Chapter 4 - Australia's
legal response
Introduction
4.1
This final chapter addresses the third term of
reference: 'the adequacy of the current legislative framework.'
4.2
In doing so, the chapter necessarily commences with a
survey of existing relevant law in Australia,
and then analyses the extent to which it is adequate to meeting operational
requirements, Australia's
international legal obligations, and the needs of the victims of the
trafficking trade.
Offences under current law
4.3
The law which applies to sexual servitude and
trafficking in women has a strong Commonwealth focus, but there are some state
offences which apply.
Commonwealth offences
4.4
The Commonwealth legislation includes provisions
principally under the Criminal Code Act
1995 ('the Code').
4.5
The Committee notes that the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999
added the offences set out in Division 270 of the Code. These offences include
sexual servitude, slavery, sexual slavery and deceptive recruiting. Sexual
servitude is defined in the Code as 'the condition of a person who provides
sexual services and who, because of the use of force or threats is not free to
cease providing sexual services; or is not free to leave the place or area
where the person provides sexual services'.
4.6
The offence of causing another person to enter into or
remain in sexual servitude (s.270.6) attracts maximum custodial penalties
varying from 15 years (offences involving adults) to 19 years (for offences
involving people under the age of 18).
4.7
Slavery is also defined in the Code at section 270(1)
as 'the condition of a person over whom any or all of the powers attaching to
the right of ownership are exercised, including where such a condition results
from a debt or contract made by the person.' There is a maximum custodial
penalty of 25 years imprisonment for this offence.
4.8
Section 270(7) states that the deceptive recruiting
offence is committed where a person deceives another about the fact that the
work they will be doing includes sexual services. The recruiter is a person
who:
with the intention of inducing another person to enter into an
engagement to provide sexual services, deceives that other person about the
fact that the engagement will involve the provision of sexual services ...
4.9
The penalty is seven years imprisonment, and nine years
where the victim is under 18 years.
4.10
The submission from the Attorney General's Department
observes:
Both the deceptive recruiting and sexual servitude offences
apply to Australian citizens and residents who commit the offences overseas,
persons who commit the conduct overseas where the sexual services are to be
provided in Australia, and persons who commit the conduct in Australia where
the sexual services are to be provided overseas.[167]
4.11
The Committee notes that this is consistent with the
relevant offence provisions for child sex tourism under part IIIA of the Crimes Act 1914.
4.12
The Code also contains the offences of people
smuggling,[168]
aggravated people smuggling (for circumstances in which the exploiter's conduct
causes the victim of people smuggling to enter into slavery or sexual
servitude),[169]
and enforced prostitution.[170] In
addition, the making, providing or possessing of false travel or identity
documents is prohibited under Section 73(8) of the Code, with similar
provisions in the Migration Act 1958,
concerning the presenting of false documents, or misleading statements.[171]
4.13
The submission from the Attorney General's Department
points out that the people smuggling offences can capture many instances of
trafficking, although there is a distinction between people smuggling and
people trafficking:
It is important to distinguish between people smuggling ... and
people trafficking. The Protocol Against the Smuggling of Migrants by Land, Sea
and Air, which also supplements the United Nations Conventions against
Transnational Organised Crime, defines 'smuggling in migrants' 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.'[172]
Recent developments
4.14
Apart from the Commonwealth Action Plan as noted in
Chapter 1 there are other proposals before the Parliament which would support
the work of other agencies in this area.
Australian Crime Commission
Amendment Bill
4.15
During the process of preparing corresponding State
legislation, the Australian Crime
Commission Act 2002 was found to have a number of limitations which
inhibited the functioning of the Commonwealth/State co-operative scheme and the
conferral of functions, duties and powers on the ACC under State legislation.
4.16
To address these issues, the ACC Amendment Bill was
introduced into Parliament in late 2003. The Bill
enables the ACC to investigate and conduct intelligence operations in relation
to serious and organised crimes that are offences under State legislation.[173] The
implications for the offences in Division 270 and of the Criminal Code are that
when similar State offences such as those relating to sexual servitude under
Division 10A of the Crimes Act 1900 (NSW)
are involved, the ACC will be able to investigate the full range of activity in
co-operation with the state police, without the need for more complex
arrangements.
Telecommunications Interception
Amendment Bill 2004
4.17
The Telecommunications Interception Bill 2004 contains
provisions which clarify the application of the Telecommunications (Interception) Act 1979 to:
both users of the Australian telecommunications system whose
communications are intended to be protected by the Act, and to those law
enforcement and investigative bodies who may require access to communications
in the course of the performance of their functions.[174]
4.18
There are specific amendments which address the issue
of stored communication and delayed message services such as SMS messaging. The
provisions specify when a communication is passing over a telephone system -
and therefore when an interception warrant is required.
4.19
For law enforcement agencies, the amendments clarify
the agencies' capacity to gain access to data transmitted via telephones, and
thereby assist investigations into organised crime networks including those
involved in trafficking for sexual servitude.
State provisions
4.20
Queensland,
Victoria and Tasmania
have no specific sexual servitude provisions but there are generalised criminal
offences which can be applied to trafficking. For example, in Victoria,
Part 2 of the Prostitution Control Act
1994 prohibits forcing a person into, or remaining in prostitution against
their will.
4.21
The remaining states (with the exception of Western
Australia, where the Criminal Code Amendment Act 2004, covering sexual servitude
offences, commences on 22 May 2004)
have legislated against sexual servitude offences within their respective
jurisdictions. The Attorney General's Department submission notes that the
penalties are compatible with those imposed by the Commonwealth,[175] although it
should be noted that these offences cover 'purely domestic activity'.
International law
4.22
The UN Protocol to Prevent, Suppress and Punish Trafficking
in Persons especially Women and Children is the primary international source of
international law relating to the issue.[176] The
principal requirements of the Protocol are that:
-
states criminalise trafficking and provide
assistance to victims;
-
victims be allowed to stay in the state
temporarily or permanently;
-
repatriation of victims should preferably be
voluntary; and
-
states undertake to establish public education
programs for prevention and for victim protection.[177]
4.23
Although Australia
has signed the Protocol, it has not yet ratified it, and a number of
submissions called for Australia's
ratification of the Protocol as an essential step in dealing with trafficking
in women for sexual servitude.[178]
4.24
Human rights instruments such as the International Covenant on Civil and
Political Rights and the Convention
on the Elimination of all Forms of Discrimination Against Women may also be
relevant to informing Australia's
obligations. The Australian section of the ICJ points out that since children
may also be victims of sexual trafficking, the provisions of the Convention on the Rights of the Child
will also apply in certain circumstances.[179]
Adequacy of Commonwealth law
4.25
In the context of the legal framework set out above,
several issues emerge in relation to the adequacy of current Commonwealth laws.
These include whether:
-
existing provisions are broad enough to cover
the criminal activity involved in the trafficking of women;
-
Australia's laws and procedures comply with its
international legal obligations; and
-
the operation of the Migration Act is
appropriate to trafficked women.
4.26
In answering these questions, the Committee notes that
many of the points raised in submissions to this inquiry have been overtaken by
events and have been addressed within the Government's package, announced in
October 2003.
Commonwealth laws and the
trafficking crime
4.27
Although the enactment of the sexual servitude laws in
1999 represented a clear advance on the existing legislation, evidence to the
inquiry suggests that the legislation contains several limitations to its
effectiveness.
4.28
The first problem is that the structure of the offences
contained in the Criminal Code may not adequately match the operational methods
of the trafficking trade, as described in Chapter 2. In particular, the Commonwealth
legislation does not expressly provide offences that cover the recruitment,
transportation and transfer of the trafficked women, although the Committee
notes that each of these is included in the definition of 'trafficking'
contained in the Protocol.[180] As Chapter
2 demonstrated, the criminal groups that organise the trafficking of women rely
on a network of 'helpers' to identify and recruit the women in their home
country, organise their departure (including document fraud and bribery of
officials), and in some instances, to accompany the women to Australia
and through the Australian customs barrier.
4.29
The second issue relates to the nature of the offence
of deceptive recruiting. Subsection 270(7) of the Code provides:
A person who, with the intention of inducing another person to
enter into an engagement to provide sexual services, deceives that other person
about the fact that the engagement will involve the provision of sexual
services is guilty of an offence.
4.30
The Australian Chapter of the International Committee
of Jurists points out that this definition does not appear to cover:
deception as to the conditions of work which apply to the victim
unless this can be considered as conduct causing a person to enter into sexual
servitude. This is an important issue, as some women are deceived about the
circumstances in which they would have to work in Australia.[181]
4.31
As was concluded in Chapter 2, although a number of
women are undoubtedly deceptively recruited on the misapprehension that they
are to work in jobs outside of the sex industry, it is clear that the majority
of trafficked sex workers understand the nature of the work they are to do in Australia.
However, the majority of the deception that occurs relates to the size of the
women's debt, the numbers of clients they must see, and the range of sexual
services that they must perform. It is essential therefore, that the offence of
deception extends to cover these issues.
4.32
Thirdly, Ms Costello
of Project Respect argued that the current legislation does not address aspects
of migration fraud common to trafficking, including the situation where
traffickers withhold a woman’s travel documents, where a woman is deceived
about her migration status, or where an application for a protection visa is
lodged on her behalf without her knowledge.[182]
4.33
Finally, there is also no express requirement to
consider the impact on the victim in sentencing. The NSW Young Lawyers noted in
their submission that:
As proceedings under the Act will often involve anonymous
victims from overseas, significant aggravating circumstances may be ignored in
determining a sentence if judges are not compelled to consider the particular
circumstances involved and the impact of the crime upon the victim.[183]
4.34
State legislation (such as the NSW Crimes (Sentencing Procedure) Amendment (Victim Impact Statements)
Act 2004) provides for the Court to accept Victim Impact Statements in
certain serious matters, after conviction, and before sentencing. The offences
under the sexual servitude provisions of the Code are undeniably serious,
carrying substantial penalties of up to 25 years imprisonment in some cases.
Given the nature and effect of the sexual trafficking offences on the victim,
there is a compelling reason to require that victim impact be considered when sentencing
offenders.
Conclusion
4.35
The Committee considers that the Australian criminal
laws enacted to counter the trafficking of women for sexual servitude do not
adequately reflect the realities of the trafficking trade. These issues should
therefore be a focus for the legislative review that was announced as part of
the government's anti-trafficking package.
Recommendation 4
4.36
The Committee recommends that the following matters be
examined in the legislative review announced as part of the government package:
-
The adequacy of existing provisions of the Criminal Code Act 1995 covering
recruiting transportation and transfer of women for the purposes of
trafficking;
-
amending section 270(7) of the Criminal Code Act 1995 to broaden the
offence of deception to include deception regarding not only the type of work
to be done, but expressly the kind of services to be provided, whether of a
sexual nature or not;
-
adopting the use of victim impact statements in
sentencing.
International standards
4.37
A second consideration is the way in which Australia's
criminal law fits with international standards.
4.38
As noted, the principle source of law in this area is
the UN Protocol to Prevent, Suppress and
Punish Trafficking in Persons, especially Women and Children, which
Australia has signed but has yet to ratify (although the Committee notes that
the government has indicated that it will ratify as soon as possible,
consistent with the call of many submissions to this inquiry, which were
written prior to the Government's announcement of the new package in October
2003).
4.39
The Committee considers that many of the
responsibilities contained in the Protocol require non-legislative responses,
such as inter-governmental task forces to collect data, bilateral agreements
with the countries of origin to ensure safety of the returned victim, as well
as educational, social and economic programs.[184]
4.40
While many aspects of trafficking have already been
criminalised in Australia,[185] to comply
with the Protocol additional and comprehensive people trafficking offences as
provided in Canadian, New Zealand
and US
legislation may be required.[186] Changes
could include the incorporation of a definition of 'trafficking', which the
Australian Federation of University Women observed is currently absent from
legislation.[187]
4.41
The Attorney General's Department noted that this
general trafficking offence could be supplemented by further specific offences
including deception regarding the contracts and working conditions, a specific
offence dealing with trafficking in children and an offence of debt bondage,
where a person is forced to pay off the debt but with no powers of ownership
attaching.[188]
4.42
The Committee notes that there is no timeframe
associated with the initiatives announced in October last year, nor with any
legislative change which is necessary to implement and ratify the Protocol.
4.43
If Australia
is to honour its international obligations at the co-operative intelligence
level as well as in the implementation of the Protocol, it will be necessary to
review, introduce, pass and implement legislation as soon as possible as a
means of achieving these objectives.
Recommendation 5
4.44
The Committee recommends the speedy implementation of
the legislative review that forms part of the anti-trafficking measures
announced in October 2003. The review should focus particularly on the measures
needed to ensure Australia's compliance with the United Nations Protocol to
Prevent, Suppress and Punish Trafficking in Persons, especially Women and
Children.
Recommendation 6
4.45
The Committee further recommends that the results of
this review form the basis for legislative changes that should be ready for
introduction to the Parliament early in 2005.
Recommendation 7
4.46
That the Protocol be ratified as soon as possible.
Criticisms of the operation of the
Migration Act
4.47
A difficult issue that emerges in combating trafficking
of women for the sex trade is the manner in which the operation of the
Migration Act may have harsher outcomes for the trafficked women than for the
traffickers themselves. Women sex workers who are detained by DIMIA are
ordinarily placed in a detention facility and will be returned to their country
of origin, in the same way as any other illegal non-citizen working in Australia.
4.48
Given that these women should in many cases be regarded
as victims of crime, the operation of the law gives rise to two questions.
Firstly, should illegal sex workers, who may be victims of trafficking, be
detained in the same way as other illegal non-citizens? Secondly, should they
be liable to deportation?
Detention of sex workers who may
have been trafficked
4.49
According to the Department of Immigration submission,
in 2002-2003, 257 people were detected working illegally in the sex industry,[189] and it is
probable that the majority of these were detained, if only briefly, and
deported.
4.50
A number of submissions and witnesses criticised this
procedure, principally on the grounds that trafficked women should first and
foremost be treated as victims of crime, rather than criminals (a point
discussed in Chapter 3).[190] Those
critical of detention point to several deaths of sex workers in detention,[191] and that a
detention centre is not an appropriate place to provide the support services
required by the women. There is also the issue of privacy for these women. The
nature of their work could, if it became known, make them vulnerable to
physical and emotional abuse, and stigmatisation among other detainees, further
complicating their return to their own country. As such, witnesses called for
trafficked women either not to be detained at all,[192] or to be
given separate, private accommodation.[193]
4.51
In considering this criticism, it is important to be
clear about which groups of women are being referred to (and recognising that
some of the comments referred to above were written before the new package was
announced). Following the new government program, women who are suspected of
having been trafficked and judged to be of interest for the investigation or prosecution
of trafficking offences, will not be put into detention.
4.52
The only exception to this is when authorities cannot
determine a person's identity.[194]
Nevertheless, officials stressed that trafficked women under the victim support
program would still receive, wherever possible, all the elements of the support
package even in detention.[195]
4.53
However, all other women working in the sex industry who
are found to be illegal non-citizens will be detained. Setting aside the debate
over the rights and wrongs of the detention policy, this practice is consistent
with the treatment of all other illegal workers detected by authorities.
Secondly, under the new arrangements between DIMIA and the AFP, including the
low referral threshold, any women suspected of being a victim of trafficking
should be referred to police for investigation and, where appropriate, receive
assistance under the victim support program.
4.54
While Committee members may hold varying views on the
issue of the mandatory detention policy in general, the Committee does not
support treating illegal sex workers differently from any other category of
illegal workers.
4.55
For the same reasons, the Committee also disagrees with
the proposals put by several submissions for sex workers in detention to be
held in separate facilities. Within the context of the policy of mandatory
detention, illegal sex workers should be treated in the same manner as other
illegal workers. Separate housing would in all likelihood be counterproductive
and result in the isolation and stigmatisation of the detained women, further
hampering their return to their home countries.
Deportation by DIMIA
4.56
The Committee noted that on one view, deportation of a
trafficked person amounts to a breach of human rights because of the potential
for the person to suffer retaliation on return to her country.[196] The issue
of deportation was one which concerned a number of witnesses, as well as the
Committee, particularly in view of the potential for harm to the victim and her
family.
4.57
The Committee was told by Ms
Osborn, a policy officer from the NSW Public
Health Association of the likely consequences of deportation:
... the people that organised the trafficking in the country they
came from would make sure that their life was miserable. Their families might
have sold them to the trafficking organisation. There are a number of those
sorts of cases. It could be very difficult for them to go back to their country
if they are deported. Their families will lose out.[197]
4.58
The major risk returned women face is that of re-trafficking.[198] According
to Mr Iselin:
The victim knows, as do many law enforcement officers working on
trafficking that deportation means re-trafficking. Sending the victim women
back to their country of origin places them in a position of extreme
vulnerability and at great risk of being re-trafficked. Often they will simply
be recaptured by their original trafficker and trafficked to another
destination. [199]
4.59
Ms Anne
Gallagher agreed:
Trafficking responses that do not place the victim at their
centre are likely to contribute to further violations of victim’s rights and to
re-trafficking: consequences which will also have a negative impact on the
investigation, apprehension, and prosecution of traffickers.
4.60
A second category of women of concern are those who
have agreed to help Australian investigators and stayed in Australia for a
period of potentially several years under a Criminal Justice Stay Visa. Once
the trial process is completed, the reason for the grant of the visa no longer
exists, and these women are likely to be returned to their home countries in
the normal way.
4.61
Having helped Australian authorities, these women face
an altogether more serious threat should they be returned. Ms Sally Moyle from
the Office of the Status of Women observed in evidence, that:
It will be important to monitor the use of trafficking visas
that have been made available. A woman giving evidence in any trafficking
prosecution takes a great risk. As the industry is a small one, a woman who
gives evidence is generally easily identifiable. The visas should be adequate
to assure the longer term safety of the subject and ensure that accepting such
a visa is not an overwhelmingly bad gamble for the woman.[200]
4.62
While the Committee accepts that there is a danger that
a number of women who are returned to their home countries are likely to be
re-trafficked, it does not consider that this is of itself sufficient to
justify a blanket exclusion of trafficked women from the rules requiring
deportation. On the evidence received, probably the majority of these women
voluntarily entered into arrangements to be trafficked to Australia
for sex work, and if deported, would similarly seek to enter voluntarily into
new arrangements to return to Australia
or elsewhere.
4.63
Of some concern to the Committee is the group of women
who, once they have assisted Australian prosecutions, are in danger of retribution
from traffickers should they be returned home. As concluded in the preceding
chapter, Australian authorities cannot give any meaningful guarantees of their
safety once they leave the country. The Committee strongly believes that once a
trafficked woman has agreed to assist Australian authorities, she should not be
returned to her home country against her will.
Recommendation 8
4.64
The Committee recommends that all trafficked women
accepted onto the victim support program or receiving the Criminal Justice Stay
Visa be exempt from compulsory return to their country of origin.
Undercutting traffickers - options for wider reform
4.65
While much of the above discussion focuses on the
existing legal framework, the Committee also heard arguments in favour of more
fundamental legal reform aimed at undermining the role for traffickers bringing
women into Australia
for the sex trade.
4.66
However, the nature of these proposals differed
profoundly, with some witnesses arguing for a change to visa rules to enable
easier entry to Australia
for sex workers, while others sought changes that would reduce demand for sex
workers.
Work visas for sex workers
4.67
The Committee was told that one solution to the
trafficking problem would be to reduce migration barriers to entry and work
rights for women who want to come to Australia
to work in the sex industry.
4.68
As the Scarlet Alliance point out, the majority of
overseas women involved in sex work arrive legally and are in Australia
on working holiday or student visas.[201] While women
from Korea, Malaysia
and Japan are
able to take advantage of easier visa arrangements,[202] trafficked
women tend to originate from countries from which it is extremely difficult to
obtain such visas, such as Thailand
and China, and
it is in these circumstances that the traffickers are able to find their
market.
4.69
In the view of the Scarlet Alliance, enabling women
from these countries to come in on working holiday visas, or to be sponsored by
an employer, would 'pull the carpet from under' the traffickers.[203] At the same
time, legal work status would improve the chances of these sex workers
operating in a work environment that is better regulated by employment and occupational
health and safety laws.
4.70
In their submission, the Scarlet Alliance argued:
The granting of employment rights for these workers ... [would]
remove the criminality attached to these individuals and their work [and] it
would effectively remove the current need for them to be 'underground'. This
would result in these highly marginalised workers having increased access to
information, support, health services, protection from exploitation and access
to victim of crime support services.[204]
4.71
While not doubting the benefits legality of employment
would bring, it will not necessarily resolve the problems which surround the
deception of the women involved. Because many work in illegal brothels the
trafficker may not want to engage in any - even partly - legitimate process
which might open him or her to scrutiny.
Attacking demand
4.72
Other submissions took virtually the opposite approach,
arguing that the best way to reduce the incidence of the trafficking of women
for sexual servitude is to reduce demand
for prostitutes. This argument is underpinned by the view that
decriminalisation of prostitution drives an increase in demand for
prostitution, and when supply of sex workers in Australia
cannot meet that demand, there is an inevitable increase in the probability of trafficking.
In their submission, the Australian Chapter of the International Commission of
Jurists said:
Some take the view that the decriminalisation of prostitution
not only makes it easier to operate the commercial sex industry but also helps
to promote and support international trafficking. NGOs in the US
have emphasised the need to avoid legitimising the sex industry and to provide
real employment alternatives for women rather than making the industry safe and
legal. [205]
4.73
The Catholic Women's League (CWL) argued in their submission that:
Efforts to legalise prostitution must be understood as
inhibitors to the prosecution of those running illegal brothels and trafficking
women. ...[206]
4.74
The Coalition Against Tracking in Women (CATWA)
expressed a similar view:
Legalisation leads to trafficking in two ways: the massive
illegal industry, which always accompanies legalisation - for instance, in Victoria
an estimated 100 legal and 400 illegal brothels employ trafficked women; and
the legal industry, which also uses trafficked women.[207]
4.75
The Committee also noted that both the CWL and CATWA
refer to the alternate model offered by Swedish legislation which criminalises
the purchase of prostitution services while decriminalising the supply.
According to these groups, the legislation has had the effect of causing 60% of
women to leave the industry and there has been no increase in the number of
trafficked women since the implementation of the legislation.[208]
Conclusion
4.76
The two approaches detailed above reflect a
fundamentally opposed view of the legitimacy of the sex industry. On one view,
prostitution is a legitimate career choice, which should remain legalised and
properly controlled. On the other view, prostitution is a form of exploitation,
which should never be legitimised.
4.77
This is a somewhat broader (and older) debate, that the
Committee does not intend to enter into and which is, in any case, beyond its
terms of reference.
4.78
Similarly, the suggestions aimed at addressing the
demand for prostitution involve judgements about the legalisation of brothels,
which are a matter for state and territory governments rather than the
Commonwealth.
4.79
The Committee notes that part of the initiatives
announced in October last year was to place a senior DIMIA officer in Bangkok,
to focus on the trafficking issue. The Committee believes that it is more
appropriate to put personnel in key centres, such as Bangkok,
to assist in tracking and deterring traffickers and the trafficked at the
beginning of the process.
4.80
In relation to the suggestions of the Scarlet Alliance,
the Committee accepts that changes to the current restrictions on working visas
may do much to enable women wishing to come to Australia
for sex work to do so without recourse to the services of traffickers. At the
same time, the Committee considers that even a substantial widening of the visa
rules would not of itself solve the trafficking problem, since there will
always be those who wish to enter Australia but cannot, and who will therefore
fall victim to traffickers.
4.81
However, the Committee is concerned that the
prosecutions, which require the attendance of a trafficked woman as a witness,
can take years to reach the stage of hearing. To require the woman to remain Australia
without contact from family over that period could discourage her from
providing important prosecution information, and the Committee is aware of the
possibility of losing a witness in such a process.
4.82
Currently, a witness who is on a Criminal Justice Stay
visa cannot leave Australia
and return, since to do so requires a different visa: the Criminal Justice
Entry visa. It should also be remembered that women in this situation, as
foreign nationals, can return to their home country at any time, so it is
important that Australian migration arrangements do not create impediments to
the return of witnesses.
Recommendation 9
4.83
The Committee recommends that the government review
current visa provisions, and consider changes to ensure that the Minister for
Immigration has the discretion to allow witnesses to return to their country of
origin for short periods to enable contact with their families. Such a visit
should be subject to conditions including reporting requirements.
The Hon. Bruce Baird MP
Committee Chair
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