KASAMA Vol. 16 No. 2 / April-May-June 2002 / Solidarity Philippines Australia Network
Jammed: Trafficked Women in Australia
STOP THE TRAFFIC
RMIT, Melbourne, Australia - 25 February 2002
The following are extracts from a paper based on the presentation given by GEORGINA COSTELLO, Refugee Team, Amnesty International
In September 2001, a young Vietnamese woman died in Villawood Immigration Detention Centre in Sydney. She is believed to have been brought to Australia when she was 12 years old on a family reunion migration application which was possibly fraudulent. It is understood that upon arrival in Australia she was placed in a brothel and that she worked continuously as a prostitute until her incarceration in Villawood after authorities detected her as an "illegal immigrant". There was evidence of drug use on her body, with injection scars on both arms. She was locked in solitary confinement in Villawood. Her dead body was found lying face down in a pool of vomit.
In January 2002, there was a second death of a trafficked Vietnamese woman in Villawood. This woman had made at least one previous suicide attempt. It is believed that she died in hospital from injuries caused when she jumped out of a window from the first floor of the women's dormitory. To date, there has been no coronial inquest into the deaths.
When asked about these deaths and the possibility of giving trafficked women permanent residency in return for testifying against people traffickers, a spokesman for the Minister for Immigration, Mr Phillip Ruddock, said that if this were done "eventually you would find instead of people claiming to be refugees, they would claim to be prostitutes who fear going home" and besides "while there were genuine cases, most will not provide you with the level of co-operation that will get prosecutions of the Mr Bigs. They are afraid of reprisals." (1)
Women who are trafficked have much in common with women who seek asylum as refugees. Because asylum seekers are vulnerable, they can be forced to rely on, or be abducted by, traffickers. …Trafficked women may also have grounds to seek asylum because they have suffered gender based persecution. Refugee and asylum seeker arrivals have been politicised, which has lead to the criminalisation of illegal migration at the expense of approaches which would protect victims of trafficking. This politicisation has decreased the willingness of governments to attempt to solve the problem of people trafficking and caused a consequent failure to protect the victims of the international crime of trafficking. Although both refugees and trafficked women may have minimal control over their choice to travel to Australia, as a group they are subject to detention, stigmatisation and possible expulsion because they have broken Australia's border laws.
Trafficking, smuggling, refugees and asylum seekers: some important distinctions
Trafficking has been defined in the UN Trafficking Protocol as trapping a victim by means of threats, force or other forms of coercion or by abuse of vulnerability and transporting them for the purpose of exploitation. Exploitation includes such treatment as prostitution, slavery or the removal of organs. (2) Trafficking is to be contrasted with "smuggling" which involves transferring someone across a border for profit, in other words, procurement for financial or material benefit of the illegal entry of a person into a state of which the person smuggled is not a national or permanent resident. (3)
Smuggling does not necessarily entail the abuse of a smuggled person's human rights, indeed, smuggling encompasses the actions of Oscar Schindler or of some of the sailors who smuggled Jewish people to safety during the holocaust. Someone can smuggle someone across a border without abusing the smuggled person's human rights.
A trafficker, on the other hand, by definition exploits the victim of trafficking. This is not to deny the involvement of deplorable international crime rackets in smuggling, or the substitutability of the crimes of arms dealing, money laundering, narcotics trade, smuggling and trafficking as lucrative activities engaged in by the same persons. However, trafficking "specifically targets the trafficked person as an object of exploitation and inherently involves a violation of human rights" (4) and is a human rights problem serious enough to warrant being addressed specifically.
Importantly, the smuggling relationship is a finite relationship, ending once the smuggled person has paid the money and taken the journey. After arrival in the country of destination, the smuggled person typically owes no further debt or servitude to the smuggler. At its root, trafficking encompasses the continual exploitation of the victim in an attempt to pay off an often insurmountable financial amount or service due.
There is no definition of "trafficking" in Australian legislation.(5) The absence of such a definition and the absence of a specific crime of trafficking in Australian law illustrates a lack of willingness (or interest) to respond to the problem of trafficking. An examination of Australian government responses to trafficking illustrates that the Australian Government focuses on smuggling rather than trafficking.(6) For example, at present there is no Australian team or officer dedicated to the investigation of people trafficking or slavery and sexual servitude crimes.(7) There is, according to Adrian McKnight of the Australian Federal Police (AFP), a combined AFP/DIMIA (Department of Immigration and Multicultural and Indigenous Affairs) people smuggling team which, he claims, is concerned with issues of illegal immigration, including people trafficking and sexual slavery (8), but trafficking and sexual slavery are, at best, subsets of the more high profile and more highly politicised issue of people smuggling.
Trafficking of women is a serious human rights problem and according to Senator Ian MacDonald's second reading speech for the recently introduced Commonwealth sexual slavery laws, "intelligence from Australian and overseas sources confirms that the problem is a significant one for Australia".(9)
One example of the occurrence of trafficking in Australia involved Mr Gary Glazner and his associates who brought 20 to 40 Thai women to Australia to work as prostitutes. The women were made to work in oppressive conditions: they were required to perform 500 "sexual services" of half an hour before they would receive any financial payment. (10) Mr Glazner was convicted under the "Prostitution Control Act" for operating an unregistered brothel, but the lack of specific anti-trafficking laws at the time of his case meant that he was not prosecuted for his involvement in trafficking. Despite the scale of the problem, there has not been one prosecution of a trafficker under the Commonwealth sexual slavery laws which were purportedly introduced to address trafficking. Not only has Australia chosen not to sign or ratify the UN Trafficking Protocol, Australia has failed to utilise its own sexual slavery laws: not one prosecution under these laws has taken place and in some states, including Victoria, equivalent state laws prohibiting state based sexual slavery have not been introduced.
The legal link between trafficked and refugee women
Most refugees and asylum seekers are smuggled rather than trafficked on their journey, (11) however, for various reasons, refugees and asylum seekers can become victims of trafficking. "Refugee" and "asylum seeker" are both terms with specific domestic and international legal definitions. According to the 1958 international Refugee Convention, which forms the basis of the definition of "refugee" in both international law and in Australian domestic law,(12) a refugee is someone who is outside their country of origin and is unwilling or unable to return to their country of origin because they have a well-founded fear of persecution on the grounds of political opinion, membership of a social group, ethnicity, race or religion. An "asylum seeker" is someone who seeks protection from a state on the basis that they claim to be a refugee. Neither the Refugee Convention nor Australian legislation which implements parts of the Refugee Convention,(13) include gender as a ground of persecution, which makes it difficult to successfully claim to be a refugee on the basis of suffering gender based persecution.
…Because gender is not a ground of persecution under the Refugee Convention, lawyers acting for asylum seekers seeking refugee status on the basis of gender persecution must argue that the woman is a member of a particular social group. In the case of Christina (not her real name) Amnesty International launched a letter writing campaign directed to the Australian government asking it to give Christina permission to stay in Australia. Christina was brought to Australia by a Columbian prostitution syndicate. She alleged that she was told that she would be employed as a cleaner. When she escaped from her situation of forced prostitution and violence, she applied for refugee status on the grounds of being a refugee but was rejected by the Australian Refugee Review Tribunal. Although the Tribunal accepted her evidence that the prostitution syndicate had made threats to kill or injure her or her family if she refused to work as a prostitute in Australia or if she tried to return to Columbia, the Tribunal found that this persecution was individual rather than by virtue of her membership of a particular social group. The Tribunal was not satisfied that the characteristics of vulnerability, youth and gender, whether considered together or separately, distinguished "vulnerable young Columbian women" or "young women" from the rest of the community as a social group. Amnesty International has lost contact with Christina.
While it may be possible to be cynical about cases such as Christina's, the specific context of the victims of people trafficking must not be forgotten. For the most part they are usually young, vulnerable and poorly educated women already living in circumstances of considerable hardship. Claims of better treatment or renumerated work abroad, especially in countries like Australia, must appear incredibly attractive.
…Even if a refugee determination body is convinced by the argument that a woman is fleeing persecution on a convention ground, women face a further hurdle because decision makers can take the view that the woman claiming asylum is fleeing persecution by an individual rather than fleeing state sanctioned persecution. An example of this kind of approach can be found in the judgment of Justice Callinan of the High Court of Australia, who, in April this year, handed down a dissenting judgment rejecting the appeal of a woman seeking asylum on the basis of domestic violence she had suffered in Pakistan on the basis that "the situation in which the first respondent found herself was a situation which arose from the personal characteristics of her relationship with her husband and his family, albeit that her vulnerability as a woman in an abusive relationship may have contributed to the reluctance of the police to assist her". (14)
Convergence: refugees and asylum seekers caught in traffic
Anne Gallagher, Special Adviser on Trafficking to the United Nations Commissioner for Human Rights, has stated that violations of the human rights of women increase their vulnerability to exploitation, including practices such as human trafficking. (15) Among the difficulties faced by female refugees and asylum seekers when they flee persecution are the complications of leaving their home, the dangers such as rape faced along the way, the risk of being turned away immediately at the point of entry to a safe country and the problems of detention upon arrival in destination countries.(16) Trafficking is about the exploitation of vulnerability, traffickers target vulnerable groups, and refugees and asylum seekers are an obvious target. Eighty per cent of the world's refugees and asylum seekers are women (17) and the International Organisation for Migration has substantial evidence of the abduction of refugees and asylum seekers from refugee camps by people traffickers.(18) …
Commodity and criminal: policy approaches to trafficked women
The UN Special Rapporteur on Violence Against Women commented in relation to trafficked women that:
"Women find themselves living under slavery-like conditions, not only as prostitutes, but also as domestic and factory workers, and in forced marriages. Employers often illegally confine these women, confiscate their passports and identification, and force them to work excessive hours and under inhuman conditions. They often beat and rape them, and withhold their wages until the 'debt' of their recruitment is paid off. Meanwhile the threat of reprisals and the lack of identity papers prevent many of them from being able to escape the abuse."(19)
When asked about the negative impact of Australian immigration detention centres on children's mental health, the Minister for Immigration said the fault lay not with the detention system but with the "people who bring children to Australia without lawful authority" and that detention "is a situation in which they have placed themselves".(20) These statements reflect an approach which fails to acknowledge that many of the people who end up in Australia's immigration detention centres are victims of circumstances well beyond their control - many detainees are forced migrants, rather than people who have chosen to leave their country of origin and come to Australia of free will. A trafficked female asylum seeker, in particular, has little control over her travel movements.
…Demand for the labour of trafficked women in destination countries provides a profitable market for traffickers. In the United States and much of Europe, a substantial undocumented workforce continues to do the low-skill, low-wage work that domestic populations shun.(21) In Australia, there is "demand… for cheap non-regularised labour by employers wanting to maximise profits". (22) The threat of being reported to immigration authorities makes irregular immigrants exploitable and compliant.
In Victoria, where prostitution has been decriminalised, there is a strong demand for sex labour. Victims of trafficking, even more acutely than other groups of forced migrants, are not empowered to exercise choices about their lives; this is likely to make them compliant to their exploiters, which is particularly useful to brothel operators in the prostitution industry, as they may be more easy compelled (or less empowered to resist) engaging in sexual practices not agreed to by sex workers who live in Australia legally. Demand for trafficked women from 'other' countries could also be the product of desire for 'exotic' women. As cited by Kathleen Maltzahn, there is evidence that some Australian men prefer Asian prostitutes over women of their own ethnicity.(23) …
The political choice by Western governments to get tough on borders, as illustrated by one of the main election slogans of the winning conservative party in the November 2001 Australian election, "We control who comes into our borders" has been at the expense of people whose migration was forced by circumstances beyond their control. Stigmatised as "illegals", "aliens" and "queue jumpers", those who arrive in Australia without permission are treated as criminals as a matter of policy, rather than as people who may be in need of protection. …When DIMIA officers find people without valid visas, it seems, on the basis of the examples given at the beginning of this paper, that their approach is to apprehend them and 'remove' them from Australia, usually without finding out how they got here, without linking them with support services in the country they are returned to or attempting to seek their help in prosecuting trafficking rings. (24)
The Government's zealous enthusiasm to control Australia's borders has been at the expense of a humane approach to victims of the international crime of trafficking. Lumped in with the rest of the "unauthorised arrivals", trafficked women have been detained and expelled consistent with the Government's deterrence approach (let's make it tough for those who come to deter potential illegal immigrants). Given that trafficked women may have very little choice in the nature of their journey or their destination, an approach which inflicts upon them the harshness of the deterrence approach seems to lack both logic and morality.
Ways out of the Jam?
Trafficked women are trapped in a demand and supply paradigm which reduces their choice about the place they live and increases their vulnerability to people traffickers. On their arrival in destination countries, their subordination is likely to continue, and if they are detected, they are expelled from the country.
One way to focus on the needs of victims of trafficking would be to create a new visa class which would permit victims of trafficking to stay in Australia while they assist authorities to gather evidence against traffickers. Such a visa could provide access to counselling and other social services to enable the trafficked woman to deal with traumatic experiences already suffered and to either settle into Australian community or return to their country of origin. While deportation of a trafficked woman may be a short term solution to a breach of Australia's border laws, this response must be tempered by the need to respond to the human rights abuse suffered by the trafficked woman in order to prevent revictimisation.
An important obligation on states contained in Article 9 of the UN Trafficking Protocol (which Australia has not signed or ratified) is the obligation to make efforts to protect victims of trafficking from revictimisation. In keeping with the spirit of the Palermo trafficking protocol, many European countries have endorsed the use of a specific visa for victims of trafficking. Such measures have been implemented in legislation in Belgium, Italy, the Netherlands and Spain and is currently being introduced in France and Greece. It is unsurprising that the Australian Government has not sought to pursue a similar innovation: it might undermine the Government's popular deterrence approach to "illegal immigrants". Until the issue of trafficking is addressed as a human rights problem rather than characterised as a problem of illegal migration, it is unlikely that the victims of trafficking will be protected. Instead, like dolphins caught in a fishing net, victims of trafficking will be collaterally damaged by the Government's policies towards asylum seekers. Criminalised and commodified, trafficked women are jammed in circumstances they can do little to avoid and their trauma and vulnerability are likely to be compounded by Australian measures such as detention and expulsion of "illegal immigrants".
1. A Horin "Wrong to treat sex slaves as illegal immigrants, says human rights campaigner" Sydney Morning Herald 19 February 2002.
2. Article 3, the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ("Trafficking Protocol")
3. Article 3, the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air ("Smuggling Protocol").
4. International Organisation for Migration "Victims of Trafficking in the Balkans" 2001.
5. Section 232A of the Migration Act 1958 (Cth) includes a definition of smuggling that does not require the receipt of financial or material benefit and could therefore arguably extend to a father who organises unauthorised passage to Australia for his children.
6. R Tailby "Organised Crime and People Smuggling/ Trafficking to Australia" in Australian Institute of Criminology trends and issues in crime and criminal justice, May 2001, 1.
7. Ibid, 3.
8. Federal Agent Adrian McKnight, Director, Operations Support Southern, Australian Federal Police, provided this information to attendees at the "Stop the Traffic" conference held in Melbourne on 25 February 2002.
9. Sen. Ian Macdonald (Queensland-Minister for Regional Services, Territories and Local Government), Second Reading Speech for the Criminal Code Amendment (Slavery and Sexual Servitude) Bill 1999: 24 March 1999.
10. DPP v Gary Glazner  VSCA 204.
11. For strong evidence about the tendency of refugees and asylum seekers to use smugglers rather than traffickers, see Morrison, J (1998) "The Cost of Survival: the trafficking of refugees to the UK", The British Refugee Council, London and "The trafficking and smuggling of refugees: the end game in European asylum policy?" Report commissioned by UNHCR's policy unit, page 11.
12. Migration Act 1958 (Cth)
13. The massive watering down of Australia's international refugee protection obligations is not the subject of this paper, see Costello and Bhuta "Global Apartheid - Controlling Borders, Stigmatising Refugees and Fortifying Globalisation" Arena Magazine No 54, August, September 2001.
14. Minister for Immigration and Multicultural Affairs v Khawar  HCA 14 (11 April 2002). Justice Callinan was in the minority in this decision, four judges of the High Court held that the failure of Pakistani authorities to assist Ms Khawar when she went to them with her genuine fears of persecution amounted to a failure of the State to protect women from gender based persecution.
15. A Gallagher "The Role of National Institutions in Advancing the Human Rights of Women - A Case Study on the Trafficking of Women in the Asia Pacific Region", Paper presented at the fourth Annual Meeting of the Asia Pacific Forum of Human Rights Institutions, Philippines, 6-8 September, 1999 p2.
16. Carolyn Graydon "We can't see any women refugees around here!", copy provided to the author.
17. Statistic commonly cited by the UNHCR.
18. IOM "Traffickers make money through humanitarian crises" in Trafficking in Migrants Quarterly Bulletin, No 19 of 1999, 1: http://www.iom.int/DOCUMENTS/PUBLICATION/EN/tm_19.pdf
19. R Commaraswamy (1999) Keynote speech, in NGO Consultations with the UN/IGO's on Trafficking in Persons, Prostitution and the Global Sex Industry, "Trafficking in the Global Sex Industry: Need for Human Rights Framework" June 21-22 1999 Room XII Palais de Nations, Geneva, Switzerland.
20. Interview with Tony Jones on Lateline, March 2002
21. Costello and Bhuta, above no. 13, 34.
22. G Hugo "Undocumented International Migration in South East Asia", in C Firdausy (ed) International Migration in South East Asia: Trends, Consequences, Issues and Policy Measures, 1998 CIPTAMENTARI SAKTIABADI, Victoria, 76.
23. Kathleen Maltzahn "Trafficking in Women for
Prostitution" Paper presented at the Australian Women
Conference, August 28, 2001,
About the author: Georgina Costello is a
Melbourne based lawyer. This paper is based on her
presentation at Project Respect's Stop the Traffic
symposium held in Melbourne on 25 February 2002. You can
download the full text from the RMIT website at
Organised by PROJECT RESPECT, The STOP THE TRAFFIC Symposium was sponsored by RMIT School of Social Science & Planning, VicHealth and PHAA (Public Health Association of Australia). In the Jan/March 2002 issue of KASAMA, we reprinted extracts from the presentations given by AURORA JAVATE DE DIOS and LIZ KELLY.