Trafficking of women for sexual purposes: Research and Public Policy Series - No. 95 

The following section summarises the major features of the criminal justice response to trafficking of persons in Australia.

• Policy framework
• Legal framework
• Law enforcement
• State and territory law enforcement
• Immigration
• People Trafficking Visa Framework
• Prosecutions
• Victim support
• Context, including regulation of the commercial sex industry in Australia

Policy framework

In June 2004, the Australian Government announced its Action Plan to Eradicate Trafficking in Persons (Australian Government 2004). The action plan detailed a range of new commitments, including significant reforms to laws, policies and practices. These are discussed below where they are relevant to the Australian criminal justice response to trafficking.

Legal framework

In 1999, the offences of slavery and sexual servitude were introduced into the Criminal Code (Cth). This was followed by a series of legislative reforms, primarily in 2005, in preparation for Australia's ratification of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons (United Nations Trafficking Protocol). Australia ratified the Protocol in 2005. This followed ratification of the United Nations Convention against Transnational Organized Crime in 2004.

The Criminal Code (Cth) includes a variety of offences such as:

• slavery (penalty of up to 25 years imprisonment)
• sexual servitude (up to 15 years)
• deceptive recruiting for sexual servitude (up to seven years)
• trafficking (up to 12 years)
• trafficking in children (up to 25 years)
• domestic trafficking in persons (up to 12 years)
• debt bondage (up to 12 months).

These crimes are considered to be aggravated offences, which attract higher penalties in certain circumstances, such as when children are involved. All the offence provisions noted above (except those relating to domestic trafficking) have 'extended geographical jurisdiction' – that is, the laws can cover situations where the crime has taken place partly in Australia and partly overseas or where the crime has been committed outside Australia but the offender is an Australian citizen, resident or company.

Australia has a variety of other laws that are relevant to trafficking in persons. For example, as a result of recent amendments to the Migration Act 1958 (Cth), it is an offence for an employer, labour hire company, employment agency or other person to knowingly or recklessly allow a non-citizen without work rights to work, or to refer them for work. Where the worker is exploited through slavery, forced labour or sexual servitude, the maximum penalties are five years imprisonment, and/or fines of up to $33,000 for people and $165,000 for companies per worker.

Trafficking in persons is considered a predicate offence for money laundering. Specifically, it is an offence under Australian law to deal with money or property if these are proceeds of crime, or if these could become instruments of a crime, where the crime involved is a Commonwealth indictable offence (Criminal Code, Part 10.2). Most of the trafficking offences listed in the Criminal Code are indictable offences (except the offence of 'debt bondage', which attracts a penalty of less than 12 months imprisonment, unless there are circumstances of aggravation).

In addition to federal anti-trafficking laws, all jurisdictions have a range of offence provisions to cover related crimes, such as assault, sexual assault, forced prostitution, kidnapping and deprivation of liberty. State offence provisions have been used in conjunction with federal offence provisions in at least two trafficking prosecutions in Australia: Tran, Xu & Qi; and Dobie ('Deception' lured sex worker, The Courier Mail, 9 May 2007). The prosecution of state and federal offences may not always proceed at the same time.

Several federal laws support the investigation of trafficking offences. For example, the trafficking offences in the Criminal Code are specifically designated as serious crimes in the Telecommunications (Interception and Access) Act 1979 (Cth). Consequently designated law enforcement agencies, including the AFP, can seek permission to intercept relevant telephone calls and emails for the purposes of investigating trafficking offences. This information can be used as evidence in court. Information obtained through telephone interception has been important evidence in at least one Australian trafficking prosecution (R v Sieders & Yotchomchin [2007] NSWDC 101).

Similarly, the trafficking offences in the Criminal Code are supported by the Proceeds of Crime Act 2002 (Cth). This Act establishes a regime designed to facilitate tracing, restraint and confiscation of the proceeds of crime against certain Commonwealth laws. The Act gives law enforcement various powers in relation to information gathering. For example, the AFP can, in certain circumstances, issue notices to financial institutions seeking information about account transactions. If the matter involves a 'serious offence' (which includes the offences of slavery, sexual servitude and deceptive recruiting for sexual servitude) or money laundering, a judge can issue a monitoring order to require a financial institution to provide information about transactions conducted during a certain period. Ultimately, the regime allows for a court to order the restraint and forfeiture of proceeds of certain crimes. In some circumstances a conviction is required, but in other circumstances a court can require that proceeds be forfeited even without a conviction. All Australian jurisdictions have legislation regarding proceeds of crime.

As trafficking can have a transnational dimension, it is important that Australia's legal structure support international cooperation. Following ratification of the United Nations Trafficking Protocol, Australia's mutual assistance and extradition laws were amended so these regimes are open to any country that is party to the United Nations Convention Against Transnational Organized Crime and the United Nations Trafficking Protocol (see further, Mutual Assistance in Criminal Matters Act 1987 (Cth), Mutual Assistance (Transnational Organised Crime) Regulations 2004 (Cth), Extradition Act 1988 (Cth) and Extradition (Transnational Organised Crime) Regulations 2004 (Cth)). This is in addition to the many bilateral agreements Australia has in relation to mutual assistance and extradition.

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Law enforcement

As trafficking offences fall primarily under federal law, responsibility for investigating trafficking offences lies primarily with the AFP. In 2003, the AFP established the TSETT, a specialist unit responsible for investigating offences related to trafficking in persons, along with other offences related to child sex tourism and online sexual exploitation of children. TSETT comprises an Intelligence team located in Canberra, and Investigation teams located in Sydney and Melbourne.

TSETT investigators are required to undertake the AFP's specialist training program, the Transnational Sexual Exploitation Investigation Program. The program commenced in 2004 and is a three-week residential training program for investigators. The objectives of the program are to:

Develop the knowledge and skills required to successfully conduct complex, sensitive and/or protracted investigations of offences involving sexual exploitation and child sex tourism in a multi-jurisdictional and international environment (information provided by the AFP).

The program focuses on several learning outcomes, including:

• identification of relevant legislation
• identification of relevant best practice investigation procedures
• key issues and considerations in victim-led, reactive investigations of trafficking
• understanding cultural issues that impact on a victim's ability and willingness to become a witness in a trafficking investigation
• displaying sensitivity to cultural issues when conducting interviews
• identifying and demonstrating behavioural interview techniques when dealing with adult victims of human trafficking (information provided by the AFP).

The program includes presentations from NGOs showing different perspectives on trafficking. In the past, this has included presentations from Project Respect, an NGO with a specific focus on trafficking issues; and the Scarlet Alliance, the peak body representing Australian sex worker organisations and projects. DIAC also contributes to the training.

The program was developed primarily to meet the needs of AFP investigators. However, the course is also open to investigators from other police services, including state and territory police services and foreign law enforcement agencies. As at 30 August 2007, 113 investigators had completed the course. This included 79 investigators from the AFP, 20 investigators from the state and territory police (all jurisdictions except Tasmania), one representative from DIAC, and 13 investigators from foreign police services (Table 1).

State and territory law enforcement

In 2006, all Australian police services agreed on the Australian Policing Strategy to Combat Trafficking in Women for Sexual Servitude. This strategy seeks to provide a national framework within which all Australian police services can work on this issue. It recognises that while the AFP has the lead role in investigating trafficking offences, state and territory police also play a major role, supporting multi-jurisdictional investigations and investigating conduct resulting in sexual servitude. They are often also the first to respond to a trafficking situation. Through the Strategy, the police services are working together to achieve a range of objectives, include establishing and maintaining key relationships between agencies in Australia and overseas, developing protocols and procedures for victim protection, and providing training and education for police on victim identification and investigation of trafficking offences.

Immigration

While DIAC does not have a law enforcement role in relation to trafficking in persons, it is responsible for ensuring compliance with immigration laws. As a result of immigration compliance activities, DIAC officers may encounter suspected victims of trafficking.

DIAC has compliance teams in all Australian capital cities that are tasked with monitoring immigration compliance. In Sydney and Melbourne, DIAC's compliance teams focus specifically on trafficking-related issues in the sex industry. According to DIAC, these teams were established following identification of numbers of suspected victims in this industry. The focus mirrors that of the AFP's TSETT units that are also located in these cities.

All compliance officers who undertake fieldwork are provided with training to identify possible indicators of trafficking during compliance activities. If such indicators are detected, all information is referred to the AFP. This is facilitated by a referral protocol between DIAC and the AFP, which clarifies roles, responsibilities and procedures in handling people trafficking matters. Specifically:

• DIAC will refer all indicators of people trafficking to the AFP, and not evaluate or investigate them.
• DIAC will contact the AFP within one hour where indicators of trafficking are detected.
• DIAC will consult with the AFP prior to undertaking any compliance operation involving a premises or person with suspected links to trafficking in persons.
• The AFP will advise DIAC within four to six hours of initial contact whether they will apply for a Bridging F Visa (BFV) for any person of interest (People Trafficking Referral Protocol).

DIAC also has an overseas compliance network, comprising some 31 overseas compliance officers and 22 Airport Liaison Officers in strategic regions. In late 2003, DIAC created the Senior Migration Officer Compliance (Trafficking) (SMOCT) position, located in Bangkok. This position focuses exclusively on trafficking in persons, with the stated purpose of preventing trafficking at its source. The SMOCT vets visa caseloads for fraud that may indicate trafficking in persons, and analyses trends in visa processing including applicants' travel patterns, use of migration agents and the nature of the claims that applicants lodge. In January 2008, two more offshore SMOCT positions were created in the Australian embassies in Manila and Beijing.

Since 2004, DIAC has provided general awareness training to staff on trafficking in persons. This training is delivered mainly to compliance officers and those going to work as part of the overseas network. Trafficking in persons is now a module on the compliance training program within the DIAC College of Immigration with guest speakers from the AFP and Scarlet Alliance.

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People Trafficking Visa Framework

DIAC administers the People Trafficking Visa Framework. Introduced in 2004, the framework consists of a series of steps, starting with the 30-day BFV and potentially ending with a permanent visa. Each step in the framework is described below.

If there are indications that a person is able to assist with an investigation or prosecution of people trafficking offences, the AFP will seek a BFV for the person. A BFV is valid for up to 30 days, during which time the AFP will assess whether a person is able to assist them with an investigation. People on the BFV have access to the federally funded victim support service but they do not have work rights. From commencement of the BFV on 1 January 2004 to 31 December 2007, 81 BFVs were issued relating to 78 people.

Where a person's BFV is about to expire and the visa holder is still required for the purposes of criminal justice, law enforcement agencies can seek a Criminal Justice Stay Certificate. The issue of a Criminal Justice Stay Certificate is a precursor to the grant of a Criminal Justice Stay Visa (CJSV). Suspected victims of trafficking who have been granted a CJSV have work rights. Between 1 January 2004 and 31 December 2007, 62 CJSVs were issued relating to 52 people.

Law enforcement agencies can seek a Witness Protection (Trafficking) Certificate where a person has made a significant contribution to, and cooperated closely with, prosecution of an alleged people trafficker; or there has been an investigation in circumstances where the CDPP has decided not to prosecute. Following the issue of a Witness Protection (Trafficking) Certificate, DIAC assesses whether, because of the assistance they provided, the person would be in danger if they returned to their home country. If this, and health and character requirements are met, the person may be granted a Witness Protection Trafficking (Temporary) Visa for three years. Holders of these visas have work rights. As at 31 December 2007, 14 Witness Protection Trafficking (Temporary) Visas had been issued and several others were being progressed.

The holder of a Witness Protection (Trafficking) Temporary Visa can subsequently be granted a Witness Protection (Trafficking) Permanent Visa. Because an individual is required to be on a temporary visa for two years before a permanent visa will be considered, no permanent visas had been issued as at 31 December 2007.

To date, several suspected victims of trafficking have wanted to return to their home country. Some have agreed to return to Australia to participate in a criminal justice process. Accordingly, it is important that provision is made to allow those willing to participate in investigations and prosecutions to return to Australia. This is facilitated through the Criminal Justice Entry Visa. In the period 1 January 2004 to 31 December 2007, 15 such visas were issued to eight people.

Where there are compelling and compassionate circumstances, a person on a BFV may travel home for short periods and return to Australia to continue accessing the victim support program. All visas in the People Trafficking Visa Framework are available to 'immediate family members' who are in Australia.

Prosecutions

As federal offences, trafficking prosecutions are the responsibility of the CDPP. The CDPP has an office in each capital city and sub-offices in Townsville and Cairns. The CDPP's head office in Canberra is responsible for national coordination and implementation of the legal, policy and practical issues affecting trafficking prosecutions. The CDPP does not have a specific unit tasked with trafficking prosecutions; however, there is an increasing number of prosecutors – particularly in New South Wales, Victoria and Queensland – with experience in prosecuting trafficking cases.

The CDPP has no investigative function, and matters are referred to the CDPP through the AFP and other investigative agencies. However, the CDPP will provide legal advice to the AFP and other investigative agencies at an early stage in an investigation, where appropriate upon request.

CDPP decisions about whether to proceed with a trafficking prosecution are guided by the Commonwealth's Prosecution Policy. In essence, the CDPP must be satisfied that:

• there is a prima facie (at first appearance) case in respect of sufficiency of evidence
• there is a reasonable prospect of conviction
• the prosecution is in the public interest.

The CDPP may ask the AFP to obtain additional evidence during the assessment phase. The CDPP is responsible for deciding which charge or charges should proceed on indictment, and for conducting all aspects of the prosecution.

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Victim support

The Australian Government Office for Women coordinates support for suspected victims of trafficking who are accessing the Support for Victims of People Trafficking Program. The program provides financial and other support to suspected victims of trafficking in Australia who are assisting with criminal investigations and prosecutions. The support provided assists with clients' living expenses and general wellbeing, and includes income support, access to accommodation, medical treatment, basic legal advice, counselling, training and social support.

The program is delivered through a contractor (currently BSIL Southern Edge Training). Clients are allocated an individual case manager through which they have access to a range of support measures available under the victim support program. The program is divided into three phases, reflecting the different phases of the visa system for suspected victims of trafficking. During the initial 30-day period, when suspected victims are on the BFV, clients of the program have access to:

• secure accommodation (approximately $140 to $160 per night)
• a living allowance ($170 per fortnight)
• a food allowance ($170 per fortnight)
• a one-off amount of $310 to purchase essentials such as clothing and toiletries
• health care services including counselling
• legal services (a maximum of three appointments per client are available throughout the program).

Suspected victims of trafficking who are willing and able to assist with an investigation or prosecution have access to Phase Two of the program (this phase corresponds to the grant of a Criminal Justice Stay Visa). Support during Phase Two includes:

• special benefit (up to $424.30 per fortnight), rent assistance (up to $104 per fortnight) and a health care card administered by Centrelink (if they meet eligibility requirements)
• assistance with securing longer-term accommodation (provision for bond and two weeks rent in advance, refundable to the Commonwealth)
• a one-off amount of up to $750 for purchasing essential furniture for long-term accommodation
• access to the Medicare Benefits Scheme and the Pharmaceutical Benefits Scheme
• access to legal services (a maximum of three appointments per client throughout both phases of support)
• access to employment and training if desired, and to social support (including English language training, budgeting skills, counselling) and vocational guidance where appropriate.

From 1 July 2007, a new Phase Three of the victim support program is available to suspected victims of trafficking who have left Australia but who return as witnesses. They are provided with secure accommodation, living allowance and food allowance (OfW n.d).

From 20 May 2004 to 31 January 2008, the service had provided support to 88 clients. The majority of clients were Thai women (62); far smaller numbers of clients were from other countries in Asia and Europe.

In October 2006, the Victorian Government announced funding for a state-based support program for victims of trafficking. The program is designed to assist victims of trafficking who need support but are not eligible for the Commonwealth program. This might include, for example, victims of trafficking who do not want to talk to the police, or victims of trafficking who may have talked to the police but have been unable to assist a current investigation. The program includes emergency accommodation and support services.

Managed and implemented by Project Respect, the Victorian project commenced in October 2006 but has been operational since March 2007. The accommodation offered is temporary until permanent accommodation can be found, the aim being to provide shelter to women during times of crisis. Other support offered to women includes English language classes, other educational opportunities, and several social and art-based activities.

Project Respect works in partnership with other organisations to ensure that a full range of legal, medical and social supports is available. Partner organisations include the Refugee and Immigration Legal Centre, the Asylum Seeker Resource Centre, the Red Cross and the Victorian Centres Against Sexual Assault. Project Respect is also looking into setting up protocols with hospitals to manage a two-way referral system (Project Respect 2007).

Context, including regulation of the commercial sex industry in Australia

While recognising that trafficking does not equate to prostitution, the reality is that the majority of trafficking investigations have focused on trafficking in the context of the commercial sex industry. Accordingly, it is relevant to consider both the context and regulation of the commercial sex industry in Australia.

Under the Australian system, regulation of the sex industry is a matter for the states and territories. There has been a growing trend over the past 20 years towards legalisation or decriminalisation of the sex industry. This trend reflects several factors, including changing moral attitudes to sex work, recognition of the need to provide sex workers with access to services such as health services and information about safe-sex practices, and growing support for harm minimisation approaches to the regulation of prostitution.

Throughout the 1980s and early 1990s, several royal commissions focused attention on the opportunities for police corruption that were concurrent with criminalising the sex industry. For example, in 1997 the Wood Royal Commission into the New South Wales Police Service found evidence that there was a 'clear nexus between police corruption and the operation of brothels' (Wood 1997: 13). This finding led the New South Wales Government to reform prostitution laws, and policing practices, during the term of the royal commission. Commissioner Wood noted in his final report of that commission:

In permitting well-run brothels to operate, a potential opportunity for corrupt conduct on the part of police was closed off (Wood 1997: 13).

As a result of this and other royal commissions, vice units in several police services were disbanded.

Currently, the sex industry is legalised in six Australian jurisdictions (Victoria, Queensland, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory). That is, people and/or operators can legally provide commercial sexual services, provided they operate within the regime of registration and/or licensing. Under this system, there is typically a planning approval role for local councils, and there may also be a body established to monitor the grant of licenses. In most cases, this is an administrative body rather than the police.

The sex industry is decriminalised in New South Wales. That is, it is no longer a crime, under certain circumstances, to provide or operate premises that provide commercial sexual services. Local councils may have a role in planning approvals for brothels. The sex industry is still illegal in South Australia, although the laws are rarely enforced.

It is important to note that migrants can work lawfully in the sex industry in certain circumstances. In those jurisdictions where it is possible to provide commercial sexual services legally, any person (including a foreign national) over the age of 18 can lawfully work in the sex industry, provided they hold a visa that permits them to work and they comply with their visa conditions.

According to Scarlet Alliance, sex workers with a 'migrant background' constitute a significant proportion of the total number of people working in the Australian sex industry. For example, in the year to June 2005, the Sex Workers Outreach Project (SWOP) in New South Wales provided nearly 1,000 occasions of service to non-English speaking background sex workers, and visited around 150 workplaces that predominantly employ workers with such backgrounds. SWOP estimates that up to 25 percent of massage parlour sex workers in some areas of New South Wales are of non-English speaking background. These women may be second-generation Australians, permanent residents, migrants or temporary visitors (McMahon 2006).

While exact figures are not known, representatives from Australian sex worker associations note that most migrant or non-English speaking background sex workers are not victims of trafficking. In 2007, a representative from Scarlet Alliance estimated that its member organisations had contact with around five women in the previous year who were seeking information on escaping situations that might be described as involving trafficking (Maria McMahon, interview, 2007).

A well-developed network of NGOs provides health education and support services to workers and operators in the sex industry throughout Australia. These services are generally premised on the assumption that provision of commercial sexual services is a form of work that should be managed, bearing in mind occupational health and safety considerations (see further, Scarlet Alliance (http://www.scarletalliance.org.au). Services range from providing advice and outreach on safe sex practices to providing information about rights and responsibilities, including operating within the law, occupational health, and safety and taxation. Some of these NGOs have, or have had, programs that focused on providing outreach and support to migrant and/or non-English speaking background sex workers. For example, in New South Wales SWOP has a project focused specifically on supporting non-English speaking background sex workers. This project focuses on developing culturally appropriate resources in several community languages on issues including health, wellbeing, legal issues and client education on sexually transmitted infections. Project staff is from non-English speaking backgrounds, which reflect the dominant cultural and language groups found within the Sydney sex industry, namely Thai, South Korean and Chinese.

In Victoria, Project Respect (http://www.projectrespect.org.au) conducts outreach services to women working in the sex industry, particularly where there is a high concentration of women from non-English speaking backgrounds. This includes provision of kits containing information in relevant languages about sexual health, domestic violence, legal aid, housing aid, immigration, gambling, the police and childcare. Project Respect's philosophy differs from many of the NGOs discussed above; its activities are informed by the views that while women are working in the sex industry, they have a right to safety, respect, financial security and support, while also considering that prostitution results from and strengthens structural forms of gender inequality.