should treat that person as a
victim unless and until there is good reason to decide
otherwise.[8]

Put simply - trafficking victims deserve protection and support, regardless
of whether their traffickers are charged or convicted.

Trafficking to Australia

The first challenge in effectively protecting trafficking victims is
identifying who they are. In Australia we really don’t have any
comprehensive date on the scale of the issue.

So far, the vast majority of reported cases in Australia have involved women
who have been trafficked into the sex industry. Since 2004, 107 people have
been placed on the Government funded victim support program. Of these, 65 per
cent were from Thailand and 18 per cent from South Korean. The only male who
has received victim support was suspected of being trafficked into the
hospitality industry.

Experience shows that the question of whether a person has been trafficked is
not always clear cut. The features of trafficking that distinguish it from
people smuggling often only become visible after a person has been subjected to
exploitation. This means that when trafficking victims are identified they may
already be in a condition of slavery, sexual servitude, forced labour or debt
bondage.[9]

A recent report found that:

... few of the cases discovered in Australia fit the traditional stereotype
of “slavery”’. The suspected victims of trafficking who have
come to the attention of the Australian Federal Police have not been kidnapped
from their home villages, held at gunpoint or chained to beds’. [10]

Instead, the fact situations we are seeing are much are more
complex.[11]

In the sex industry, traffickers may facilitate women’s entry into
Australia. The women may consent to come to work in the sex industry but when
they arrive they find their movements restricted and – like the victims in
case of Wei Tang – they are told they have to work off ‘debts’
of up to $45 000 by servicing up to 900 customers. As the trial judge said in the Wei Tang case:

How could they run away when they had no money, they had no passport or
ticket, they entered on an illegally obtained visa, albeit legal on its face,
they had limited English language, they had no friends, they were told to avoid
Immigration, they had come to Australia consensually to earn income and were
aware of the need to work particularly hard in order to pay off a debt of
approximately $45,000 before they were able to earn income for
themselves?[12]

While Australia has so far focused on trafficking for sexual exploitation, a
key issue at the recent National Roundtable on People Trafficking was how
Australia can improve its response to the emerging issue of labour trafficking.
This is becoming increasingly important in a time of labour shortage.

In 2008, migrant workers may find themselves in debt bondage arrangements in
a range of different industries with little or no control over their conditions
of work. Their passports may be withheld and they may be subjected to physical
or psychological abuse. This is not just happening in the sex industry –
it’s happening in other industries too.

You may remember reports that Indians on tourist visas were sent to a tomato
farm in New South Wales to work in conditions of ‘virtual
slavery’.[13] There were also
reports in the 2008 US Trafficking in Persons Report that men and women from
India, the People’s Republic of China, South Korea, the Philippines, and
Ireland migrated to Australia temporarily for work only to find themselves in
situations of forced labour and debt
bondage.[14]

What protection and support do trafficking victims need?

Successfully prosecuting traffickers is important. However, it can only ever
be one component of an effective anti-trafficking strategy. The cycle of
trafficking cannot be broken without addressing the root causes of trafficking
or protecting the rights of all victims.

Although the Australian Government’s National Action Plan to
Eradicate Trafficking
recognises that prevention and victim support are
important elements of an anti-trafficking strategy, the reality is that so far
victim support and prevention have taken a back seat to prosecutions. [15]

This needs to change. There are four steps the Australian Government can take
to improve protection for trafficking victims:

  1. Fix the visa framework for trafficked people so that victim support is
    available on the basis of need, not conditional on assisting police.
  2. Make sure that trafficking victims receive clear information about their
    rights – including their right to compensation.
  3. Fund culturally appropriate outreach services.
  4. Raise public awareness about trafficking issues, including the emerging
    problem of labour trafficking.

Visa reform

A few
months ago, the government brought together NGOs working with victims, business
and union advocates, human rights groups, church groups, lawyers and many
different agencies of government to formulate a more human rights based approach
to trafficking in this country. It is called the National Roundtable on People
Trafficking.

At the start of the day there was some trepidation. Different groups had
different views about what should be done, but for the first time the government
was tapping into the rich and previously unexploited vein of knowledge that
exists within organisations who work with trafficked persons.

It was agreed that victim support for trafficked people should be provided on
the basis of need.

Currently, victim support is linked to the people trafficking visa
framework.[16] The problem is both
visas and victim support are condition on victims being ‘willing and
able’ to assist police.[17] If
a person is identified as a suspected victim of trafficking by the Australian
Federal Police, that person will be eligible for a Bridging Visa F for a maximum
of 30 days. After that, a person who can provide ongoing assistance to police
may be eligible for a criminal justice stay visa.

The Bridging Visa is that person’s access card to the first intensive
stage of the Victim Support Program administered by the Office for Women.

What we know from women’s experience reporting sexual assault is that
women need support before they are able to consider talking to police. Most have
been traumatised, are particularly vulnerable and fear authority figures.

One of the problems with the current framework is that sometimes trafficking
victims are being asked to talk to police before being granted a bridging visa
F. With Bridging Visa F comes a range of victim support services including
health care, counselling and legal
advice.[18]

We know that making victim support conditional on assisting police means that
defence lawyers can attack the credibility of trafficking victims on the basis
that their evidence was concocted in order to gain access to visas and victim
support.[19]

The best way to solve these problems is to reform the current visa framework
so victim support is not conditional on helping the police. Instead, victims
would be given three months reflection time to receive counselling, legal advice
and victim support. They will then be in a position to make a decision about
assisting police.

The witness protection visas that can be granted to trafficking victims who
help police and would face danger if returned home also need to be redesigned.

For trafficking victims giving evidence against their traffickers is a
traumatic and potentially dangerous process. While some trafficking victims
will want to return home; for others the prospect is terrifying.

For these people, a permanent witness protection visa offers invaluable
reassurance that they do not have to return to home to face the repercussions of
speaking out.

The problem is that at the moment this reassurance comes too late or not at
all. So far the temporary witness protections have only been granted after the
prosecution process has finished, and there have been no permanent witness
protection visas granted at all. Despite a lengthy appeals process, some of the
Thai women who were the victims in the Wei Tang case were not granted either the
temporary or permanent witnesses protection
visas.[20]

One solution is to replace the temporary witness protection visa –
which has the same criteria as the permanent visa – and make the permanent
witness protection visa available to trafficking victims at the time they are
giving evidence.

Give trafficking victims information about their rights

Visa reform is the first step towards treating trafficking victims as victims
of human rights violations, not just witnesses for the prosecution.

The next step is to give trafficking victims accurate information about their
legal rights and options.

Trafficking victims have often suffered psychological or physical abuse over
a long period of time. They may be victims of sexual assault or serious
workplace injuries.

Trafficking victims often need urgent medical care and counselling. They may
need interpreters, housing, food and clothing, health education, legal advice,
English language classes, and assistance finding employment and education.

Under international human rights law trafficking victims have a right to
effective remedy. This means trafficking victims need to be given information
about their rights to compensation.

Under the current victim support program, trafficking victims are only
entitled to three hours of legal advice. But there’s no guarantee that
this will cover the issue of compensation.

As far as I know, only one trafficking victim has received compensation and
this was awarded under a state scheme on the basis of her status as a victim of
sexual assault, not as a victim of
trafficking.[21]

There is no federal compensation fund for victims of crime. To date,
prosecutors have not sought reparations from those convicted of sexual servitude
and slavery offences.

This creates an anomalous situation - where slavery is taken so seriously by
legislators it is punishable by up to 25 years imprisonment yet its victims have
no effective avenues to seek compensation.

Fund culturally appropriate outreach services

Information about making compensation claims or accessing supporting services
needs to be given to victims in a language they can understand.

Trafficking victims are often non-citizens with no or limited English. They
may not know that trafficking, slavery, sexual servitude and debt bondage are
illegal. These are people who have often had their trust abused and may not
trust Australian authorities.

Giving trafficking victims information about their rights will often involve
using interpreters or multilingual resources. But good quality translation and
interpreters cost money which many NGOs just don’t have.

This is why a recent report by the Australian Institute of Criminology
recommended that the Government fund culturally appropriate outreach services to
help trafficked women seek support and advice beyond the parameters of the
criminal justice system.
[22]

Increase public awareness about trafficking issues

Outreach services are one way to help identify trafficking victims. The other
way is to increase public awareness of trafficking issues so that community
members can recognise and report cases.

We need to raise understanding about what the modern-day slave trade looks
like– both in the sex industry and in other industries. In particular,
employer and employee organisations need guidance on how to identify cases of
labour trafficking.

To this end, a Working Group of the National Roundtable on People Trafficking
is producing Guidelines for NGOs working with trafficked victims.

As the Chair of this Working Group, I can see enormous potential for NGOs to
play a key role in building community understanding of trafficking. But NGOs
who are working with – or may come in contact with – trafficking
victims need training and resources to identify and assist trafficking victims.

Put bluntly, guidelines are helpful; funding is essential.

Conclusion

In The Queen v Tang[23] the High Court told us slavery is still a reality in 21st century
Australia. It told us that the legal prohibition on slavery recognises the
subtle and cruel methods that characterise the contemporary slave trade. What
we need now is a framework for protecting the rights of trafficking victims both
inside and outside of the criminal justice system.

I feel optimistic about
reforming Australia’s approach in this area. The Roundtable is, I think,
symbolic of a new collaborative approach to human trafficking – an
approach where NGOs, business, government agencies, academics, human rights
advocates and unions - pool resources to create a different future for
trafficked people.

That is an Australia I’m proud to be part of. It is an enormous
privilege to be part of that change.


[1] See K. Carrington and J. Hearn,
‘Trafficking and the Sex industry: from Impunity to Protection’, Current Issues Brief, no. 28, Parliamentary Library, Canberra,
2003.
[2] United States Department
of State, Introduction, Trafficking in Persons Report, 2008, 7.
[3] United States Department of
State, Introduction, Trafficking in Persons Report, 2008,
7.
[4] International Labour
Organisation, A global alliance against forced labour: a global report under
the follow up to the ILO declaration on fundamental principles and rights at
work,
2005. ILO Forced Labour Report, 2005. The ILO estimated that there
are 12.3 million people in forced labor, bonded labor, forced child labor, and
sexual servitude at any given
time.
[5] US Department of State,
Introduction, Trafficking in Persons Report, 2008, p
37.
[6] Ibid.
[7]United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power.

[8] Gallagher A, Homes
P, Criminal Justice Response to Human Trafficking, (2008) International Criminal Justice Review, 329.
[9]Gallagher A, Homes P, Criminal Justice Response to Human Trafficking, (2008) International
Criminal Justice Review,
329.
[10] Fiona David,
‘Trafficking for Sexual Purposes’, Australian Institute of
Criminology, Research and Public Policy Series, no 95, 39; see also Fiona
David, ‘Prosecuting trafficking in persons: known issues, emerging
response’, Australian Institute for Criminology, trends and Issues in
Criminal Justice,
no.358, June
2008.
[11] Ibid.
[12]The Queen v Wei
Tang
[2006] VCC 637,
6-7.
[13] Eamon Duff,
‘Worst Immigration Racket Busted’, Sydney Morning Herald, 11
May 2008.
[14] US Department of
State, Introduction, Trafficking in Persons Report, 2008,
62.
[15] For discussion see
Elaine Pearson, ‘Australia’ in Collateral Damage: The Impact of
Anti-Trafficking Measures on Human Rights around the World’,
Global
Alliance Against Trafficking in Women, 2007; Segrave M. “Surely Something
is better than nothing? The Australian response to the trafficking of women into
sexual servitude in Australia”, Current Issues in Criminal Justice, vol 16, issue number 1,
2004.
[16] The People Trafficking
Visa Framework was established by the federal government on 1 January 2004. It
allows a person of interest to law enforcement in relation to a trafficking
matter who is assisting, or who has assisted with an investigation or
prosecution of people trafficking offenders to remain lawfully in Australia. It
consists of the Bridging F visa, the Criminal Justice Stay visa and the Witness
Protection (Trafficking) (Temporary and Permanent) visas.
[17] See further Office for
Women (OFW), ‘Support for victims of people trafficking’, fact
sheet,
http://www.ofw.facs.gov.au/international/combating_people_trafficking-fs.htm;
see also Fiona David, ‘Trafficking for Sexual Purposes’, Australian Institute of Criminology, Research and Public Policy
Series,
no 95, 63.
[18] See further Office for
Women (OFW), ‘Support for victims of people trafficking’, fact
sheet,
http://www.ofw.facs.gov.au/international/combating_people_trafficking-fs.htm.
[19] See further Fiona David, ‘Prosecuting trafficking in persons: known
issues, emerging response’, Australian Institute for Criminology, trends and Issues in Criminal Justice, no.358, June
2008.
[20] ABC Radio National Law
Report, ‘The Wei Tang Decision’, 2 September 2008.
[21] Natalie Craig, ‘Sex
slave victim wins abuse claim – EXCLUSIVE - ‘It still hurts to talk
about it ... I have been depressed’, The Age, 29 May
2007.
[22] Fiona David,
‘Trafficking for Sexual Purposes’, Australian Institute of
Criminology, Research and Public Policy Series, no 95,
65.
[23] [2008] HCA 39 (28
August 2008).

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