In Fiji, which is classified as a source country for women and children subjected to sex trafficking and forced labour, as well as a transit and destination country for Asian men and women subjected to forced labour and forced prostitution,41 a comprehensive anti-trafficking law was enacted in 2009. Division 6 of the Crimes Decree 2009 defines THB in line with the Palermo Protocol as organising or facilitating the entry, or proposed entry, or receipt of another person into Fiji (or within Fiji), with the use of force or threats, or to obtain another person’s compliance with respect to that entry or proposed entry. It also prescribes penalties of up to 25 years’ imprisonment and fines for committing an indictable offence of trafficking in persons, whether in relation to the entry, proposed entry, or the exit, proposed exit, to/from, or transportation within Fiji. The relevant legislation is inclusive as far as the different forms of THB are concerned, but that in itself might not be enough to prevent the crime from burgeoning. Other measures might inadvertently weaken prevention; for example, the law relating to immigration, allowing nationals of 132 countries to enter Fiji without a visa, combined with Fiji’s geographical location, is often perceived as encouraging its use as a transit area for trafficking.42
PNG is predominantly a source and destination country for men, women, and children subjected to sex trafficking and forced labour.43 The criminal legislation was amended by the Criminal Code (Amendment) Act 2013 to insert Division 1A on trafficking in persons, which defines THB as recruiting, transporting, transferring, concealing, harbouring, or receiving any person by various means, including threat or the abuse of a relationship of trust or of a position of vulnerability with an intention to exploit that person. It prescribes a penalty of imprisonment of up to 20 years, or 25 years in the case of trafficking of children (Section 208C(2)), and potential life imprisonment if the victim is subjected to ‘circumstances that result in, or are likely to result in, the death of that person’ (Section 208C(3)). There are further provisions on assistance to, and protection of, victims of trafficking, which largely comply with the minimum international and regional standards. However, despite efforts so far and legislative reforms, PNG lacked until recently a National Action Plan to combat trafficking. In response to these shortcomings, IOM assisted the PNG Department of Justice and Attorney General and the PNG National Human Trafficking Committee in the development of a National Action Plan on Trafficking in Persons,44 which was finalised in January 2015.
PNG has also made a commitment to improve data collection mechanisms as well as monitoring of irregular migration into PNG,45 which was a response to a survey on people smuggling and trafficking in persons conducted in February–May 2011 in four provinces, commissioned by the Department of Justice and Attorney General in partnership with IOM.46 The survey found that in 2011, before the enactment of the legislation specifically criminalising THB and people smuggling, ‘under PNG’s existing legislation, victims of trafficking and smuggled persons [were] at risk for prosecution and further psychological and physical abuse and trauma’, and it ‘further [did] not target perpetrators of trafficking and smuggling’.47 This highlighted that when there is no specific anti-trafficking legislation in place, there can be significant obstacles in applying the existing criminal or immigration laws to cases of trafficking or smuggling if they do not provide for identification of victims of trafficking or smuggled persons; in consequence, this weakens the ability of the authorities to protect the victims of trafficking and to prosecute the perpetrators.
Criminal justice responses to trafficking
There is a positive correlation between effective legislation and regulation of offences and their effective investigation and prosecution. It has now been widely accepted that criminalising trafficking offences is not sufficient in itself to halt the problem unless it is coupled with systematic investigation and prosecution of trafficking offences.48 The obligation to prosecute traffickers goes hand-in-hand with protection and support for victims of trafficking. However, as identified by Cho and Vadlamannati, based on their quantitative research employing panel data from 147 countries during the period 2001–2009, ‘the [Palermo] Protocol has been more effective in ensuring national security via border control, as reflected in prevention policy, rather than human rights protection of victims and punishment of violators’.49 Thus, while more than 90 percent of countries in the region have introduced legislation criminalising trafficking, implementation often falls short.
The 2014 UNODC Global Report shows that in the area of criminal justice response only four out of ten countries covered in the report recorded ten or more convictions annually, with nearly 15 percent having no convictions at all.50 This shows a significant gap between the estimated number of victims and identified, prosecuted, and convicted offenders. The number of cases and successful convictions has remained stable in recent years, and fewer countries are reporting increases in convictions, which continue to remain very low.51
Since Divisions 270 and 271 of the Criminal Code were introduced in Australia, some 17 individuals have been convicted of THB or slavery-related offences, and since 30 June 2014 a number of THB-related and slavery matters have been before the courts, with the majority of cases involving labour exploitation and one relating to sexual exploitation.52 In 2008, the High Court handed down its landmark decision in The Queen v. Wei Tang,53 which has been viewed as instrumental in assisting courts in interpreting the meaning of ‘slavery’, ‘human trafficking’, and ‘forced labour’ in Australia, in particular to ensure that interpretation of the Criminal Code is in conformity with, and reflective of, the relevant international law. More recently, in March 2015, the Federal Circuit Court handed down its decision in the case of Ram v. D&D Indian Fine Food Pty Ltd & Anor,54 where the owner of a restaurant was found guilty of employment practices akin to slavery by abusing the Temporary Work (Skilled) (Subclass 457) visa programme by bringing an Indian national to Australia in 2007 to be a cook in his restaurant in Sydney. The victim worked seven days a week, 12 hours a day, for more than 16 months without adequate pay, superannuation, or annual leave. The presiding judge ordered the owner of the restaurant to pay the withheld wages, other entitlements, and interest amounting to almost AU$ 200,000 after the defendant pleaded guilty to contravening Section 271(2) (1B) of the Criminal Code relating to the offence of trafficking in persons when the person is found guilty of being ‘reckless as to whether the other person will be exploited’ after their entry or receipt into Australia.
In New Zealand, there have been only a handful of cases relating to THB,55 one going back to the early 1990s (R v. Decha-Iamsakun)56 and one more recently (R v. B)57 in 2010. But it was only at the end of 2014 that the first major case commenced at the Nelson District Court, involving three men who allegedly trafficked 18 Indian nationals,58 but eventually were found not guilty of the lead charges under the Crimes Act 1961 and were convicted only of lesser charges of making false statements to Immigration New Zealand officials.59 The dearth of cases, successful or otherwise, could be partially explained by the fact that until recently New Zealand’s legislation recognised only transnational trafficking, and even though charges could be brought under other indictable offences with regard to victims who did not cross New Zealand’s international borders, it was not as effective a judicial avenue, leading to a lack of clarity regarding under which charges alleged trafficking cases should be brought.60 Moreover, convicting traffickers under anti-trafficking legislation is also important for documenting the extent of the problem in New Zealand, and thus even if offenders might have been convicted of other offences, it did not facilitate the monitoring of how THB is planned and executed in the particular context of New Zealand. However, along with the legislative changes and the further consolidation of the relevant regulations, the capacity of the criminal justice system to respond to THB in New Zealand should improve.
As for the other countries in the region, in Fiji in 2014 the anti-trafficking unit investigated two cases, which was a decline from se
ven investigations the previous year and nine investigations in 2012.61 The first two successful prosecutions, relating to international trafficking, were brought under Sections 112(3) and 112(5) of the Crimes Decree 2009, respectively,62 and in the more recent case, involving two teenaged girls, the High Court found the accused guilty of domestic trafficking in children.63 In PNG there have been no successful prosecutions under the new law (the Criminal Code Amendment 2013), and only two cases were reported in 2013, one relating to labour trafficking and one to ‘deprivation of liberty’, neither ending in conviction.64 In PNG, in most trafficking-related cases, prosecutions have been referred to village courts, which administer customary law and thus result in payment of restitution to the victims of trafficking but not in imprisonment of the perpetrators.65
A review of the different approaches to THB across Australasia indicates that there is a need for an integrated and cost-effective approach to investigating and prosecuting trafficking as a central element of national responses. Despite an increase in the number of investigations and prosecutions of traffickers, much more work is required to end the traffickers’ impunity.
Fulfilling the obligation to offer protection to victims of trafficking
Despite developments, including laws criminalising THB, the prosecution of traffickers remains largely inadequate; furthermore, the majority of victims of trafficking never receive assistance. As noted earlier, the numbers of victims remain estimates also because, as further anecdotal evidence suggests, victims are largely reluctant to become involved in prosecutions. Also, domestic assistance schemes for victims of trafficking are often inadequate or, indeed, can add to the complexity as to when the person can be offered assistance and support. The Australian victims’ assistance programme exemplifies how complex this can be.
In Australia, a comprehensive system of assistance is available, offered under the Support for Trafficked People Program (STPP), as part of the government’s Anti-Trafficking Strategy,66 but the level of assistance depends on the degree of the person’s participation in the criminal justice process. The rationale for that conditionality stems from the fact that under Australian domestic law THB is recognised as a crime to be prosecuted and punished under the criminal justice system, thus victim protection is part of that criminal justice response rather than being offered on humanitarian grounds. The STPP has various streams under which the trafficked person might apply for support and assistance. Under the Assessment Stream, an initial 45-day support is offered irrespective of whether victims assist in the investigation and/or prosecution of a trafficking-related offence; if they do not hold a valid visa, they can be offered a Bridging F visa for the 45-day period.67 For victims who are willing but not able to participate in the criminal justice process because of trauma or health issues, further assistance can be provided on a case-by-case basis along with a second Bridging F visa for up to 45 days (the Extended Assessment Stream). Those participating under the Justice Support Stream, that is, a victim contributing to an investigation or prosecution, are provided with the most extensive assistance, including special benefits, rent assistance, and a health care card. There is also specific assistance under the Temporary Trial Support Stream granted to those who return temporarily to Australia to participate in a trial. Thus, as part of this framework, only those who cooperate with the prosecution and law enforcement agencies are provided with long-term support and assistance.
A further challenge to providing effective protection of victims is that the Department of Families, Housing, Community Services and Indigenous Affairs accepts tenders for services for victims of trafficking. From 2004–2009 the delivery of the STPP was provided by a private contractor (Southern Edge Training), with the Australian Red Cross taking over the delivery of the programme in March 2009. Victim services are thus delivered by bodies external to the government, which brings certain consequences, including the often lack of coordinated responses between different government agencies, private organisations, and the wider public, as those providing such services are bound by confidentiality agreements.
In comparison, in New Zealand victims of crime, including THB, have access to diverse services, including medical care, legal aid, and counselling, and victims of trafficking can be provided with an extension for up to 12 months on temporary residence and can be eligible for publicly funded health and disability services while their case is ongoing.68 In the rest of the Pacific region, victims’ support programmes are only at the early stages of development. In PNG, for example, the new legislation criminalising THB and the recently released National Action Plan pave the way for further developments in this area; in the meantime, support services for victims are provided by IOM, until the national programme is fully operational.
The Australian model of the victims’ support programme is one of the most comprehensive amongst the countries in the region, and beyond, but it is not without problems, and there are also practical limitations as to what extent this model could be followed elsewhere. Moreover, despite the relatively low level of cross-border trafficking to Australia, the Australian system has been slow in recognising the rights of trafficked persons, and the services offered to them remain somewhat limited and heavily conditional on their ability to provide evidence against their traffickers, which is not always feasible.
There is no easy solution to managing the (often contradictory) needs of victims of trafficking with the rationales for national policies to prevent THB, but from a practical stand-point one of the key measures in developing effective anti-trafficking responses is to ensure victim-sensitive responses, as ‘addressing the social, educational, psychological and other needs of victims as soon as they are discovered may ultimately prove less costly than dealing with them at a later stage’.69 Further, anti-trafficking policies should align with victims’ human rights, as otherwise they might lead to increasing the vulnerability of certain groups and individuals to THB, hence rendering these policies counterproductive. There is still room for improvement in offering protection and support to victims of trafficking in the region, and some of the measures require cross-national cooperation in that regard.
Regional arrangements in Australasia
Australasia remains a sub-region of more immigrants entering the region than leaving, mainly due to Australia and New Zealand being attractive destination economies. The temporary work schemes for Pacific Islanders, such as the Seasonal Worker Programme in Australia,70 or since 2006 the Recognised Seasonal Employer Scheme in New Zealand,71 have increased the number of temporary migrant workers, especially in New Zealand, which remains the leading destination for migrants from the Pacific Islands countries.72 Such schemes create opportunities for legitimate and thus safer routes for labour migration, but increasing migratory movements due to these arrangements might, in consequence, also facilitate transnational crime.73
The attempts to combat THB at the regional level gained momentum in 2002 with the Bali Process on People Smuggling, Trafficking and Related Transnational Crime (the Bali Process). Australia along with Indonesia co-chair the Bali Process, and since its inception 48 members, including the UNHCR, IOM, UNODC, and a number of other participating countries and agencies, have participated in this voluntary forum. The aim of the programme is wide and encompasses the development of more effective information and intelligence sharing, assistance to adopt best practices, and enhanced cooperation to tackle the root causes of irregular migration.74 In 2011, the Bali Process Ministers established a non-binding Regional Cooperation Framework (RCF) aimed at developing practical arrangements in the coordination of matters in the region relating to trafficking of persons, people smuggling, and related transnational crime. In 2012, the Regional Support Office of the Bali Process was set up to ‘support and strengthen practical cooperation on refugee protection and international migration; inter alia human trafficking and smuggling, border management and other components of migration management … in the Asia-Pacific region’.75 Under the Bali Process, policy guid
es on criminalising people smuggling and trafficking in persons were developed in 2014.76 These guides are intended for the relevant domestic agencies to utilise them as training and awareness-raising tools for policy, law enforcement, and immigration officials. In a similar vein, in 2015, policy guides on identification and protection of victims of trafficking were adopted to assist policy makers and practitioners in coordinating efforts between countries in the region, including in criminal justice processes.77 To further facilitate promotion of more effective and coordinated law and justice responses to THB, the Bali Process Working Group on Trafficking in Persons became operational in 2015 and introduced its ‘Forward Work Plan 2015–17’, focusing, inter alia, on ‘[p]rovid[ing] training to build capacity of relevant officials to respond to trafficking in persons’ and ‘[s]trengthen[ing] regional coordination and collaboration’ among Bali Process members.78
There have been further initiatives in the region, beyond the Bali Process, addressing people smuggling, THB, and irregular migration. These include the aforementioned AAPTIP as well as other initiatives supported by the Australian Government, namely the Tripartite Action to Protect Migrants from Labour Exploitation (TRIANGLE I) 2010–15 and the Tripartite Action to Enhance the Contribution of Labour Migration to Growth and Development in ASEAN (TRIANGLE II) 2015–25, developed in partnership with the ILO and involving all ASEAN Member States, as well as the UN-Women and ILO project on the ‘Prevention of Exploitation of Women Migrant Workers in ASEAN 2015–16’. In November 2015, ASEAN adopted the Convention against Trafficking in Persons, Especially Women and Children (ACTIP), and the accompanying ASEAN Plan of Action. This recognises THB as a regional problem requiring a regional solution. These developments are relevant to other members of the Bali Process – with all ASEAN States79 involved in the Bali Process – through facilitating and influencing the various cross-national initiatives relating to THB across the wider region, including Australasia.
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