Steele, Sarah --- "Trafficking In People: The Australian Government's Response" [2007] AltLawJl 6; (2007) 32(1) Alternative Law Journal 18

Trafficking in People: The Australian government’s response

• Australia’s human trafficking legislation and policy
• Implications of Australia’s narrow criminalisation approach
• Conclusion

Trafficking in People
The Australian government’s response

SARAH STEELE^[*]

Trafficking of human beings^[1] has a long history as an internationally profitable activity. This type of trafficking, involving the recruitment, physical movement and receiving of people through deception, coercion or force, has received increasing attention over the last decade. While the phenomenon is well-established, it is only since the end of the Cold War that governments have begun to understand the implications, and have placed the issue on policy agendas. Indeed, since the early 1990s, international organisations and governments around the world have gradually considered, devised, and implemented legislative and/or policy counter-measures to address the trafficking issue. Having attracted intense academic attention around the world, human trafficking legislation and policies became a battleground wherein competing agendas have sought recognition of, and provision for, issues including globalisation, migration, labour rights, victim’s rights and human rights more generally.

While initially trafficking in people was framed as a migration issue, with trafficked persons being regarded as illegal migrants, by the late 1990s the phenomenon was gradually reframed in many jurisdictions as a transnational criminal issue, with trafficked persons regarded as victims of crime. Indeed, although the Australian government’s policies maintained a migration approach to trafficking, in 1999 and annually from 2003–2006 the federal government instituted legislative and policy packages that re-defined people trafficking as an organised criminal activity. Consequently, the government has adopted punishment as the primary means of deterrence. But is Australia’s locating of human trafficking within the organised criminal framework appropriate?

In answering this question, this article will first detail the amendments successfully passed by the government since the late 1990s, as well as the various policy packages. Having outlined these developments, the article will then proceed to examine the short-fallings of the current criminalisation approach. While not the primary endeavour, several potential changes and avenues for improvement will be detailed consequential to this assessment.

Australia’s human trafficking legislation and policy

Trafficking in people is by no means a new phenomenon in Australia, although it is only recently a specific legal response to the crime has been developed. Until the late 1990s, trafficking in people was framed as a migration issue, with trafficked persons being regarded as, and deported as ‘undocumented arrivals’.^[2] While criminal provisions outlawing slavery existed under Imperial Acts, the deportation of persons under the Migration Act 1958 and the lack of an explicit policy regarding trafficked persons as different than other illegal migrants meant that there was impunity for traffickers.^[3] By the late 1990s, however, the phenomenon was gradually reframed at the federal level as a transnational criminal issue, with trafficked persons regarded as victims of crime.

While the government’s policies maintained a migration approach to trafficking, cumulating in the 1999 Border Protection Legislation Amendment Act, the view of people trafficking as an organised criminal activity was adopted as the primary approach to the phenomenon. In particular, the government enacted the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999, which created criminal provisions to aid prosecution of human trafficking. Specifically, the amendment added the offences of slavery, sexual servitude and deceptive recruiting to the Criminal Code Act 1995. The provisions, however, contain restrictive criteria, with a condition of bondage or coercion being required to establish a case under the Act.^[4]

As such, the legislation was criticised for creating a more onerous legal test than international agreements and generally accepted best practice, which accepted that offences should not only include trafficking by threat, use of force and/or coercion, but also by abduction, fraud, deception, abuse of power, abuse of a position of vulnerability, or wherever there was a giving or receiving of benefits, aimed at achieving the control over another person for the purpose of exploitation.^[5] Additionally, the Act was criticised for insufficiently addressing the issues of exploitation of vulnerable groups, failing to address the gendered nature of trafficking, failing to provide for victims, continuing the prizing of border control over meaningfully addressing the phenomenon, and as neglecting to properly address that the crime violates human rights.^[6] Overwhelmingly, these criticisms were raised for the purpose of advocating the inclusion of provisions in legislation that convey rights and protections for victims of trafficking, and to broaden the definitions in the Act to comply with international obligations and best practice.

In light of this growing attention and criticism of this legislation and existing policy, the government announced several legislative amendments and packages to more comprehensively address trafficking. In 2002, the government introduced the further offence of facilitating a person’s illegal entry into a foreign country for the aim of exploitation, which carried a maximum penalty of 20 years imprisonment.^[7] In late 2003, the government implemented the Action Plan to Eradicate Trafficking in Persons, which provided significant funding and resources to combat human trafficking both domestically and internationally.^[8] This package included provisions to encourage police and immigration officials to distinguish trafficked persons from illegal migrants, as well as provisions to assist victims, including counselling and temporary shelter. An Australian Federal Police ‘strike’ team was created, which would work both domestically and internationally, specifically with ‘strike’ teams established in Cambodia and Thailand in 2001 and 2002. Additionally, the government also passed provisions for the granting of temporary visas and access to social services for trafficked persons willing to cooperate with authorities in the investigation and prosecution of trafficking crimes.^[9]

This new regime of visas, overseen by the Department of Immigration and Multicultural and Indigenous Affairs, allows the Federal Police to assess victims and issue a Criminal Justice Stay Visa where deemed appropriate. One of three visa types can be issued. Firstly, a Bridging Visa Class ‘P’ can be issued for a 30 day period, so as to facilitate the Federal Police making preliminary investigations into the victim’s claims, establish the likelihood that an investigation will follow, and to establish that, if required, the victim is willing to provide testimony to a Court. Alternatively, an open-ended, revokable Criminal Justice (Victim of Trafficking) Stay Visa can be issued for a period of investigation and prosecution where the Federal Police find that the victim has provided valid information and is needed in Australia to assist an investigation and prosecution. Finally, where a victim has provided significant assistance to the investigation and/or prosecution, and is at risk of significant personal danger if they were to be returned to their country of origin, a Witness Protection (Trafficking) Visa can be issued to allow the victim to remain in Australia, initially for a period of two years renewable until the danger has passed or diminished. If the danger is considered ongoing, a Permanent Visa may be issued. Each of these visa classes permit the holder to work and access government welfare assistance.^[10]

In 2005, Australia signed and ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.^[11] To better comply with the obligations under the Protocol, the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 was passed,^[12] which created an offence of bringing a person to Australia via threats, force or deception, punishable by up to 12 years imprisonment, or 20 years if there is an intention to exploit or subject the victim to cruel, inhuman or degrading treatment.^[13] The Act also created a specific offence of trafficking children, which attracts a penalty of up to 20 years.^[14] The Act also broadened the offence of deceptive recruiting for sexual services to cover situations where a trafficked person knew that she was coming to Australia to provide sexual services, but had no knowledge that her employment would involve exploitation.^[15] Finally, the Act added a debt bondage offence, applying where an exploitative debt contract, or arrangement, existed that forced a person to pay off inflated debts they supposedly incurred.^[16]

In addition to this legislation, Australia adopted a more active role in promoting bilateral and multilateral cooperation with regard to human trafficking. AusAID became involved in a number of South-East Asian initiatives that sought to strengthen law enforcement and judicial responses, as well as to support the reintegration of victims to these countries on return from Australia.^[17] On 15 September 2006, the government announced that it would provide a further ‘$21 million over the next five years to help combat human trafficking in Asia … [to] help the criminal justice systems in our region to target people traffickers and secure justice for victims’.^[18] Managed by AusAID, the package is directed specifically at Thailand, Cambodia, Laos and Burma, with the intention of providing, according to Foreign Minister Alexander Downer, ‘training and advice to specialist anti-trafficking units’, as well as funding research and assistance to the ASEAN Secretariat.^[19] The package also provides for training, specialist advice and materials for judges and prosecutors.^[20]

Implications of Australia’s narrow criminalisation approach

With millions of dollars vested into creating programs, investigating trafficking, prosecuting crimes and rehabilitating victims, it must be asked whether these legislative and policy changes are indeed the substantial developments that the Howard government avers. Statistical data from authorities since the implementation of initial reforms suggests positive developments have been made. There has been a significant increase in the number of investigations since new policies came into place. In 2001–2002, only three referrals were made to the Australian Federal Police for investigation, with only eight suspected victims identified.^[21] This increased in 2002–2003 to 17 referrals and 29 victims, and increased again in 2003–2004 to 67 referrals and the identification of 75 victims, but decreased in 2004–2005 to 36 referrals and 41 suspected victims.^[22] From 2001–2006 only a handful of prosecutions have taken place as a consequence of these investigations, with only one successful prosecution to date under the new provisions.^[23] Nevertheless, these numbers fall far short of the estimated number of trafficked persons and trafficking operations predicted to be operating according to a 2004 Parliamentary Report, which concluded that the number of trafficked women ranged from 300 to 1000 annually.^[24] However, this data, as with the statistical material on investigation and arrest, has limited utility in establishing the true levels of trafficking and the success of the government’s initiatives, as comprehensive research has not been undertaken into the phenomenon in Australia.

The focus on punitive functions has meant that there has been little focus on collecting information about the magnitude of the problem. Particularly, the failure to fund data collection beyond investigation and prosecution statistics has meant that almost no information has been produced on the actual extent and nature of trafficking. Despite the extensive academic and government attention that trafficking has received in the past decade, relatively few studies have been undertaken that survey the extent and nature of trafficking to Australia and from regional ‘origin’ countries.^[25] This failure to fund focused research has important implications; one of the most important being that the absence of data makes it difficult for the government to direct policies and funding to target core issues. The absence of data on the number of trafficked persons and trafficking operations, the nature of these operations and the factors driving trafficking and re-trafficking domestically and in origin countries means that there is no knowledge about whether the current policies are effective or appropriately directed. While obtaining data is difficult due to the unwillingness of trafficked persons to report, studies overseas, specifically in the European Union, have yielded useful information.^[26] Additionally, the UN Protocol requires that state parties endeavour to conduct research and produce information to prevent and combat trafficking, thus making focused government funded research a necessary part of compliance with Australia’s international obligations.^[27] In this way, the funding of greater research into the phenomenon needs to become a key facet of the government’s wider strategy to prevent people trafficking.

The criminalisation approach also has created a view of trafficking that conceals other elements of the phenomenon. By placing sole focus on the perpetrator and constructing trafficking as an act of violence (largely against women and children), criminalisation has redirected focus away from the causes of trafficking and away from other, non-criminal justice responses to trafficking. Firstly, the focus on trafficking as violence (generally against vulnerable women and children), ultimately constructs these trafficked persons as needing of protection from further harm, as opposed to individuals who deserve positive rights. Not only do the policies construct trafficked persons as ‘victims’, but also as evidence, only affording them legal migrant status and access to social services while they are providing assistance to the criminal justice system.^[28] The trafficked person is only granted rights during the time they are of utility to the Australian government, but receives no rights in a more general ‘human’ rights sense. As Segrave suggests, ‘…simplistic victim/ offender dichotomies … further obscure the complexities of sex trafficking as a migration and economic issues under conditions of globalisation’.^[29] Indeed, the government’s criminalisation approach and protectionist policies have overshadowed claims for other human, social and economic rights.

Secondly, the trafficker has been constructed as the subject to whom responsibility is directed. By creating this focus, the means rather than the causes are structured as the focal point of government policy, concealing the root causes. In this way, a blind eye has been turned to the economic disparities, restrictive or limited legal migration options, social exclusion and abusive experiences that lead to people engaging with and to be incited into a trafficking situation. Consequently, preventing trafficking has become secondary to punitive measures, despite prevention being a key aspect of Australia’s obligations under the UN Protocol.^[30] Punishment and deterrence through criminalisation and strict border policies have limited abilities to prevent human trafficking. As Ghosh suggested, ‘[t]o be effective, a strategy to combat human trafficking needs to be comprehensive enough to address both push and pull factors in a coherent manner’.^[31] Government strategy needs to incorporate provisions and policies that address both the reasons why people traffic and why those being trafficked are in a vulnerable position in the first place.

This means not only that the government needs to address the domestic social, economic and political conditions that fuel trafficking to Australia, but meaningfully reduce and address these conditions in origin and transit countries. Specifically, it is necessary not only to address the domestic conditions that make exploitation, prostitution and slavery viable, but also to address the various conditions that drive trafficked persons to be deceived or take the initiating risk. While over the last decade the government has provided around $1.5 million to projects addressing the vulnerability of children,^[32] similar programs for women (the other major vulnerable group) have yet to be a focus of policy measures. The persistent focus on funding criminal justice programs and victim reintegration has meant that there remains a failure to strategically direct funding to address the factors that lead people to be trafficked. This failure also has important implications for the government’s current policy of reintegration. Without meaningfully addressing the issues that lead to people trafficking, many of these factors will still confront the returnee, which combined with the fact that they may face social stigmatisation, means that re-trafficking is a real prospect.^[33] By extending the focus of policy to include addressing the reasons behind people trafficking and people putting themselves in the trafficking situation, government policy would be more effective at preventing the phenomenon.

Conclusion

In a number of important ways, the criminalisation of human trafficking has enhanced the government’s response and meeting of international obligations. However, the narrow focus of legislative and policy reform has meant that many of these developments have been at the expense of preventing people trafficking in the region. The creation of human trafficking offences and the provision of services and protections for victim-witnesses are important developments, but they are undermined by a failure to implement a multifaceted approach that addresses the preconditions, act and outcomes of people trafficking. As Van Impe suggests, ‘[a]n effective strategy must combine and balance punitive measures with protection of human rights, stricter border control and the removal of the root causes of irregular movement. Measures must be agreed and coordinated between origin, transit and receiving countries.’^[34] The current focus on people trafficking as an organised, cross-border, criminal activity is too narrow to effectively prevent human trafficking. The government needs to adopt a package that addresses the phenomenon in broader manner, specifically one that comprehensively takes into account the social, economic and political realities that attach to and drive the phenomenon of human trafficking.

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^[*] SARAH STEELE is a PhD candidate at the University of Adelaide investigating international legal responses to human trafficking.

© 2007 Sarah Steele

email: [e-mail]

^[1] Trafficking in human beings (‘human trafficking’) and people smuggling are distinct, internationally-agreed criminal offences, as defined by the international community in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, opened for signature 12 December 2000, UN Doc A/RES/55/25 (entered into force 9 September 2003) and the Protocol against the Smuggling of Migrants by Land, Sea and Air, opened for signature 12 December 2000, UN Doc A/RES/55/25 (entered into force 28 January 2004). Human trafficking is ‘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’, whereas smuggling of people is defined as ‘the procurement, in order to obtain, directly or indirectly a financial or other material benefit, of the illegal entry of a person into a state party of which the person is not a national or a permanent resident’.

^[2] Kerry Carrington and Jane Hearn, ‘Trafficking and the Sex Industry: from Impunity to Protection’, Current Issues Brief, No 28, Parliamentary Library, Canberra, 2002–3, 10–11.

^[3] Ibid.

^[4] See Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 ss 270.3, 270.4.

^[5] These less-onerous tests were embodied in 2000 in a UN Protocol: The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, opened for signature 12 December 2000, UN Doc A/RES/55/25, art 3(a) (entered into force 9 September 2003).

^[6] See for example, Carrington and Hearn, above n 1; Vanessa E. Munro ‘A Tale of Two Servitudes: Defining and Implementing a Domestic Response to Trafficking of Women for Prostitution in the UK and Australia’ (2005) 14(1) Social & Legal Studies 91–114; World Vision Australia Criminal Code Amendment (Trafficking in Persons) Bill 2004, Submission to the Senate Committee Inquiry into the Criminal Code Amendment (Trafficking in Persons) Bill 2004, 17 February 2005.

^[7] Attorney-General’s Department, Australian Government’s Action Plan to Eradicate Trafficking in Persons, 2004.

^[8] Chris Ellison (Minister for Justice and Customs), Amanda Vanstone (Minister for Immigration and Multicultural Affairs), Alexander Downer (Minister for Foreign Affairs), Philip Ruddock (Attorney-General) and Kay Patterson ‘Australian Government Announces Major Package to Combat People Trafficking’ (Joint Media Release, 13 October 2003); Attorney-General’s Department, above n 7.

^[9] Department of Immigration and Multicultural Affairs ‘New Visas for Witnesses in Trafficking Cases’, Notice of Legislation Change, 1 January 2004.

^[10] See discussion of visa package in R v Kwok; R v Ong; R v Tan; R v Yoe [2005] NSWCCA 245; (2005) 64 NSWLR 335 [9].

^[11] Australia ratified the Protocol on 14 September 2005. See Department of Foreign Affairs and Trade (DFAT) Trafficking in Persons 2006.

^[12] Ibid.

^[13] Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 s 9.

^[14] Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 s 9.

^[15] Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 s 7.

^[16] Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 ss 9–10.

^[17] AusAID People Trafficking and Child Exploitation: Australia’s Aid Program Response, 6 October 2004.

^[18] Chris Ellison (Minister for Justice and Customs) and Alexander Downer (Minister for Foreign Affairs) ‘Australia Increases Commitment to Combating People Trafficking in Asia’ (Joint Media Release, 15 September 2006).

^[19] Ibid.

^[20] Ibid.

^[21] Department of Immigration and Multicultural Affairs ‘People Smuggling and Trafficking’ in Managing the Border: Immigration Compliance, 2004–2005 edition, 96.

^[22] Ibid.

^[23] See R v Tang [2006] VCC 637. Several other prosecutions are pending in New South Wales under the new provisions at the time of publication in early 2007.

^[24] Australian Parliament, Joint Committee on the Australian Crime Commission, Inquiry into the Trafficking of Women for Sexual Servitude, June 2004, viii.

^[25] There are a variety of reasons why this research has not been conducted; for discussion see ibid.

^[26] For examples of such studies see: Commission of the European Communities DG Justice & Home Affairs Research based on case studies of victims of trafficking in human beings in 3 EU Member States, ie Belgium, Italy and The Netherlands. Report for the Hippokrates Programme, Doc No JAI/2001/HIP/023.

^[27] Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, art 9.

^[28] See further discussion in Marie Segrave, ‘Surely Something is Better than Nothing? The Australian Response to the Trafficking of Women into Sexual Servitude in Australia’ (2004) 16(1) Current Issues in Criminal Justice 85, 87.

^[29] Ibid.

^[30] Indeed, under art 9 of the Protocol to Prevent, Suppress and Punish Trafficking Persons, Especially Women and Children state parties must endeavour to conduct research, mass media campaigns, socio-economic programs and bilateral/ multilateral activities that prevent and reduce trafficking, as well as rectifying the factors that make women and children vulnerable to trafficking.

^[31] Bimal Ghosh, Huddled Masses and Uncertain Shores: Insights into Irregular Migration (1998), 146–7.

^[32] Australian Democrats ‘People Trafficking’ Australian Democrats Questions, 7 June 2006, <http://www.democrats.org.au/questions/?id=102> at 13 September 2006.

^[33] Ibid.

^[34] Kristof Van Impe, ‘People for Sale: The Need for a Multidisciplinary Approach towards Human Trafficking’ (2000) 38(3) International Migration 113, 115.