Modern slaves

In recent years the Australian government has devoted significant resources to combating human trafficking, both in Australia and in South-East Asia and has made changes to our legal framework to bring it into line with international law. However, research at the Global Alliance Against Traffic in Women (GAATW) reveals that significant numbers of trafficked persons in Australia are still slipping through the cracks, and that Australia lags behind as far as effective protection of human rights is concerned.

Trafficking is a complex and global problem. Under the international definition, it involves the deliberate movement of persons from one place to another into a situation of serious exploitation. Where the person is an adult, this movement is facilitated by force, deception or abuse of power.

This definition, which the Australian government has more or less followed in our criminal code, means that trafficking can occur into any sector or industry, that it can happen to men, women and children, and that exploitation may take a number of forms from slavery, to forced labour or debt bondage, to sexual exploitation.

In research for the report, Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights Around the World, released this month, GAATW found that most trafficked people were intending to migrate for what they believed would be better opportunities overseas, based on promises made to them by recruiters. But when they arrive here, they find either that the work they are asked to do is not what they expected, or that the conditions of work are much worse than they were led to believe.

They are effectively forced to work in a form of modern slavery. Abuse happens mainly in informal work sectors, where turnover is high and scrutiny low, for example construction, agriculture, manufacturing or hospitality, or the sex industry, to workers who are vulnerable by virtue of their legal status, language, education, age, gender or a range of other factors. Wherever it occurs, such abuse can be deeply psychologically damaging, destroying self-esteem and trust.

Australian authorities estimate that less than 100 people are trafficked into Australia each year, but their focus has been almost exclusively on the sex industry. Gender and racial stereotyping of possible victims has had negative consequences for sex workers, due to repeated raids of premises and the harassment of women of Asian appearance. Outreach workers say that it has pushed those who are in more vulnerable situations further underground and thus has negated some of the positive effects of decriminalising the sex industry, such as improving labour conditions and work safety.

Another consequence of this disproportionate focus means that other trafficked workers are not being identified. The government and law enforcement agencies have acknowledged only one or two isolated cases of severe exploitation in other industries as being trafficking cases, and only after pressure from human rights groups. Trade unions, meanwhile, have reported to GAATW and the media many cases of exploitation of migrant workers.

A number of these cases involved abuses of men and women in Australia under the 457 visa scheme. Although this visa, for highly skilled foreign workers, secures some protection by affording legal status and a right to minimum labour standards, the system of tying a worker to a particular employer leaves them with little bargaining power or recourse should labour standards not be met.

In informal sectors where there is little scrutiny of work conditions, the situation is ripe for exploitation to occur and cases have been reported of workers being deceived, exploited, held in debt bondage, threatened by employers and in some cases trafficked. On reporting their employers to immigration, invariably the worker was threatened with deportation instead of their claims being investigated.

And what of those people identified by authorities as having been trafficked into Australia? GAATW’s research has found that Australia’s prioritising of a criminal justice response to trafficking is failing to guarantee the protection of human rights, and in some cases may be harming people even further.

A serious concern is that assistance to those identified as having been trafficked, such as medical care, counselling, emergency food or accommodation - assistance that may be essential for the person to recover from their trauma and move onto a new life - is not automatically given in Australia. Rather, it is made conditional on the person co-operating with law enforcement to prosecute the trafficker.

If the victim is afraid of co-operating because of very real risks of retaliation from the traffickers, if she or he does not have sufficient information, if the trafficker has absconded or the prosecution does not go ahead with the case for any reason, then the trafficked person’s status changes from victim of crime to illegal migrant, with the victim simply placed in immigration detention and deported. Those who are detained even end up with a bill for the costs of their detention, intended to act as a deterrent to them (and others) from “illegally migrating” to Australia again.

This system is supported by a complex system of visas which are granted on a discretionary basis at the request of the Attorney General’s Department. Victims must generally stay on short term “criminal justice stay” visas which can be revoked at any time, thereby revoking any rights to services or assistance.

Although a temporary witness protection visa specifically for trafficking victims was introduced in 2004, at the time of conducting the research in late 2006, not one of these had been issued. It seems the visas are only being offered post-trial almost as a reward for the completion of a case. By not accessing this visa until after the trial, however, victims are left in a state of perpetual anxiety and trauma about whether they will be sent back at a moments notice - some have been helping authorities for two or three years.

Denial of support to a victim of trafficking if they cannot help the police is in clear violation of international human rights standards which require that all victims should be given the necessary medical, psychosocial and practical assistance needed to recover. Further, the right of victims to temporarily remain in a foreign country should be based on humanitarian or compassionate grounds and an individual assessment of the risk if they are sent back home. The current system thus further disempowers people who have already faced substantial insecurity and abuse at the hands of traffickers and who are in vital need of being put back in control of the lives rather than dangling at the end of a government official’s yoyo. Some have called this “witness bondage”.

It is also clear that the system is not necessarily leading to more prosecutions, as was hoped. At the time of research, there had been only four convictions made under the 1999 Slavery and Sex Servitude Act. Internationally, research has shown that a key ingredient of an effective criminal justice response is good victim protection, including giving all victims space and time to come to terms with what they have experienced and begin to trust authorities enough to decide to testify.

Whether those who do finally receive assistance are getting the right kind of assistance, was impossible for GAATW to adequately research. This is because the government has outsourced victim services to a private for-profit company, which is bound by confidentiality agreements not to talk about its work. The company also has extensive reporting obligations to government about particular people in its care.

The closed nature of the services make it difficult for the company’s social workers to learn and share experiences with those with expertise on trafficking both in Australia and overseas. It also leaves victims isolated and cut off from community services that could be more culturally appropriate and comprehensive. Protecting confidentiality and privacy of victims of trafficking is important, however we regard this is being used as an excuse so that the government and its contractor are actually entirely unaccountable and can avoid criticism.

Other countries in the region pay attention to Australia and may consider it to be a leader in fighting trafficking, especially as a major development partner. However, our research shows despite the necessary and welcome reforms to laws and visas that Australia has made, the application of these laws is not protecting the rights of those it seeks to protect. Many victims are not being identified, of those that are, only some have access to assistance, and of that number, the assistance they receive has been corporatised and closed to examination.

Finally, it is not only against international human rights but somewhat illogical that the visa system is so closely tied to the criminal justice system. Imagine if we asked all rape victims to stand up in court and accuse their rapists in order to receive counselling, health and medical services. And if they were too traumatised to do so, or their rapist had fled the country, or their evidence was not good enough we said “too bad, sorry we can’t help you”. This is what is happening to victims of trafficking in Australia right now.

The difference is, these victims of crime are migrants, who don’t have a stake in Australia’s political system. Therefore the government seems to think it is acceptable to ignore their rights with impunity.