Background
Within Australia, there are a number of agencies and people that might potentially encounter situations that involve trafficking in women for the purposes of sexual servitude. They include:
- state and territory police, responding to intelligence and crime reports
- the AFP, responding to intelligence and crime reports
- DIAC, through their immigration compliance activities both within Australia and overseas
- NGOs working directly with workers or operators in the commercial sex industry
- health or crisis services working directly with women
- clients of sex workers
- agencies involved in monitoring and regulating the sex industry, such as local councils and industry regulators
- members of the community who become acquainted with a victim's situation or circumstances
- embassy officials.
Sources of AFP referrals and information leading to detection
Statistics on the manner in which trafficking cases have come to the AFP's attention are not available. However, from interviews and a review of prosecution transcripts, it appears that the majority of AFP trafficking investigations have been initiated by a referral from DIAC. Most of these referrals have resulted from DIAC's onshore compliance activity, particularly in relation to detecting illegal workers in the commercial sex industry (for DIAC's purposes, an illegal worker is a person who works in Australia without immigration authority, or who does not comply with the work conditions attached to their visa).
Other known sources of referrals include:
- In at least one case, the suspected victim of trafficking called 000; the Xu case in New South Wales is one example of this (Commonwealth DPP v Xu [2005] NSWSC 191).
- In at least two cases, suspected victims of trafficking have sought help from their embassy in Australia.
- In at least one case, the suspected victims of trafficking sought help from the front desk of the local police station.
- In at least two cases, suspected victims of trafficking sought help from brothel clients. In Sieders & Yotchomchin, the victim sought help from a client, who then reported the matter to DIAC's Immigration Dob-in Line. In the Xu case, the alleged victim reported having sought help from several clients; none appeared to have reported the matter to the authorities. However, one ex-client provided the victim with practical assistance, in the form of a place to stay, once she was on her own in the Australian community.
- In at least one case, the suspicion of state police was aroused as a result of proactive investigative activities of the illegal sex industry.
- In at least one case, an AFP investigation was commenced following DIAC compliance activities undertaken outside Australia.
The role of state and territory police
Over the past few years, state and territory police have become increasingly involved in the response to trafficking in women for the purposes of sexual exploitation. All police services have undertaken intelligence assessments of the trafficking situation in their jurisdictions. Representatives from each police service report their recent activities through the Ministerial Council for Police and Emergency Management. (Reporting was previously undertaken through the precursor bodies, the Australasian Police Minister's Council and the Australasian Crime Commissioners' Forum.) All Australian police services have signed a protocol, the practical effect of which is that state and territory police will provide a first response to trafficking if detected, before handing the matter to the AFP. Police officers from each jurisdiction (except Tasmania) have undertaken the AFP's specialist trafficking investigations course.
While it was not possible to interview representatives from every jurisdiction's police service, interviews were held with a small number of representatives from investigative units in those jurisdictions that have had reported cases of trafficking in women for the purposes of sexual exploitation, namely New South Wales, Victoria and Queensland.
The situation for police in terms of detecting or responding to trafficking in the context of the sex industry is different in each jurisdiction. In Queensland, police still proactively oversee the sex industry. Following the Fitzgerald Commission into Police Corruption 1987–89, the Licensing Branch of Queensland Police was disbanded and the Prostitution Enforcement Task Force was created. Several checks and balances are in place to ensure the integrity of the taskforce, including regular rotation of staff. The taskforce's role includes probity, through checking of license applications; and compliance, including detecting illegal operators. The Queensland police officers interviewed noted that this role places them in quite a different situation to other state police services, which no longer police the commercial sex industry. As at June 2007, Queensland Police had a role in detecting at least one case of suspected trafficking in persons, as a result of proactively targeting the illegal sex industry.
The situation is very different in both Victoria and New South Wales. In those jurisdictions, the state police do not have a specific regulatory role that brings them into contact with the sex industry, except where a crime is reported, such as might occur in any other private home or industry. The response to trafficking for the purposes of sexual servitude is coordinated through the sexual assault units in those jurisdictions. In Victoria, this involves the Sex Crimes Theme Desk, which is responsible for, among other things, making assessments about trafficking for the purposes of sexual servitude. In New South Wales, the response to trafficking for the purposes of sexual servitude is coordinated through the Child Protection and Sex Crimes Squad. The activities of these units are carried out within the context of the highly developed state policing responses to sexual assault.
In May 2007, Victoria Police reported having received nine reports since 2002 of crimes involving slavery or sexual servitude; all were referred to the AFP. The NSW Police Force reported having received a small number of crime reports that involved situations that could be described as trafficking; several were referred to the AFP or dealt with jointly with the AFP. These cases involved a range of fact situations – the facts as claimed by the victim: what they say happened to them ('I was recruited, they lied to me, etc.'); or the broader set of surrounding circumstances, including how it came to police attention ('they went to the police to get help, etc.') – including:
- An adult woman was brought to Australia, following an arranged marriage in her home country. It was alleged that once in Australia, the woman's husband forced her to work in a brothel. The victim, who could not speak English, continued to work in the brothel in response to physical threats her husband made against her, and her fear that she would be deported to her home country where she would face Islamic law. The woman's husband, in fact, took her back to her home country, where she sought assistance from the Australian Embassy. Her return to Australia was facilitated, and charges were laid against her husband.
- Three Indonesian women presented to police at the Surry Hills police station, claiming they were being held against their will and forced to provide sexual services. This became the Kwok case and involved the laying of charges under both NSW and Commonwealth law.
- A Thai woman called 000 from a brothel. NSW police provided the first response. This became the Xu case and involved charges under both NSW and Commonwealth law.
The Victorian police officers interviewed expressed the view that there are several issues that affect victim detection. In particular, immigration status is a major issue impacting on the willingness of victims of trafficking to come forward or to be detected. The police expressed concern about the impact of linking visas for victims to participation in a criminal justice process. They noted that the Victorian Government is funding a victim support program that will take a victim-centred approach.
Victorian police officers interviewed also noted that regulation of the sex industry in Victoria is dispersed across several agencies, each of which looks after a discrete issue. The absence of a 'one-stop shop' makes it difficult for police to get a complete picture of issues that might involve the sex industry. The vice unit was disbanded in 1999. Today, Victorian police are trying to build up their intelligence on issues including the illegal aspects of the Victorian sex industry. Victorian police officers also noted the challenges in responding proactively to crime. They indicated this is an issue across all crime types, not only trafficking. However, this lack of capacity may have a particular impact on a crime type such as trafficking, where proactive policing methods may be the most effective. Victorian police noted the need for training for front-line officers in how to detect trafficking. They noted this is unlikely to be part of the current Victoria Police training agenda for general duties officers, as the data (nine crime reports) does not support allocation of resources to this area. Specific training is delivered to specialist areas within Victoria Police on investigating trafficking offences.
The NSW police officers interviewed noted that their service has recently formulated a standard operating procedure to respond to incidents that may involve people being held in sexual servitude. The procedure requires the first responding police unit to remove victims from harm, preserve evidence at the crime scene, and identify witnesses and suspects. Matters thought to involve trafficking of victims from other jurisdictions are referred to the AFP. The NSW Police Force has, for several years, included in the training of its detectives sessions on trafficking in persons for the purposes of sexual exploitation. While noting the seriousness of trafficking as a crime type, interviewees noted that the number of reported trafficking cases is low, particularly when considered against the incidence of other serious crimes against the person, such as sexual assault.
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DIAC's role in detecting trafficking
DIAC has been an important source of referrals for the AFP. From 1 July 1999 to 31 December 2007, DIAC had formally referred 221 matters to the AFP (a 'matter' could be a piece of information, such as a location or a specific individual). This included 196 referrals relating specifically to the sex industry, involving 174 suspected trafficked persons. As the threshold for referral is very low, not all matters referred to the AFP will result in investigations. However, information received that does not result in an investigation feeds into the overall intelligence-gathering process.
In the onshore context, DIAC compliance officers conduct field operations to locate foreign nationals who have breached their visa conditions, or who have overstayed their visas and are unlawfully in Australia. These field operations include execution of search warrants (also described as 'immigration raids' by a number of participants). The issue of warrants is regulated by law. Under the Migration Act 1958, DIAC officers can only obtain a search warrant to enter premises when they have reasonable cause to believe there is an unlawful non-citizen or a person breaching their visa conditions. If DIAC officers do not have a search warrant, officers can only enter premises with permission from the occupants.
The DIAC compliance officers (onshore) that were interviewed noted using several strategies to help detect trafficking in the context of field operations. DIAC compliance officers will ask non-citizens various questions to try to elicit information that may indicate whether a person has been trafficked. If indicators of trafficking are detected, DIAC will refer the matter to the AFP under the agreed referral protocol. If trafficking is indicated or suspected, DIAC will refer the matter to the AFP regardless of the person's immigration status.
Each DIAC officer interviewed noted that building trust is the key to an effective interview. Women need to feel safe before they will talk. DIAC officers reported trying to create conditions of privacy and safety, where women might feel more comfortable or able to report trafficking or seek help. For example, in a raid situation, DIAC compliance officers will interview each person separately, away from other workers and the brothel owner. DIAC tries to match the gender of the interviewing officer with the gender of the interviewee. Also, some DIAC officers have relevant language skills, and DIAC also uses interpreters.
Nonetheless, there are a lot of challenges involved in trying to create a situation of trust in these circumstances. DIAC compliance officers must first establish the immigration status of the people they are interviewing. Having established this, the DIAC officer then has to seek further information that might indicate trafficking, and explain the protections available under Australian law. DIAC officers noted that this involves taking off their 'compliance hat' and putting on another 'hat'. DIAC officers noted that many people do not trust immigration officials. Accordingly, it can be difficult for people to believe that DIAC officers can be trusted or that they will provide assistance.
DIAC officers interviewed also noted the limits of their role, which primarily relates to compliance with immigration laws. While DIAC officers will look for indicators of trafficking, they are not investigators of this crime type. If a person has a valid visa and appears to be complying with the terms of that visa, or if they are Australian, DIAC officers have limited capacity to take further action even if they suspect a trafficking offence may be taking place. In these circumstances, DIAC can invite (but cannot compel) the person suspected of being a victim of trafficking to leave the premises with them. DIAC will also refer the matter to the AFP under the agreed referral protocol.
Competing views on the impact of compliance activities
While DIAC compliance activities have been an important source of referrals to the AFP, the various stakeholders hold competing views about the broader impact of these activities. In particular, there is a perception 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. Some also hold the view that while DIAC compliance activities may have resulted in assistance being given to a small number of victims of trafficking, these activities have had a negative impact on a much larger number of women.
The different perspectives on the impact of compliance activities can be illustrated by an example. Representatives from SWOP (NSW), individual DIAC compliance officers and AFP investigators noted that some operators appear to have moved from a brothel system to an escort system, where there is no central place of work to raid. On one view, operators are getting 'smarter' to avoid detection. On another view, changing business models is a legitimate response to continuing disruption to business and perceived harassment.
From either view, the result is the same. SWOP noted that the trend towards closing brothels and moving to escort-based work has particular implications for all workers in the sex industry, and not just victims of trafficking. In particular, a move to escort work removes women from the relative safety of a brothel, and means they are likely to be providing services or working alone. This practice distances workers not only from outreach workers but also makes them harder for DIAC and the AFP to access.
SWOP also reported other impacts that appear to have resulted from increased compliance activities in the sex industry. In particular, some operators have tended to further isolate their workers, again removing them from the reach of outreach workers, DIAC and the AFP. There also appears to have been a significant increase in the fee charged for a contract to work in Australia. This means sex workers operating under a contract must provide more services, over a longer period, before they can start earning an income for themselves. This effectively increases the length of time that these women remain unpaid, and are potentially vulnerable to abuse and exploitation.
As DIAC compliance operations may involve a joint operation with the AFP, in many senses, the views expressed about the impact of DIAC compliance activities are perhaps comments about the broader law enforcement response to trafficking in persons. However, interviews also suggested the limitations of DIACs role in relation to detecting trafficking. As noted by compliance officers, their role relates primarily to compliance with the Migration Act. Immigration raids are primarily designed to detect and detain illegal workers. It is vital that during raids, immigration officers are alert to indicators of trafficking, so they can pass information on to the police and offer suspected victims of trafficking support and assistance. However, it is also important to be realistic about the limits of these situations. Despite the best efforts of compliance officers, raids are likely to be frightening situations and immigration officials may be perceived as a threat rather than a source of help. As a result, victims of trafficking may not self-identify or seek help in this context.
Several NGO participants commented that compliance and law enforcement activities have been a focus of the anti-trafficking response, in a context where there has been comparatively less focus and resources available for approaches such as peer education and outreach. Given the many cultural and social barriers that may prevent women in marginal situations from seeking help, the view was expressed that women need to be able to seek information, advice and support in situations that are both culturally appropriate and non-threatening. A level of frustration was also expressed that services already working with women in the sex industry were not being resourced as part of the anti-trafficking response. It was felt that these services had the right experience and networks to educate workers and operators in the industry about relevant issues, and were also well placed to detect exploitative situations.
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Willingness to cooperate with police
Information is not available about the proportion of suspected victims of trafficking who were, for example, immediately cooperative with police, who initially refused to cooperate but later went on to cooperate with police, or who refused to cooperate with police at all. However, every participant who was interviewed noted many reasons for an individual not wanting to cooperate with the authorities and/or not wanting to self-identify as a victim of trafficking. Reasons included:
- lack of trust in the police in their home country, resulting in lack of trust in police in Australia
- fear of what might happen to them or their family
- confusion and distress
- concern about getting into trouble
- the pressure or the need to keep working, earning money and remitting money home
- concern about immigration status and fear of deportation
- shame
- concern about their debt.
Against this backdrop, several participants noted the importance of recognising and respecting a woman's right and ability to make decisions for herself, even in situations of limited choice, and taking account of the many structural factors that might quite reasonably affect a woman's decision-making process. For example:
- Several participants, including participants from criminal justice agencies, noted that they understand why a victim of trafficking would not want to get involved with a trafficking investigation or prosecution. In particular, women may just want to get on with their lives and put the whole thing behind them. They may have already moved on by the time they come into contact with police. Also, being involved in a criminal justice process means being in limbo for a long time, having to deal with difficult and intrusive questions, and then having to go through difficult court process that can stretch over years.
- A representative from SWOP (NSW) noted that some women might want and need help to get out of an exploitative situation. However, they may also want and need to keep working. In this scenario, the option of being placed onto a visa for up to 30 days that does not include work rights will not meet their needs.
- Representatives from several NGOs, and from at least one state police service, noted that women may be victims of trafficking, but they nonetheless may not want to get involved with police or other officials. They emphasised the importance of ensuring that a range of options are open to women, beyond the option of being streamed into the criminal justice visa regime with consequent access to victim support; or being screened out, which has the result of no entitlements to victim support through the Commonwealth program.
Fact situations are complex
Many participants noted the inherent complexities of detecting trafficking when many situations involve 'shades of grey' rather than situations that are 'black and white'. While the criminal law operates on the assumption that there is a clear line between right and wrong, in reality, situations are messy, complex and there can be multiple perspectives on a single set of circumstances. Participants noted several competing considerations that affect how a situation is viewed, namely:
- gender, where the need to respect individual agency or autonomy can compete with considerations of apparent or real vulnerability, particularly in situations where there are extreme power imbalances
- exploitation, in situations where perceptions of exploitation vary greatly according to personal circumstance, economic disparity, cultural background and individual beliefs
- culture, in situations where a person's obligation to provide for their family may override other considerations, or respect for older people may impact on behaviour, even where there is an abuse of trust or power
- migration, where different national groups have different access to visas, and therefore different entitlements to work in Australia. This was considered potentially relevant to detection and also to vulnerability, if women sought the assistance of agents to migrate, with attendant consequences for debt.
Many participants – including AFP investigators, immigration compliance officers and NGOs – all noted the importance of keeping an open mind, not rushing to make judgements and taking the victim's perspective into account. Participants also emphasised the importance of having a depth of insight into cultural considerations. Some participants referred to the need for those involved to have a high degree of empathy and cultural competence.