Research objectives and methodology
In 2007, the Office for Women commissioned the Australian Institute of Criminology to undertake research on the issue of 'trafficking of women for sexual purposes: barriers to victim detection, identification and reporting' and the successful prosecution of traffickers.
The research involved a literature review, a review of trial transcripts where these were available, and interviews with a number of individuals and organisations that have had firsthand experience of responding to trafficking in persons in Australia (a list of interviews is in Appendix A). Interviews sought to elicit information about the key issues, challenges or barriers that have arisen in known trafficking cases in Australia, along with 'lessons learnt' relating to victim identification, and the investigation and prosecution of offenders.
Research findings
The experience of detecting victims of trafficking
The trafficking cases that have come to official attention have been detected partly as a result of government activity, and partly through individual women seeking help and assistance. A number of cases have been detected following Department of Immigration and Citizenship (DIAC) referrals to the Australian Federal police (AFP) following compliance activities in the sex industry. The state police services in several jurisdictions have also referred suspected cases. In a number of matters, victims of trafficking have actively sought help and assistance; for example, by calling 000, going to a local police station, contacting their embassy in Australia and asking the men they meet in brothels to help them.
The state policing response to trafficking of women for sexual purposes is situated differently in the various jurisdictions. In Queensland, detecting and responding to this crime type is part of the remit of the Prostitution Enforcement Taskforce in Queensland, whereas it is part of the sexual assault response in Victoria and New South Wales. Each of these jurisdictions had crime reports that had been investigated either in conjunction with, or by, the AFP. State police noted a number of factors that might impact on detection, including immigration status and fear of deportation, different approaches to policing the sex industry, capacity for proactive policing, and the small number of crime reports for this crime type, which impact on resources and training.
DIAC has been an important source of referrals to the AFP. Investigators noted the importance and strength of collaborative working relationships with DIAC. Immigration compliance officers receive training in detecting indicators of trafficking, and described using various strategies to build trust and rapport with the women they encounter, as part of creating an environment where women may be willing to seek help. DIAC's awareness and response to trafficking has led to a number of suspected trafficking cases being detected and quickly brought to the attention of the AFP.
However, there are competing views on the broader impact of these activities. There is a view within the sex industry that it is being disproportionately targeted through DIAC compliance activities, reflecting a misguided view that trafficking only takes place in the sex industry. This is perceived as a backdoor reintroduction of policing into the sex industry, in a context where the state and territory governments have pursued policies that have sought to reduce or remove the role of police in regulating the sex industry through legalisation or decriminalisation. It was noted that compliance and law enforcement activities have been a focus of the anti-trafficking response, in a context where there has been comparatively little focus or funding for approaches such as peer education and outreach. Given the many barriers that may prevent women in marginal situations from seeking help, peer education and outreach were considered to be appropriate mechanisms that needed to be explored further.
Participants noted a range of reasons why women may not want to come forward: concern about debt and financial pressures to make remittances, fear of what traffickers might do to them or their families, lack of trust in officials due to experiences in their home countries, a fear of deportation, and a desire to just get on with life. Participants from across the spectrum noted they can understand why women would not want to participate in a criminal justice process: this involves having to answer intrusive questions, and being isolated from friends and potentially family, and criminal justice processes can extend over many years.
The fact situations involved in the trafficking cases that have been detected are not clear-cut. In particular, there is an unresolved tension between wanting to respect women's capacity to exercise choice, while also recognising that women may be operating in situations of constrained choice, which can be exploited. Among participants, there are very different understandings of concepts such as 'exploitation'. It was also noted that individuals will have different perceptions of a range of issues, including debt, family obligation and priority, depending on cultural background. Finally, several participants noted that different national groups have access to different categories of visas and therefore different entitlements to work in Australia. This was raised as an issue that may impact on detection but also vulnerability, if women sought the assistance of agents to migrate outside of lawful channels. The importance of keeping an open mind, not rushing to make judgements, and taking the individual's perspective into account were all considered important to capacity to detect victims of trafficking.
The experience of investigating trafficking offences
The AFP investigators that were interviewed noted that the trafficking cases that have been detected do not match stereotypes about 'high-end' organised crime; also, cases have been detected in the legal and the illegal sex industries. Some felt that this distinction was irrelevant, from the perspective of investigating trafficking. The experience of the past four years suggests that trafficking investigations can be long, complex and resource-intensive. As the victim's account is generally crucial to the success or failure of any prosecution, it is vital to ensure that these are sufficiently corroborated. Also, there are complexities associated with investigating transnational crime: investigators will likely need to use interpreters for all interactions with both victims and suspects, and to understand key evidence such as telephone interceptions; victims may want to return home, in which case they may or may not continue to be involved in an investigation; and investigations may need to be coordinated with other police services overseas.
AFP investigators noted that the victims of trafficking who have been identified have not been subjected to physical violence in the form of beatings. However, they have experienced high levels of abuse. This has implications for the conduct of investigations: it is not realistic to expect that victims will open up to complete strangers in the first interview; and an opportunity to build trust and rapport is vital, along with a capacity to delay and suspend interviews as needed. Several AFP investigators also noted that working directly with victims of personal crime is a relatively new development for the AFP. In contrast, the state and territory police work with victims of crime every day. The view was expressed that a background in state policing is an advantage for this reason. The AFP's specialist training program, the Transnational Sexual Exploitation Investigations Program, covers issues including working with victims of crime, and is highly regarded. However, several participants expressed the view that training could be usefully expanded and localised, drawing on experience from the states and territories of working with victims of crime, and particularly victims who have experienced sexual assault.
Investigators and prosecutors emphasised the importance of high-quality, comprehensive victim support programs. In addition to humanitarian considerations, investigators noted a direct correlation between the quality of victim support and the quality of evidence; and the risk to investigations if victim support programs were not appropriately structured and resourced. The experience of the past four years has suggested a number of gaps in the existing victim support program, some of which have been overcome by recent reforms but some of which have not. Key issues would appear to include the need to increase the use of interpreters throughout the victim support program, a perceived variability in the quality and type of services that are offered to individual clients, opportunities for family reunification (including for children who are located offshore, and same sex partners), and access to increased legal advice. The opportunity for both clients of the program and those who interact with clients to give feedback or raise concerns through an accessible and appropriate mechanism was also considered vital.
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The experience of prosecuting trafficking cases
There has been a number of trafficking prosecutions undertaken in Australia. As at 31 January 2008, the Commonwealth Department of Public Prosecutions had received briefs of evidence from the AFP concerning 29 defendants alleged to have committed trafficking offences (offences under Divisions 270 and 271 of the Criminal Code (Cth)). Charges against a number of defendants were dropped due to insufficient evidence. This follows hung juries in at least two cases. A number of defendants have been tried and convicted. However, very few cases have been finalised, as there are a number of appeals pending. Cases can extend over a long period of time; for example, the defendant Wei Tang was first arrested in 2003, and this matter is still before the courts in May 2008. With so few cases having gone through the full length of the court system, it is very difficult to draw out meaningful trends.
Nonetheless, prosecutors noted that 'prior inconsistent statements' have been a major challenge in prosecutions. The existence of a prior inconsistent statement is a legitimate ground on which to challenge the credibility (or believability) of witnesses. In all Australian trafficking cases to date, evidence from the alleged victims has been a crucial part of the prosecution case. If the alleged victim is not believable, for example, because their story has changed over time, this can cause the whole prosecution case to collapse if there is no other supporting evidence. This suggests the significance of creating optimal conditions for undertaking interviews as part of the investigation process, testing the alleged victim's statement as it will be later tested in court, timing around finalisation of statements and corroboration.
The credibility of witnesses has also been challenged on other grounds; for example, because witnesses have allegedly not paid tax, or they have participated in visa fraud. In at least one case, defence counsel sought to suggest the victim was not believable by invoking what can only be described as stereotypes about sex workers and Thai women in Australia. Witnesses (a term that includes but is not restricted to alleged victims) have been subjected to fairly harsh and invasive cross-examination in situations where they are sitting in open court in full view of the defendants, sometimes with their names available to be published in the press.
In several cases, prosecutors have successfully argued for name suppression orders, and closing the court on the basis of public policy. These protections were not automatic but had to be applied for, and decisions appealed, where necessary. The situation is less clear where participating as a witness can cause invasion of privacy (e.g. disclosing that you are either a sex worker or a client of a sex worker). As federal law is silent on the issue of in-court protections for witnesses, these issues are currently decided by reference to the applicable state or territory law and the rules of the court. As a result, there is a lack of consistency about what protections are available for witnesses in trafficking prosecutions.
There are risks in the prosecution process that flow from making any form of assistance available to witnesses. In particular, defence counsel has argued that witnesses (including alleged victims) have been 'bought' by inducements such as immunity from prosecution and access to visas or entitlements under the federal victim support program. To minimise this risk at least in so far as it relates to women on the victim support program, the AFP has delayed seeking Witness Protection (Trafficking) Certificate from the Attorney-General until after the completion of criminal justice processes. This means that the credit of women on the program is less vulnerable to attack in court on the basis of 'inducements'. However, the impact of this practice on the victim was noted. Certainty around migration status and capacity to reunite with family were noted as significant issues for women on the victim support program.
Recommendations
As the anti-trafficking response is relatively new, information and experience is still emerging. A number of issues were identified in the research process that merit further consideration. The following is a summary of the recommendations detailed in the report:
- Reconceptualise the current visa framework to accommodate situations where women (who are not in stable or regular migration situations) want help to escape or recover from trafficking situations, but do not want to engage with the police or other criminal justice authorities.
- Clarify the time frames for moving women onto longer-term visas, as part of providing greater certainty for women on the victim support program. Under current arrangements, this would involve setting clear time frames for when the AFP should seek a Witness Protection (Trafficking) Certificate from the Attorney-General.
- Fund culturally appropriate outreach services for women, so that women can seek appropriate support and advice from a range of services beyond the parameters of the criminal justice system.
- Ensure the federally funded victim support program is comprehensive and of high quality. This may require consideration of the following:
- creating the conditions that support effective performance management of the service provider
- developing a service standard to ensure clarity around what services can be offered and the level and quality of service provision that can be expected, greater certainty around how different interests will be balanced (for example, the relative priority of individual client needs as against criminal justice imperatives), and to formalise mechanisms for giving feedback or raising concerns arising from individual cases
- ensuring that information is collected from clients of the program about their perceptions of the program (for example, pre and post-exit surveys or interviews)
- increasing the involvement of the broader community sector in the victim support program.
- Capture the AFP's institutional learning through the development of protocols or standard operating procedures on relevant issues, including the conduct of interviews with suspected victims of trafficking. This will help to ensure that good practices developed by individuals through experience become standard practice throughout the organisation.
- Expand AFP training to include more focus on working directly with victims of crime, and particularly victims of crime that involve a strong sexual element. Make opportunities for continuing training available at the local level, including through drawing on relevant state and territory police training programs.
- Continue to build training opportunities for prosecutors, to ensure these are at least comparable to training available for other agencies, including the AFP and DIAC.
- Ensure laws are available to provide an appropriate level of protection to witnesses (including but not only complainants) who give evidence in trafficking prosecutions, bearing in mind considerations of safety but also legitimate concerns about privacy.
- Create more opportunities for operational (or front-line) officials to share their knowledge and experience, and to build relevant networks.
- Release more information about the anti-trafficking response; not only the policy framework, but also about how it operates in practice. Policy needs to be firmly grounded in evidence, so information should be shared for research and evaluation purposes.
- Build stronger cooperation between the government and non-government sectors to draw in a broader range of knowledge, skills, experience and capacity. This will likely require increased information sharing, clarity and mutual respect about roles, responsibilities and funding.
- Monitor the broader impact of the anti-trafficking response, including its impact beyond the target audience of both victims of trafficking and offenders.