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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).