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A human rights approach to trafficking in persons (2011)

Legal Legal
Friday 14 December, 2012

A human rights approach to trafficking in persons

Australian Human Rights Commission Submission to the UN Special Rapporteur on Trafficking in Persons Especially Women and Children, Australian Mission

14 November 2011


Table
of contents


1 Introduction

  1. The Australian Human Rights Commission (the Commission) makes this
    submission to the United Nations Special Rapporteur on Trafficking in
    Persons, especially women and children
    for her formal mission to Australia,
    17-29 November 2011.

2 Summary

  1. The Commission welcomes the opportunity to report to the UN Special
    Rapporteur on Trafficking in Persons, especially women and children on the human
    rights issues arising from trafficking in persons in Australia.

  2. This submission is framed within a human rights approach to trafficking in
    persons. This includes identifying the human rights protections available in
    Australia to trafficked persons and their dependents; as well as the gaps in
    human rights protections.

3 Recommendations

  1. The Australian Government should:

Recommendation
1:
adopt a human rights based approach to preventing, protecting and
redressing trafficking in persons.

Recommendation 2: In relation to trafficking in
persons:

  • improve coordination among government agencies involved in
    anti-trafficking responses
  • review the return and reintegration of trafficking victims procedures and
    develop repatriation guidelines for police and other relevant personnel.
  • Develop a federal victims’ compensation scheme
  • Provide improved access for trafficked people to information and legal
    services for assistance with making compensation claims.
  • Improve provision of settlement services, including access to housing, for
    trafficked women and their dependent children who obtain permanent residence in
    Australia.

Recommendation 3: In relation to
trafficking in children:

  • undertake comprehensive data collection and research on the prevalence of
    child trafficking and sexual exploitation
  • implement measures for providing specialist child specific services for
    child victims of trafficking,  non-citizen minors and unaccompanied minors,
    in accordance with the best interests of the child principle and the UNICEF
    ‘Guidelines on the Protection for Child Victims of Trafficking’
    (2006)
  • ensure that where trafficked people and their dependent children obtain
    permanent residence in Australia, these families receive access to adequate
    settlement services
  • amend the visa framework for victims of trafficking to ensure every person
    who is identified as a victim of child trafficking and who would face danger if
    returned to their country of origin is eligible for a permanent visa, regardless
    of whether they participate in law enforcement processes
  • develop clear guidelines for agencies on how to deal with child victims of
    trafficking on issues including guardianship, housing, access to education,
    confidentiality and privacy, access to independent lawyers and protecting the
    best interests of child.

4 A
human rights approach to trafficking

  1. Australia has ratified the United Nations Convention against
    Transnational Organized Crime
    (UNTOC). In addition in 2005 Australia
    ratified the United Nations Protocol to Prevent, Suppress and Punish
    Trafficking in Persons, Especially Women and Children supplementing the
    Convention on Transnational Crime
    (The Trafficking Protocol).

  2. The Trafficking Protocol defines trafficking in persons
    as:

    ...the recruitment, transportation, transfer, harbouring or
    receipt of persons, by means of the threat or use of force or other forms of
    coercion, of abduction, of fraud, of deception, of the abuse of power or of a
    position of vulnerability or of the giving or receiving of payments or benefits
    to achieve the consent of a person having control over another person, for the
    purpose of exploitation. Exploitation shall include, at a minimum, the
    exploitation or the prostitution of others or other forms of sexual
    exploitation, forced labour or services, slavery or practices similar to
    slavery, servitude or the removal of
    organs.[1]

  3. Under the Trafficking Protocol the consent of the victim is irrelevant where
    it is obtained by any of the coercive, deceptive or abusive means described in
    the definition of trafficking. Children can never consent to be exploited.

  4. The UNTOC and related Trafficking Protocol, outline an international
    framework for combating trafficking assisting victims of trafficking.

    UNTOC Article 25(2)

    Each State Party shall establish appropriate procedures to provide access to
    compensation and restitution for victims of offences covered by this
    Convention.

    Trafficking Protocol Article 6(6)

    Each State Party shall ensure that its domestic legal system contains
    measures that offer victims of trafficking in persons the possibility of
    obtaining compensation for damage
    suffered.[2]

  5. Australia has also ratified other conventions that prohibit different forms
    of exploitation that may occur in a trafficking situation including slavery,
    debt bondage, forced labour, child labour and forced marriage. These include the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of Elimination of All forms of Discrimination
    Against Women
    (CEDAW). Australia is also a signatory to the Convention
    Against Slavery
    (1926). As a state party to these conventions the Australian
    Government has an obligation to prevent trafficking and protect the rights of
    trafficked persons, particularly women and
    children.[3]

  6. The CEDAW Committee in its review of Australia in 2010 commended Australia
    for:

    • implementing a national plan to eradicate trafficking in persons mirroring
      the objectives of the Protocol to Prevent, Suppress and Punish Trafficking in
      Persons, Especially Women and Children, which supplements the Palermo Convention
      against Transnational Organized Crime.

    • Introducing the Support for Victims of People Trafficking Programme and
      the People Trafficking Visa Framework since 1 July
      2009.[4]
  1. However the Committee recommended Australia adopt a human rights framework
    in its revised action plan and consider complementary approaches to the current
    criminal justice approach. In particular the Committee recommended the
    Australian Government:

    • improve coordination among government agencies involved in
      anti-trafficking responses

    • review the return and reintegration of trafficking victims procedures and
      develop guidelines for repatriation for police and other relevant personnel.

    • review the accommodation available for women trafficked into Australia
      with a view to offering more options and reducing stress on the victims

    • undertake an impact assessment of the Bali Process in order to ensure the
      sustainability of its networking among the countries under this project

    • evaluate and monitor the Asia Regional Trafficking in Persons Project
      (ARTIP)

    • continue providing assistance to member States of the Association of
      Southeast Asian Nations (ASEAN) for improving investigation and judicial process
      in cases of trafficking in human
      beings.[5]
  1. The Australian Government was also requested to provide information in its
    next periodic report on civil proceedings related to compensation for victims
    (including the number of cases and the amount of compensation
    awarded).[6]

  2. The Human Rights Committee in its review of Australia in 2009 noted that,
    despite the positive measures adopted by the State party, trafficking in human
    beings, especially women, persists on the territory of Australia. The Committee
    recommended the Australian Government strengthen its measures to prevent and
    eradicate trafficking in human beings, including by adopting a comprehensive
    strategy, and providing equal assistance and protection to all victims
    identified regardless of their participation or otherwise in criminal
    proceedings against
    perpetrators.[7]

  3. Australia has also ratified the Convention on the Rights of the Child and
    its Optional protocol on the Sale of children, Child Prostitution and Child
    Pornography.[8]

  4. The United Nations High Commissioner for Human Rights’ Recommended
    Principles and Guidelines on Human Rights and Human Trafficking
    recommend
    that the promotion and protection of human rights should be at the centre of all
    efforts to prevent and combat trafficking and to protect, assist and provide
    redress to victims.[9]

  5. Recommendation 1: The Australian Human Rights Commission
    recommends that the Australian Government should adopt a human rights based
    approach to preventing, protecting and redressing trafficking in
    persons.

5 Current
protections

  1. In Australia, slavery, sexual servitude, deceptive recruiting for sexual
    services, trafficking and debt bondage are all criminal offences. Victims of
    these offences may be able to receive victim support under a program
    administered by the Australian Government Office for Women. There are also
    special visa arrangements for trafficking victims who assist police
    investigations and prosecutions.

  2. The Australian Government has taken a range of positive measures to prevent
    and punish trafficking of persons and ensure effective remedies to victims of
    trafficking including:

    • Introducing criminal offences for slavery, sexual servitude and deceptive
      recruitment for sexual services, sale of a child, debt bondage and people
      trafficking under the Criminal Code

    • Introducing changes to the people trafficking visa framework to provide
      permanent witness protection visas to trafficked people who would face danger if
      returned to their country of origin, who have contributed to a criminal
      investigation, as well as their immediate family members.

    • Operating a victim support program for victims
      returning to Australia to provide
      evidence[10]

    • Implementing a communication awareness strategy for victims of trafficking
      – including the issuing of ‘Guidelines for NGOs working with
      trafficked people’ and an accompanying ‘Know Your Rights’ fact
      sheet, which were developed in conjunction with the Commission and
      non-government organisations

    • Undertaking consultation with non-government organisations and the
      Commission through the annual National Roundtable on People Trafficking, and
      other roundtables including the 2011 roundtable on housing needs of victims of
      human trafficking

    • Funding of $1.4m to support the work of key NGOs in combating people
      trafficking.

    • Two public consultations on reforms to address the practices of forced and
      servile marriage and the criminal justice response to people trafficking,
      reparation and vulnerable
      witnesses[11]
  1. The focus of many of the measures has been on preventing trafficking and
    prosecuting trafficking-related crimes. In addition attention is also needed on
    addressing the human rights violations suffered by victims of trafficking by
    providing access to effective remedies as required under Australia’s
    international human rights obligations.

6 Guidelines for NGOs
working with trafficked people

  1. In 2008, the Australian Human Rights Commission, as part of the Working
    Group of the National Roundtable on People Trafficking to assist Non-Government
    Organisations working with trafficked
    people[12], developed the 2008
    Guidelines for Working with Trafficked
    People
    .[13]

  2. They represent a comprehensive resource, both for wellestablished NGOs and
    organisations supporting trafficked persons for the first time. The guidelines
    promote the best interests of victims of trafficking including the importance of
    informed consent, privacy protection and culturally appropriate services. They
    provide practical advice to NGOs dealing with victims of all forms of
    trafficking, including sexual servitude and labour exploitation.

  3. NGOs have a vital role in supporting trafficked people and improving public
    understanding of trafficking. NGOs might come into contact with trafficked
    people through the services they provide to migrant workers or because they
    offer specialised services to trafficking victims. Trafficked people have
    short-term and long-term needs including the need for interpreters, housing,
    food and clothing, medical care, health education, health care, legal and
    immigration services, safety planning, English language classes, assistance in
    finding employment and education and information about the Australian legal
    system, their human rights and legal entitlements including compensation and
    financial assistance. These needs must be met in a professional and culturally
    appropriate manner. These Guidelines aim to help NGOs provide services for
    trafficked people in a way that is safe, ethical and respects the human rights
    of trafficked people.

  4. In addition to the Guidelines, the Government prepared an accompanying
    two-page Know Your Rights fact sheet which gives trafficked people
    information about how they can get advice about their visa status, contact
    police and access support services. It has been translated into Thai,
    Vietnamese, Korean, Chinese and Tagalog. The Guidelines were also subsequently
    updated and re-released in 2010.

7 Gaps in protection

  1. The Commission remains concerned however that in relation to prevent and
    punish trafficking of persons and ensure effective remedies for victims of
    trafficking there are still some ongoing gaps in human rights protections as
    follows:

    • The reported case law on trafficking in Australia is still very limited
      and a considerable number of cases have been dismissed due to lack of evidence
      or have been appealed to higher courts. It is widely accepted that in Australia
      the known cases of human trafficking for sexual purposes have not been straight
      forward and do not necessarily conform to traditional
      stereotypes.[14] The Commission
      intervened in the High Court case of The Queen v Tang to assist the court in
      interpreting the meaning of ‘slavery’ in the Criminal Code to
      reflect the reality of trafficking in contemporary
      Australia.[15] In its intervention,
      the Commission submitted that the definition of ‘slavery’ in the
      Criminal Code should be read with reference to the relevant international
      covenants, namely the 1926 Slavery Convention and the Supplementary
      Convention.[16]

    • The Australian trafficking laws have been in place for over five years and
      there is a need to review these to ensure they comprehensively reflect the full
      suite of Australia’s international legal obligations in this area. For
      example, consideration should be given to including a separate offence of
      ‘forced labour’ in the Criminal Code.

    • The trafficking in persons offences in the Criminal Code should
      comprehensively cover all aspects of the definition of ‘trafficking’
      in the Trafficking Protocol.[17] This is because definitional differences in the Criminal Code may pose obstacles
      in prosecuting and judging cases that fall within the definition of
      ‘trafficking’ in the Trafficking Protocol, and may have the
      potential to limit international cooperation critical to gathering evidence to
      prosecute trafficking cases.[18]

    • There is a need for a federal victims’ compensation scheme

      There are significant practical obstacles that may prevent a trafficked
      person from making compensation claims, including obstacles to obtaining legal
      advice about claiming compensation, a lack of visa options to stay in Australia
      to pursue compensation claims, and the limited legal avenues to pursue
      compensation claims.

    • There is also a need to improve access for trafficked people to
      information and legal services for assistance with making compensation claims.
      The Commission considers that more work could also be done to set out the rights
      of trafficking victims during court proceedings. For example, it would be useful
      to develop a comprehensive code on possible witness protection measures suitable
      for use in trafficking trials. This code could then be referred to judges
      hearing trafficking trials so they can be guided in the exercise of their
      discretion to control court proceedings. This code should have an emphasis on
      the special needs of children. There could also be benefit in investing in
      mental health professionals providing counselling support services for victims
      making claims.

    • There is a need for better adequate settlement services, including access
      to housing, to be provided to trafficked women and their dependent children who
      obtain permanent residence in Australia.

Recommendation 2: The Australian Government should

  • improve coordination among government agencies involved in
    anti-trafficking responses
  • preview the return and reintegration of trafficking victims
    procedures and develop repatriation guidelines for police and other relevant
    personnel.
  • Develop a federal victims’ compensation scheme
  • Provide improved access for trafficked people to information and
    legal services for assistance with making compensation claims.
  • Improve provision of settlement services for trafficked women and
    their dependent children who obtain permanent residence in
    Australia

8 Children’s
rights

  1. The Criminal Code 1995 (Cth) contains Australia’s trafficking
    in persons offences.[19]

  2. Consistent with the definition of ‘trafficking’ in Article 3 of
    the Trafficking Protocol, the movement of persons under the age of 18 for the
    purpose of exploitation is considered ‘trafficking’ even if the
    traffickers do not use force, coercion, or other means to achieve the consent of
    the child to go with the traffickers.

  3. Child trafficking victims who come to the attention of the Australian
    Federal Police may be supported by the Victim Support Program until the child
    can be transferred to the care of the relevant state or territory authority. It
    is also likely that a guardian would be
    appointed.[20]

  4. A child trafficking victim who has been identified as an unaccompanied minor
    will generally have access to the same range of government services as all
    Australians – including education or language
    classes.[21]

  5. The Commission remains concerned that:

    • There continues to be a lack of data and research on the prevalence of
      child trafficking and sexual exploitation in Australia.

    • Where a child trafficking victim is not officially identified as an
      unaccompanied minor, he or she may not have access to the same level of
      government services.

    • There is a need for specific policy guidelines to be developed on
      protecting the rights of child victims of trafficking in Australia, especially
      during police investigations and prosecutions.

    • Ongoing support services should be available to child victims of
      trafficking even where they are unwilling or unable to assist police
      investigations or prosecutions.

    • The victim support program could benefit from further funding to be able
      to provide specific services and support that respond to (a) the specific needs
      of child victims of trafficking and (b) the needs of adult victims of
      trafficking with dependent children either in Australia or offshore.

    • The process of reunifying adult victims of trafficking with dependent
      children offshore often takes years. This is distressing for families and can
      leave the children of trafficking victims exposed to dangers in the country of
      origin. When trafficked people are reunited with their children (under the
      people trafficking visa framework) it is essential that appropriate settlement
      services are made available to help trafficked people and their families build a
      new life in the Australian community.

    • There are also concerns that state and territory child protection and
      other agencies need to be better resourced and skilled in meeting the needs of
      child trafficking victims who remain in Australia.

  6. Recommendation 3: The Australian Government should

    • undertake comprehensive data collection and research on the
      prevalence of child trafficking and sexual exploitation

    • implement measures for providing specialist child specific services
      for child victims of trafficking, non-citizen minors and unaccompanied minors,
      in accordance with the best interests of the child principle and the UNICEF
      ‘Guidelines on the Protection for Child Victims of Trafficking’
      (2006)

    • ensure that where trafficked people and their dependent children
      obtain permanent residence in Australia, these families receive access to
      adequate settlement services

    • amend the visa framework for victims of trafficking to ensure every
      person who is identified as a victim of child trafficking and who would face
      danger if returned to their country of origin is eligible for a permanent visa,
      regardless of whether they participate in law enforcement processes

    • develop clear guidelines for agencies on how to deal with child
      victims of trafficking on issues including guardianship, housing, access to
      education, confidentiality and privacy, access to independent lawyers and
      protecting the best interests of
      child.

[1]Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children,
General Assembly resolution 55/25 (2003) at Article
3.
[2]United Nations Convention
and Transnational Organized Crime
, General Assembly resolution 55/25 (2000); Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children,
General Assembly resolution 55/25
(2003).
[3] Article 6, Convention on the Elimination of Discrimination against Women, opened for
signature 18 December 1979, (entered into force 3 August 1981); Article 8, International Covenant on Civil and Political Rights, opened for
signature 16 December 1966 (entered into force 23 March
1976).
[4] CEDAW Committee Concluding Observations Australia, UN Doc CEDAW/C/AUL/CO/7, at 30 and 31
(2010).
[5] CEDAW Committee Concluding Observations Australia, UN Doc CEDAW/C/AUL/CO/7, at 30 and 31
(2010).
[6] CEDAW Committee Concluding Observations Australia, UN Doc CEDAW/C/AUL/CO/7, at 30 and 31
(2010).
[7] Human Rights Committee Concluding Observations Australia UN Doc CCPR/C/AUS/CO/5, at 22
(2009).
[8] Article 35, Convention on the
Rights of the Child
, opened for signature 20 November 1989 (entered into
force 2 September 1990).
[9] Office of the High Commissioner
for Human Rights, Recommended Principles and Guidelines
on Human
Rights and Human Trafficking
, presented to the Economic and Social Council
as an addendum to the report of the United Nations High Commissioner for Human
Rights (E/2002/68/Add. 1)
[10] As
of July 2009, all victims of trafficking identified by the Australian Federal
Police have access to the Australian Government’s Victim Support Program
for up to 90 days, regardless of whether they have contributed to the
investigation and prosecution of a criminal offence (see http://www.fahcsia.gov.au/sa/women/progserv/violence/Pages/AntiPeopleTraffickingStrategy.aspx (viewed 19 April 2010). The types of support services provided by the government
through this program (via non-government contractors) to identified trafficking
victims include:

  • accommodation
  • a living allowance
  • a food allowance
  • an amount of money for the purchase of essentials such as clothing and
    toiletries
  • access to health care, including counselling
  • access to interpreters
  • access to legal services
  • an individual case manager responsible for ensuring the appropriate delivery
    of support services to meet clients’ individual needs.( For further
    information, see http://www.fahcsia.gov.au/sa/women/progserv/violence/Pages/peopletrafficking.aspx#3 (viewed 19 April 2010).)

[11] Australian Human
Rights Commission, Protection of the rights of the child in the context of
migration
(2010). At http://www.humanrights.gov.au/legal/submissions/2010/201004_OHCHR_child_migration.pdf (viewed 15 July 2011)
[12] The
National Roundtable on People Trafficking Working Group comprises Commonwealth
Government agencies and nine NGOs, and was chaired by the
Australian Human Rights Commission. The members included:

  • Anti-Slavery Project, University of Technology, Sydney
  • Australian Catholic Religious Against Trafficking in Humans
  • Scarlet Alliance
  • Project Respect
  • Salvation Army
  • Victim Support Australasia
  • NSW Rape Crisis Centre
  • Josephite Counter Trafficking Project
  • Attorney-General’s Department
  • Australian Government Office for Women
  • Department of Immigration and Citizenship
  • Workplace Ombudsman
  • Australian Human Rights Commission.

[13]2008 Guidelines for
Working with Trafficked People
(2008). At http://www.hreoc.gov.au/sex_discrimination/publication/traffic_NGO/index.html (viewed 9 November 2011).
[14] See Department of Families, Housing, Community Services and Indigenous Affairs,
‘Trafficking of women for sexual purposes: Research and Public Policy
Series - No. 95’ (8 April 2009) at http://www.fahcsia.gov.au/sa/women/pubs/violence/traffic_women/Pages/default.aspx (viewed 28 October 2009). See also Anne Gallagher, Prosecuting and
Adjudicating Trafficking in Persons Cases in Australia: Obstacles and
Opportunities
(Speech delivered at the National Judicial College of
Australia Twilight Seminar on Human Trafficking, Sydney, 15 June 2009); Fiona
David, ‘Trafficking for Sexual Purposes’, Australian
Institute of Criminology, Research and Public Policy Series, no 95, 39;
Fiona David, ‘Prosecuting trafficking in persons: known issues, emerging
response’, Australian Institute for Criminology, Trends and Issues in
Criminal Justice,
no.358, June
2008.
[15]Queen v Tang (2008) 237 CLR 1.
[16] See
Australian Human Rights Commission, Submissions in support of the Application
for Leave to Intervene and Submissions on the Appeal - Commonwealth Director of
Public Prosecutions v Wei Tang
, 5 May 2008. At http://www.humanrights.gov.au/legal/submissions_court/intervention/tang.html (viewed 24 November 2009).
[17] E
Broderick and B Byrnes, Beyond Wei Tang: Do Australia’s human
trafficking laws fully reflect Australia’s international human rights
obligations?
(Speech delivered at Workshop on Legal and Criminal Justice
Responses to Trafficking in Persons in Australia: Obstacles, Opportunities and
Best Practice, Monash University, 9 November 2009),
74.
[18] E Broderick and B
Byrnes, Beyond Wei Tang: Do Australia’s human trafficking laws fully
reflect Australia’s international human rights obligations?
(Speech
delivered at Workshop on Legal and Criminal Justice Responses to Trafficking in
Persons in Australia: Obstacles, Opportunities and Best Practice, Monash
University, 9 November 2009).

[19] Section 271.4 Offence of
trafficking in children

(1) A person (the first person) commits an offence of trafficking in
children if:

a. the first person organises or facilitates the entry or proposed entry into
Australia, or the receipt in Australia, of another person; and

b. the other person is under the age of 18; and

c. in organising or facilitating that entry or proposed entry, or that
receipt, the first person:

i. intends that the other person will be used to provide sexual services or
will be otherwise exploited, either by the first person or another, after that
entry or receipt; or

ii. is reckless as to whether the other person will be used to provide sexual
services or will be otherwise exploited, either by the first person or another,
after that entry or receipt.

Penalty: Imprisonment for 25 years.

(2) A person (the first person) commits an offence of trafficking in children
if:

a. the first person organises or facilitates the exit or proposed exit from
Australia of another person; and

b. the other person is under the age of 18; and

c. in organising or facilitating that exit or proposed exit, the first
person:

i. intends that the other person will be used to provide sexual services or
will be otherwise exploited, either by the first person or another, after that
exit; or

ii. is reckless as to whether the other person will be used to provide sexual
services or will be otherwise exploited, either by the first person or another,
after that exit.

Penalty: Imprisonment for 25 years.

(3) In this section:

"sexual service" means the use or display of the body of the person
providing the service for the sexual gratification of
others.

[20] See Guidelines
for NGOs working with trafficked people
, Chapter 10. At http://www.hreoc.gov.au/sex_discrimination/publication/traffic_NGO/index.html,
(viewed 19 April 2010).
[21] For
further information about services available to unaccompanied minors, see
Department of Immigration and Citizenship, ‘Fact Sheet 69 - Caring for
Unaccompanied Minors’, http://www.immi.gov.au/media/fact-sheets/69unaccompanied.htm (viewed 19 April 2010).