Scripta Varia

Australia - Robyn Christine Tupman

Presentation by Judge Robyn Tupman

District Court of NSW, Asia Pacific Regional Director IAWJ

My colleague from the UK, Judge Anisa Dhanji, reminded us yesterday about the campaign waged there in the 18th century against the slave trade by William Wilberforce. Chief Judge Anna Blackburn-Rigsby from the US reminded us of the sad history of slavery there, culminating in the devastating civil war, which still has some repercussions in the US today.

In Australia we have our own history of slavery, including the practice known as blackbirding, where Pacific Islanders were hijacked as slave labour for rural work in Queensland and, of course, the stolen generation of indigenous children forcibly removed from their families. This latter chapter in Australian history revisits Judges in the criminal justice system on a daily basis with increased mental illness, drug addiction and domestic violence, both as victims and perpetrators, and the shameful rate of indigenous imprisonment. Slavery therefore has a vast human cost which continues for generations.

And so all civilised people in modern times condemn slavery, which we thought had been eliminated. However, the more recent trend of human trafficking – sometimes for enforced sex work, sometimes for enforced labour, sometimes for forced marriage – represents a concerning return to effective slavery.

The Justice system has a very important role to play in eliminating this scourge, especially those of us involved in the Justice system in developed countries like Australia, where sadly our citizens are often also the consumers of the product of this modern slavery. So, to be given the opportunity to contribute, even in some small way, towards the elimination of this scourge is an honour and privilege. I would like to add my voice to others in thanking His Holiness Pope Francis for his leadership and contributions towards this goal, and in particular the Pontifical Academy and Monsignor Sánchez Sorondo for hosting this important Summit. I would also like to acknowledge the considerable efforts of the President of the IAWJ, Justice Susana Medina, for coordinating our attendance here as a large group of women Judges from around the world.

There can be no doubt that trafficking in human beings is a serious breach of human rights. What I want to do now is move on to discuss the situation in Australia and make some modest suggestions about some solutions we might adopt as women Judges in particular.

Overview of Position in Australia

Australia is a signatory to the Trafficking Protocol and is a regional leader in the Indo-Pacific region towards the total eradication of human trafficking and slavery. Regrettably, our region is also the source of a significant number of the victims of these practices worldwide, and also the source of the vast majority of offenders in our region.

Australia co-chairs, with Indonesia, the Bali Process on People Smuggling, Trafficking in Persons and Transnational Crime, which includes 48 member nations and is the principal mechanism for Australia’s regional cooperation in this area, providing a forum to work within the region to tackle this issue.

There are significant issues and challenges in the Indo Pacific region which create fertile ground for people trafficking, slavery and slavery-like practices – densely populated nations with considerable poverty; nations destabilised by lengthy wars and natural disasters; serious environmental and sustainability challenges, especially in the Pacific, with some small nations threatened with destruction as a result of the impact of climate change where the people want to leave to improve their lives. People in our region then are particularly vulnerable to the promises and offers of people traffickers for a better life, offering them apparently well-paid legitimate work in wealthy countries like Australia, only to find that they have been trafficked into sex work or that job involves fruit picking in rural Australia, in either case with a large debt still owing to the trafficker which they are expected to work off undertaking that sex work or for virtual slave wages, whilst in a state of virtual imprisonment, with their passports retained by the trafficker, their living conditions crowded and squalid and their movements severely restricted. All of this of course exists within a context – namely the relative wealth of Australia with a significant consumer appetite for all commodities including cheap goods, cheap labour and child and adult sexual services.

The 2016 Global Slavery Index estimated that there were at least 4,300 people in Australia “enslaved by criminal syndicates forcing them into prostitution and work”. So the problem is real and current in Australia, albeit not obvious and sometimes invisible. In addition to enforced sex work and forced labour, Australia has also identified forced marriage of women and girls as a third area which amounts to human trafficking and slavery-like circumstances.

The reason why this is often hidden or invisible in Australia is because most, if not all, of these trafficked people in fact come to Australia initially on lawful visas – work visas, tourist visas and, increasingly, on student visas because of the large overseas education industry which has flourished in Australia. Australia is a large island Nation and, like New Zealand, our visa entry requirements are very strict. We do not have the history of some nations of trafficked groups being smuggled across borders or similar. Most trafficked people come lawfully on visas arranged and paid for offshore by traffickers with promises of legal work or genuine study courses, which in fact either never did exist or are short-lived. So the victims then are not just victims of trafficking and are enslaved, but also in breach of their visa conditions, so at risk of being taken into detention by immigration authorities and deported. It is hardly surprising then that these victims are reluctant to come forward and, in fact, often lead lives in the shadows.

Legislative Framework

Anti slavery and human trafficking provisions have been part of Australia’s Federal law since 1999, amended several times since to reflect new behaviours identified as amounting to human trafficking or slavery-like practices, including in 2013 adding forced marriage to the Criminal Code (Criminal Code Act, 1995) as a slavery-like offence. But despite that, and despite the numbers of people estimated to be victims of human trafficking and slavery, there have been relatively few investigations – only 604 – fewer prosecutions and only 7 convictions between 2011 and 2016. The reasons for this fact are complex, including the visa and immigration issues already mentioned and the fear of retribution by victims.

What is being done?

The Australian government strategy to combat human trafficking and slavery was established in 2004 and is founded on 4 central pillars:

1.     Prevention and deterrence;
2.     Detection and investigation;
3.     Prosecution and compliance; and
4.     Victim support and protection.

As Judges and Prosecutors we have a role to play in each of these, some more than others, but within the constraints of our professional obligations, especially as Judges. But particularly as women Judges and Prosecutors, we have a special role and insight because of the clear recognition that tackling human trafficking and slavery is also an important means of addressing gender equality and ending violence against women. Global figures indicate that women and children are especially vulnerable to exploitation. For example, the UN Office on Drugs and Crime estimated in 2014 that 70% of trafficking victims globally are women and girls. The experience in Australia supports that finding, being identified primarily as a destination for women and children subjected to sex trafficking, but also trafficked to Australia for forced labour and forced marriage. Some of these 4 pillars are outside our expertise, namely detection and deterrence, and some, of course, are clearly within our roles, but governed by our own domestic legislation, namely prosecution and compliance. Others are perhaps more subtle.

Detection and investigation

For law enforcement agencies and Prosecutors this is fairly obvious, but for Judges perhaps not quite so much. However we can play our part. As my colleague from New Zealand, Justice Susan Glazebrook, said yesterday, if sitting in the criminal jurisdiction we may identify, in an apparently straightforward assault or domestic violence matter, a victim who is a recent arrival to Australia who seems especially cowed or overborne, who may be in fact a victim of trafficking. Perhaps a defendant may come before you, often a young woman, charged with drug offences, or perhaps minor stealing offences, who was in fact trying to escape a trafficked situation. As Judges we can seek to refer these people to the relevant anti-trafficking authorities and perhaps this may lead to the identification and prosecution of the traffickers. Of course, this always requires the cooperation of the victim which does not always occur for a number of complex reasons. However, my point is that we can and should be alert to the possible back stories and go the extra distance where we identify trafficking.

The same considerations might apply to those of us hearing family cases, cases involving the care and custody of children and, of course, cases brought against individuals who are in breach of visa conditions or in labour law prosecutions.

Victim Support and Protection

Whilst as Judges we may not have a direct role in this area, we are, however, as individuals and as a group, people of relative power. We may be able to add our voices to our local professional bodies when law reform is needed.

In July this year the Parliamentary Joint Committee on Law Enforcement of The Parliament of Australia published its report of “An inquiry into Human Trafficking, Slavery and Slavery-like Practices”. Professional bodies within the legal profession made submissions, and amongst those was from the Law Council of Australia, presided over, perhaps not coincidentally, by a woman, Fiona McLeod, QC. She and many others are calling for a National Compensation Scheme in Australia for the victims of human trafficking and slavery. That has been adopted as a recommendation by the joint committee. As Judges we may be able to contribute to our local professional bodies in this role of advocacy.

The Future

In addition to the Parliamentary Joint Committee recommendations referred to above, Australia is also considering enacting the Modern Slavery Act similar to the UK Modern Slavery Act 2015, including an Anti Slavery Commissioner whose role will include the investigation of trafficking and slavery complaints.

Amongst other provisions, this proposed legislation would compel large companies to report annually on their efforts to safeguard supply chains from slavery, with their responses then available in the public domain so that they can be viewed and boycotted by consumers if they do not measure up. This then amounts, potentially, to a corporate version of the Nordic model of criminalising the consumers of the sex trade, rather than the victims, which is a model apparently supported by the Pontifical Academy as a step towards eliminating the demand for one of the products of slavery. This model identifies the need for companies to be held accountable for their supply chains and force them to investigate and disclose whether along those supply chains are goods produced as a result of modern day slavery. It is a model which deserves close study and support. Each of us represents a nation State and we are here at a meeting in the Vatican State. Are our governments, institutions and large corporations ensuring that their own supply chains are free from slavery? But it can go further. Each one of us is also a consumer. We can make a personal commitment to avoid goods which are produced through slavery. Can we truly justify the retail price for a t-shirt of $4 or even less? That happens in Australia and I’m sure it is the same in your individual jurisdictions. How can it ever be possible to produce and sell a box of strawberries or blueberries in a commercial retail setting for as little as $1 without exploitation? There is an NGO in Australia, which was represented here yesterday as an observer, called the Walk Free Foundation, which is supporting this proposed legislation and particularly putting pressure on large companies, including large supermarket chains, to be accountable for their own supply chain to avoid products produced by trafficked persons. It is a model worth investigating and supporting in an effort to identify the product of human trafficking, especially forced labour.

Another important issue is for wealthy, developed nations to commit to proper overseas aid in their regions to reduce poverty. Unfortunately, the current experience in many of these nations, including Australia, is that overseas aid has been severely reduced. As my colleagues from the Philippines have identified, poverty is a clear driver of human trafficking and slavery there, and there can be no doubt that the elimination of poverty and the fair distribution of wealth worldwide would play a powerful role in reducing trafficking and slavery.

So, there is an overview of the situation in Australia at present and some steps being taken, which I commend for consideration. I hope that from this impressive gathering of women Judges over the last two days there might emerge some practical solutions so that the goal of eliminating this worldwide tragedy and shame might become a reality and not just a dream.

 

 

 

 

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