52 See US Department of State, Trafficking in Persons Report (US Department of State, 2016), for more information.
53 The CCCIF was originally headed by the Chief of Staff of the Royal Thai Navy, but a restructuring in May 2016 resulted in the Minister of Agriculture and Cooperatives taking charge instead – see Nanuam, W. and Jitcharoenkul, P., “Govt Revamps Illegal Fishing Command Hub” Bangkok Post (26 May 2016).
54 See the Fisheries Act, B.E. 2558 (2015), and the Royal Ordinance on Fisheries, B.E. 2558 (2015).
55 Chuensuksawadi, P., “3 New Laws Push Belated Fishery Reform” Bangkok Post (Bangkok, 4 November 2015).
56 The Ministerial Regulation concerning Labour Protection in Sea Fishery Work, B.E.2557 (2014), entered into force on 30 December 2014.
57 Royal Thai Government, Trafficking in Persons Report 2015: The Royal Thai Government’s Response, January 1 –December 31 2015 (Royal Thai Government, 2016), p. 41.
58 Royal Thai Government, Combating Forced Labor and Trafficking in Persons & Enhancing Supply Chain Transparency in the Fishery Sector: Thailand’s Progress January 2015 –March 2016 (Royal Thai Government, 2016), p. 4.
59 Royal Thai Government, Trafficking in Persons Report 2015 (n.57), pp. 5–6.
60 Reports suggest that the Thai authorities are drafting a Royal Ordinance aimed at strengthening the regulation of brokers and recruitment agencies.
61 See Clause 3 of the Ministerial Regulation concerning Labour Protection in Sea Fishery Work, B.E. 2557 (2014), for a list of LPA provisions applicable to sea fisheries.
62 Thai Civil Law allows for moveable property, including fishing vessels, to be contracted verbally.
63 For an initial assessment on the level of enforcement of recent reforms, see Stride, J., Assessing Government and Business Responses to the Thai Seafood Crisis (The Freedom Fund and Humanity United, 2016). See also, Hodal, K., “Slavery and Trafficking Continue in Thai Fishing Industry, Claim Activists” The Guardian (London, 25 February 2016).
64 EJF, Slavery at Sea (n.10), p. 5.
65 Hodal, K. and Kelly, C., “Trafficked Into Slavery on Thai Trawlers to Catch Food for Prawns” (n.43).
66 Hodal, K., “Slavery and Trafficking Continue in Thai Fishing Industry, Claim Activists” (n.63).
67 Sawitta Lefevre, A. and Thepgumpanat, P., “Thai Fishermen Strike Over New Rules Imposed After EU’s Warning”, Reuters (Bangkok, 1 July 2015).
68 Stride, J., Assessing Government and Business Responses to the Thai Seafood Crisis (n.63), p. 27.
69 See, for example, for a recent contribution to the discourse, Nair, C., “The Developed World Is Missing the Point About Modern Slavery” Time (New York, 20 June 2016).
7
Human trafficking in Australasia
Natalia Szablewska
Introduction
The crime of trafficking in human beings (THB) affects virtually every country in the world, whether as countries of origin, transit, or destination for victims, and in most cases as a combination thereof. The Asia-Pacific region is most affected,1 with an estimated two-thirds of all persons trafficked worldwide for forced labour, sexual exploitation, or forced marriage, being in the region.2 The different forms of THB affect societies across the strata irrespective of age, sex/gender, or education level, and there are further regional differences, including in the patterns and flows of trafficking, which makes combating trafficking a very difficult undertaking. Further, as the example of Australasia shows, there are also differences – and often significant – within one region in the underlying reasons for, and forms of, trafficking that need to be accounted for when developing anti-trafficking programmes and initiatives.
This chapter assesses the current anti-trafficking legal frameworks and policy responses within the Australasian context, and in particular in relation to the three main obligations under the Palermo Protocol,3 i.e. to prevent (THB), to protect (victims of trafficking), and to prosecute (traffickers). The countries addressed are Australia, New Zealand, and the Pacific Islands.4 Despite geographical proximity, some institutional linkages, and further commonalities (e.g. geographical isolation), there is enormous variability, including socio-economic differences, between the countries in the region. There are, therefore, certain practical difficulties in comparing anti-trafficking policies and strategies across the region.
This chapter firstly analyses the relevant policies, legislative regimes, and the current criminal justice responses in Australia, New Zealand, and the Pacific Islands (focusing mainly on Fiji and Papua New Guinea (PNG)), followed by a discussion of regional initiatives to tackle THB. There follows further assessment of what lessons could be learnt from the particular national anti-trafficking policies and regional arrangements in Australasia.
Scaling the problem
The 2014 UN Office on Drugs and Crime (UNODC) Global Report on Trafficking in Persons (Global Report) shows that in the Pacific region the majority of detected victims are women and girls trafficked predominantly for the purpose of forced labour.5 Estimates indicate that within the Pacific region trafficking has been predominantly for the purpose of domestic servitude, sexual exploitation, forced marriage, and other – also ‘mixed’ –forms of forced labour.6 The majority of victims in the region are trafficked either domestically or within the sub-region.
Australia is predominantly a destination country, with victims trafficked mostly from Asia (particularly Thailand, South Korea, and Malaysia).7 Patterns of trafficking in Australia are shaped mainly by its geographical isolation which, coupled with strict immigration and border control policies, means that channels of trafficking utilised elsewhere are not immediately available. The majority of cases involve those who arrived in Australia on valid work, student, or tourist visas to find themselves in a situation of exploitation, including debt bondage. Unskilled workers in general have difficulty in securing a valid work visa in Australia, and thus often find themselves at the mercy of smugglers, or arrive on false documentation to then become controlled by traffickers, who exploit the fact of their illegal entry to pressurise victims and make them less likely to report to the authorities.
From 2004–2009, the Australian Federal Police (AFP) reported 270 cases of alleged trafficking, out of which 58 percent concerned trafficking for the purpose of sexual servitude and 42 percent for labour exploitation.8 By way of comparison, in the 2014–2015 financial year, the AFP received 119 referrals relating to trafficking for assessment (93 of which were accepted for further investigation), 29 percent of which related to sexual exploitation, 28 percent to other forms of labour exploitation, 28 percent to forced marriage, and the remaining 15 percent to other forms of trafficking.9 Despite the various mechanisms introduced to collate data on THB, certain criticisms remain, especially regarding the reliability of some of the data and representativeness of the problem,10 which constitutes a serious barrier to evaluating the effectiveness of the government’s responses and strategies to combat THB.
Collecting data and information on THB elsewhere in the region is even more challenging. New Zealand is a rather special case as the government assesses the experience of transnational THB to be a marginal problem,11 whereas UNODC, in its 2012 Global Report, ranked New Zealand as a ‘medium’ destination country.12 In 2015 the US Department of State identified New Zealand as a destination country for foreign men and women subjected to forced labour and sex trafficking, criticising New Zealand further for failing to adequately identify victims in vulnerable sectors, or within vulnerable groups, as well as for continuing to treat possible forced labour cases as labour violations.13
Assessing the scale of the problem in New Zealand has been problematic also because until the 2015 legislative changes, there was no recognition of internal THB. Such acts would be captured under kidnapping, slavery, or other related offences (discussed below). That is not to say that there have been no instances of THB, with the first cases being reported in 2003.14 Some of the allegations involved foreign men, mainly from Camb
odia, Indonesia, Vietnam, and Thailand, subjected to forced labour while aboard foreign charter vessels in New Zealand waters, which exposed some of the deficiencies in New Zealand’s fisheries management.15
There have been further reports of foreign men and women, including from the Pacific, being placed in exploitative conditions in the agriculture, horticulture, viticulture, or construction industries, as well as domestic service.16 However, the main bone of contention between New Zealand and its critics, mainly the US, in assessing the scale of the problem is in relation to sex work, which is legal in New Zealand. The Government’s position is that there is ‘no link between the sex industry and human trafficking’ in New Zealand.17 Nevertheless, in the latest Trafficking in Persons (TIP) Report, the US Department of State noted that:
[f]oreign women from China, Hong Kong, Taiwan, South Korea, Thailand, and Vietnam are at risk of coercive or forced prostitution. Some international students and temporary visa holders are vulnerable to forced labor or prostitution. A small number of Pacific Islands and New Zealand (often of Maori descent) girls and boys are at risk of sex trafficking in street prostitution … Some children are recruited by other girls or compelled by family members, into prostitution.18
Measuring the scale of the problem in the Pacific Islands countries is even more problematic as no reliable or systematic sources of data exist, which adds to the difficulty in quantifying the crime and developing evidence-based responses to trafficking, which, in turn, has had its consequences for the effectiveness of strategies employed also in the destination countries. However, various sources indicate that the Pacific Islands countries are predominantly countries of origin and/or transit,19 and they are particularly vulnerable to the different forms of THB, especially as they are only at the early stages of developing anti-trafficking legal frameworks and policies to protect victims and prosecute offenders.
A major step in the direction of developing data collection mechanisms came with the Pacific Immigration Directors’ Conference (PIDC)20 in 2003, which revealed the scope of THB in the region. In 2010, the PIDC produced a policy brief on people smuggling and THB, which is designed as an information tool for immigration officers in the region.21 Currently, some of the most comprehensive data on THB in the Pacific region are provided under the TIP reporting process of the US Department of State, which evaluates nearly half of the independent Pacific Islands countries. In the 2015 TIP report, Fiji, Palau, Tonga, and the Federated States of Micronesia (FSM) maintained a Tier 2 ranking from the previous year; the Solomon Islands have been demoted from Tier 2 to ‘Watch List’ for the last three years, and have been now joined by PNG being upgraded to ‘Watch List’ from Tier 3 (listed there since the 2008 report),22 which means that both countries still do not fully comply with the minimum standards for the elimination of THB as set under Section 108 of the US Victims of Trafficking and Violence Protection Act of 200023 and related regulations (TVPA), but are making significant efforts to that effect.
Due to the gaps in data and discrepancies in coverage, there is still limited comprehensive research on THB in the region. One of the first studies on the extent of the problem was the 2011 report by Lindley and Beacroft, which provided an overview of some of the key vulnerabilities and offered a number of recommendations to address them.24 The main identified factors of vulnerability in the region are economic, including poverty and limited employment opportunities,25 the frequent inadequacy of border control mechanisms and law enforcement,26 corruption, weak rule of law,27 but also climate change and natural disasters.28 As in many other developing nations, there has been an increase in labour migration from rural to urban areas, with extended families back home often relying exclusively on the migrants’ wages. In turn, these internal, or between-islands, movements lead to a rise in poverty in urban centres, and unemployment, especially among young people, which creates a fertile environment for different forms of exploitation, including trafficking.
Measuring THB in Australasia remains a considerable challenge, given the frequent lack of national mechanisms to measure the problem adequately and the difficulties in collecting reliable data on trafficking in general. Difficulties in scaling the problem should not, however, distract from the issue at hand, which is that THB scars the lives of many individuals and societies at large, and it poses a significant challenge to both criminal justice and providing effective human rights protection. In that sense, legislative responses are important indicators of the commitment, as well as the capacity, of a country to combat THB.
Anti-trafficking legislation
Australia
Prior to the ratification of the Palermo Protocol by Australia in 2004, and subsequent legislative reforms, the inadequacy of the domestic regulation of the crime of trafficking was revealed during an inquest following the death of a victim of trafficking in a detention centre in Sydney in 2001. The enquiry exposed the ‘lack of understanding of the problem of trafficking and highlighted failure in the Australian legal system to provide justice for the victims of trafficking’,29 which was arguably also evident in the fact that until 2003 Australia’s response to trafficking was the same as to smuggling, which involved simply removing trafficked persons to their country of origin.30 Currently, under the Criminal Code Act 1995 (the Criminal Code) (Cth) Divisions 270 and 271, THB into, out of, and within Australia is illegal, with penalties ranging from four years’ imprisonment for debt bondage to 25 years’ imprisonment for slavery and trafficking in children.
The Australian Government has made considerable efforts to address THB at the national, regional, and international levels. Following the Federal Government announcing an initial AU$ 20 million in funding for anti-trafficking measures, Australia introduced a new anti-trafficking strategy: the National Action Plan to Eradicate Trafficking in Persons (the National Action Plan) in 2004. The National Action Plan followed the definition set out in the Palermo Protocol and adopted an integrated approach or, as it is termed, a ‘whole government approach’, focusing on the various and inter-linked aspects of trafficking, including prevention, detection and investigation, criminal prosecution, and victim support and rehabilitation. This approach requires the different levels of the government, whether federal, state, or local, to cooperate in combating trafficking. Ten years later, in December 2014, the Australian Government launched the second National Action Plan to Combat Human Trafficking and Slavery 2015–19,31 which constitutes Australia’s most recent anti-trafficking and anti-slavery framework. So far, Australia has spent AU$ 150 million on anti-trafficking measures, including a AU$ 50 million commitment to the Australia-Asia Program to Combat Trafficking in Persons (AAPTIP) 2013–2018, and further domestic initiatives ranging from developing legislation criminalising THB, setting up a specialist AFP investigative team, to developing a comprehensive victims’ support programme.
The changes in policy have been accompanied by corresponding legislative reforms. In response to Australia’s international obligations under the Palermo Protocol, the Criminal Code was amended by the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005, adding further offences of trafficking and debt bondage to reflect better the realities of modern forms of THB. This constituted also a shift in the perception of trafficking from viewing it predominantly as a problem relating to the commercial sex industry,32 and the corresponding exploitation for sexual purposes, to include labour exploitation.33 Further legislative amendments to the Criminal Code and the Crimes Act 1914 were introduced in 2013 –by the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 and the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 –providing for new offences of forced marriage and harbouring a victim, stand-alone offences of forced labour and organ trafficking, and further changes to victims’ support and protection programmes.
New Zealand
New Zealand ratified the Palermo Protocol in 2002, but a national Plan of Actio
n to Prevent Trafficking was not introduced until 2009,34 with its primary focus being on prevention as well as protection of ‘the human rights of any identified victims of trafficking and prosecut[ion] [of] any offenders to the full extent of the law’.35 Following the Crimes Amendment Act 2002’s changes to the Crimes Act 1961, Section 98D was added, defining THB as the use of coercion or deception to arrange or attempt to arrange the entry of a person into New Zealand or another State, thus requiring an international border crossing.36 Consequently, claims for domestic forced labour or exploitation of others needed to be pursued under other legislation, including the Immigration Act 2009 (under offences of employing or exploiting persons not entitled to work in New Zealand), the Wages Protection Act 1983 (prohibiting fraudulent employment and recruitment practices), or the Prostitution Reform Act 2003 (criminalising inducing or compelling a person to provide commercial sexual services), which carry lesser penalties.
Further, New Zealand legislation did not prescribe the purpose – that is, ‘exploitation’ as provided under the Palermo Protocol – rather, it treated it as an ‘aggravating factor’, but not crucial for the commission of the act to be classed as THB. Since November 2015, under the Crimes Amendment Act 201537 (replacing Section 98D of the Crimes Act 1961), the trafficking provision now covers trafficking within New Zealand for the purpose of ‘exploiting or facilitating the exploitation of the person’, thus making the legislation more compliant with New Zealand’s international obligations.
The Pacific Islands
Most Pacific Islands countries are parties to the Palermo Protocol, except Fiji, PNG, and the Solomon Islands, and in recent years, strategies to tackle trafficking and measures to address the problem have been progressively developed. Some have introduced specific legislation to address THB, for example Palau,38 but most others rely on existing provisions included in criminal laws where trafficking is not recognised as a separate crime.39 Samoa, for example, still does not have a specific offence of trafficking in persons, and for the purpose of the most recent reporting to the UNODC did not identify any cases of THB.40 In 2014, the US Government announced US$ 1 million to support the Solomon Islands and PNG in fighting THB, and since 2009 IOM has been supporting the Solomon Islands in drafting a legal framework that would effectively protect the victims and witnesses of THB and human smuggling, and has been assisting other relevant agencies in developing a National Action Plan to improve the country’s capacity in border management.
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