Time for a change? Access to support and visas for trafficking victims

Posted 22/08/2012 by Cat Barker

The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 (Trafficking Bill) will update Australia’s offence regime to criminalise a broader range of exploitative conduct, including by introducing new offences of forced labour, forced marriage and harbouring a victim.  While these are welcome changes, there is a strong call from stakeholders to improve other aspects of Australia’s anti-people trafficking framework, including the support available to victims and their access to visas.

Articles 6 and 7 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women (Trafficking Protocol), ratified by Australia in 2005, outline parties’ obligations with respect to assistance and protection of victims of people trafficking and their legal status within receiving States.  Among those obligations, parties are required to:
  • protect the privacy and identity of victims
  • enable victims’ views and concerns to be presented and considered in the criminal justice process
  • consider implementing measures to support the physical, psychological and social recovery of victims (such as provision of appropriate housing, counselling and medical, psychological and material assistance)
  • provide measures that offer victims the possibility of obtaining compensation and
  • consider adopting measures to permit victims to remain in the receiving State temporarily or permanently, giving appropriate consideration to humanitarian and compassionate factors.
The Department of Families, Housing, Community Services and Indigenous Affairs administers Australia’s Support for Victims of People Trafficking Program (support program).  As outlined in the Third Report of the Anti-People Trafficking Interdepartmental Committee, the support program is comprised of the following streams:
  • the Assessment Stream provides up to 45 days of intensive support to all suspected victims
  • the Extended Assessment Stream provides up to 45 days additional support for victims who are willing, but not able, to assist with an investigation or prosecution
  • the Justice Support Stream provides support to a victim assisting with an investigation or prosecution until the matter is finalised and
  • the Temporary Trial Support Stream provides intensive support to victims who return to Australia to give evidence for a prosecution.
Victims leaving the program also receive 20 days of transitional assistance.

The People Trafficking Visa Framework (visa framework), also outlined in that report, allows foreign nationals suspected to be victims of people trafficking to remain lawfully in Australia if they do not already hold a valid visa.  The framework comprises the Bridging F visa, the Criminal Justice Stay visa and the Witness Protection (Trafficking) (Permanent) visa.

A range of changesthat came into effect on 1 July 2009 made the support program and visa framework more accessible and responsive to victims’ needs.  However, in consultations leading up to its introduction, and in submissions to a current Senate inquiry into the Trafficking Bill, many stakeholders have argued that further amendments should be pursued.  The United Nations Special Rapporteur on trafficking in persons, especially women and children (Special Rapporteur) also recommended a number of improvements in the May 2012 report on her mission to Australia.

The following diagram outlines the current visa framework and its interaction with the supportprogram:

The current visa framework and its interaction with the support program
 Source: JJ Larsen, L Renshaw, S Gray-Barry, H Andrevski and T Corsbie, Trafficking in persons monitoring report: January 2009-June 2011, Australian Institute of Criminology, Canberra 2012, p. 13.

Despite the changes made in 2009, it is clear that access to visas and to the support program still vary considerably depending on the ability and willingness of a suspected victim to assist an investigation or prosecution.  It is this aspect that has drawn the most criticism, with a range of stakeholders, as well as the Special Rapporteur and the Greensarguing that access to visas and to the support program should be determined solely on the basis of need, not on a victim’s willingness or ability to assist in the criminal justice process.  In addition, the Law Council of Australia has raised concerns that the focus on assisting the criminal justice process may discourage victims from seeking a visa, due to fears of reprisal against themselves or family members.  Beyond the requirement to give due consideration to humanitarian and compassionate factors, the Trafficking Protocol does not contain anything specific on the matter.  However, guidance issued by the United Nations High Commissioner for Human Rights states that protection and assistance provided to victims ‘shall not be made conditional upon the capacity or willingness of the trafficked person to cooperate in legal proceedings.’

The Australian Lawyers Alliance (ALA) has suggested that providing equal access to visas and support to all victims is likely to not only improve outcomes for victims, but also increase their willingness to assist in the criminal justice process.  Victims may be more likely to trust law enforcement authorities if they are confident of their residence status.  Providing equal access could also assist prosecutions by helping to protect against attempts to discredit victims’ testimony on the basis that the victim is seeking residency.

The Special Rapporteur and the ALA have also argued that the initial support period of 45 days is not sufficient for victims to process what they have experienced and to form relationships of trust with immigration and law enforcement agencies.  Among eight formal recommendations made to the Australian Government by the Special Rapporteur on support for victims of trafficking was the extension of the initial period of support from 45 to 90 days.

While not directly relevant to the Trafficking Bill, victims’ access to visas and the support program are important aspects of Australia’s response to people trafficking, and suggestions for improvement deserve the attention of the Government and the Parliament.

The Special Rapporteur’s visitand reportare detailed in earlier FlagPosts.  A broad outline of the Trafficking Bill was also provided in an earlier FlagPost, and a Bills Digest will soon be available on the Parliamentary Library’s website.

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Flagpost is a blog on current issues of interest to members of the Australian Parliament

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