The inquiry into a Modern Slavery Act
On Wednesday, 15 February 2017 the Attorney-General, Senator the Hon George Brandis QC, asked the Joint Standing Committee on Foreign Affairs and Trade to inquire into and report on Establishing a Modern Slavery Act in Australia. The Committee was asked to examine whether Australia should adopt a comparable Modern Slavery Act. The Committee reported in December 2017.
Our key concerns
This submission highlights the need to address forced migration issues throughout Asia, recognising the link between refugees and victims of trafficking. It explores options for Australia to take a more protection focused role in the region, especially through leadership in the Bali Process. Finally, it endorses a Modern Slavery Act in Australia and highlights areas of particular concern for people seeking asylum and refugees in Australia in relation to issues of trafficking.
The link between trafficking, smuggling and refugees
The issue of trafficking is closely linked to forced migration, smuggling and refugee displacement. The rapid rise in the number of people who have been compelled to flee their homes due to conflict and persecution has been accompanied by a rise in the forced recruitment of children into armed groups, sexual slavery or forced labour, and increased trade of women and girls into forced marriage.
Refugees who are forced to flee may also become victims of trafficking. People smuggling may merge into trafficking when smugglers use their position of power to exploit or abuse people who are fleeing persecution or violent conflict. Smugglers may take advantage of their clients’ desperation to extract additional money, forced labour or sexual services from them either before, during or after the journey.
Human trafficking and smuggling thrives on restrictive border and asylum policies. The absence of a viable option for accessing protection often leaves refugees with no choice but to entrust their lives to smugglers, meaning that any deterrent effects of these policies are counterbalanced by a “deflection into irregularity.” A low rate of resettlement places may therefore increase the number of irregular migrants within a host region, as well as heightening the risk that they may fall prey to traffickers.
As RCOA has advocated for years, safe and orderly pathways to protection are needed to combat people smuggling and trafficking. RCOA has also underscored the need to address root causes of displacement, and to focus on building regional protection in our region. If refugees could lawfully live, work and access basic health and education services in countries within the region, this would greatly reduce the incentive to move on that gives rise to exploitation and trafficking. Australia can play a key role in developing a regional response to forced migration through the Bali Process.
Rohingya refugees in Southeast Asia
The Rohingya people, a Muslim ethnic minority who live in Myanmar’s Arakan and Rakhine states, have been called the “most persecuted minority in the world”. The Rohingya have been subject to widespread systematic persecution which has left over 120,000 internally displaced within Myanmar, and over 1 million with severely restricted rights and limited access to humanitarian aid. Large-scale rape, torture, murder, forced population transfer, ethnic cleansing, and the denial of citizenship rights have driven more than 100,000 stateless Rohingya to flee their country of birth by sea.
Rohingya refugees from Burma have fled multiple forms of persecution including forced labour in Burma. They are also extremely vulnerable to exploitation and slavery in the countries to which they move, in particular Thailand and Malaysia. The lack of safe, legal avenues by which they can flee Myanmar forces them to engage smugglers, who have been reported to murder or abandon passengers who cannot pay the smuggling fee. These exorbitant fees can also be seen as a direct and deliberate form of exploitation, given they have no other means of transportation nor any avenue for recourse.
People smuggling can also merge into human trafficking, when smugglers pick up people seeking asylum whose boats are pushed out to sea by government officials, and then sell them into indentured servitude on Thai farms or fishing boats.
Addressing the exploitation of Rohingya in the region ultimately requires tackling the root causes of displacement from Myanmar, as well as providing safe and orderly pathways to protection and the basic rights for those who remain in countries of asylum such as Thailand and Malaysia. Without a safe pathway to protection, such as resettlement, Rohingya will continue to flee to neighbouring countries where they are denied basic rights are fall into exploitative situations, thereby becoming trafficking victims.
Towards a protection focused role in the Bali Process
The Bali Process is a key opportunity for Australia to exert a positive influence in response to forced displacement in the Asia-Pacific region. Australia, as co-chair with Indonesia, is well placed to provide constructive leadership through the Bali Process, which involves more than 48 members including key states, international agencies and observer countries. Established in 2002, the Bali
Process was set up to allow collaborative work on addressing the issues of people smuggling, trafficking in persons and related transnational crime.
More effort is needed to include in this discussion NGOs and a broader range of civil society representatives. As the formal Bali Process meetings provide very limited opportunities for civil society engagement, it is important to create other opportunities for dialogue and to develop proposals to address protection needs. Australia as co-chair could support the involvement of credible and established civil society networks, such as the Asia Pacific Refugee Rights Network (APRRN), in these discussions.
To increase the engagement of our neighbours, the Bali Process must recognise the interests of other countries, including in both South East Asia and South Asia. The dialogue should include the world’s largest protracted refugee situation in Pakistan, and the flow of Rohingya refugees into Bangladesh and the Bay of Bengal. Greater room should be given to the perspectives and needs of host governments such as Pakistan and Bangladesh. Similarly, there is a need for greater dialogue with NGOs and the broader civil society in South Asia.
However, Australia can only play an effective role in furthering regional if its own policies protect refugees. As participants in our consultations have repeatedly noted, Australia cannot credibly advocate for change while maintaining policies that harm people seeking asylum and refugees.
Support for an Australian Modern Slavery Act
There is a strong case for an Australian Modern Slavery Act, mirroring that of the UK, based on Australia’s commitments under the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (Palermo Protocol). Under the protocol, states parties are obliged to establish legislation to criminalise trafficking in persons, as well as to provide support and protection to victims of trafficking.
The United Kingdom’s 2015 Act supports these commitments by clarifying criminal offences relating to slavery and trafficking and increasing their relevant penalties. The Act also provides a statutory defence for victims of slavery or trafficking who face criminal proceedings as a result of their exploitation. This is particularly relevant in the Australian context, given that many of the people who are prosecuted as people smugglers have been deceptively recruited to work on ships as crew members, and may themselves be victims of trafficking.
Reforming the Australia visa system to provide greater support for victims of trafficking and slavery
Australia is obliged under the Palermo Protocol to consider humanitarian and compassionate factors when determining the visa and residence status of trafficking victims. In practice, however, the eligibility of victims for visas has instead mainly depended on a victim’s cooperation with relevant criminal investigations. Their access to even temporary legal residence depends on the discretion of police and prosecutors, and factors such as whether the perpetrators are located in Australia.
Victims who help with the prosecution of their traffickers may legitimately fear retribution when they return to their country of origin. Such victims would also be refugees, and in such cases Australia must be ready to protect them to meet its international commitment to the principle of non-refoulement.
The Joint Standing Committee’s 2013 report, Trading Lives: Modern Day Human Trafficking, received numerous submissions detailing how victims are unable to access welfare support or services available to permanent residents. Victims of trafficking in Australia have very limited options to apply for a visa. An application for ministerial discretion on humanitarian grounds is personal and not subject to review, while other routes depend on victims passing character tests. Such tests may be particularly difficult to pass for those who have engaged in illegal conduct as the result of forced labour or exploitation.
Australia’s mandatory detention regime must also be reformed to comply with international human rights law. The UN Trafficking Principles and Guidelines require that trafficked persons “shall not be detained, charged or prosecuted for their illegal entry into or residence in countries of transit or destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.”
Australia should provide international leadership in addressing the drivers of forced displacement and protection needs in countries of asylum. In particular, the Australian Government should:
- recognise the crucial role of aid in addressing the reasons people move, by immediately restoring Australia’s overseas aid program to its former level and aiming to increase overseas aid to at least 0.7% of Gross National Income,
- work with diaspora communities in Australia and people living in refugee communities overseas to identify urgent protection needs in countries of origin and asylum and develop and implement strategies to respond to these needs,
- provide additional funding to UNHCR, given the increasing numbers of displaced people worldwide and UNHCR’s critical role in coordinating humanitarian responses to displacement,
- develop a cross-portfolio approach to promoting the protection of forced migrants and working with other states to explore options to promote access to some form of legal status, alternatives to detention, work rights, education and health for refugees in countries of asylum, particular in South Eas Asia, and
- convene a forum with NGOs, peak bodies, intergovernmental bodies and other relevant stakeholders to advance the development of an integrated response to displacement, including consideration of the roles of aid, diplomacy, capacity-building and resettlement.
The Australian Government and other resettlement states should work with the Governments of Bangladesh, Malaysia and Thailand to develop a regional strategy for facilitating resettlement and brokering other durable solutions for Rohingya refugees, including through reinstating resettlement from Bangladesh.
RCOA recommends that Australia, in its capacity as co-chair of the Bali Process, revive efforts to operationalise the Regional Cooperation Framework agreed to by Bali Process members in March 2011, including advocating for greater involvement of civil society networks in the development of a regional response to forced displacement.
The Parliament of Australia should enact an Australian Modern Slavery Act based on the successful provisions of the UK Modern Slavery Act. In particular, RCOA supports:
- the creation of a statutory defence for victims of trafficking or forced labour in criminal proceedings, subject to a burden of proof that is reasonable in all the circumstances,
- the establishment of the office of an independent Anti-Slavery Commissioner, and
- a statutory requirement that companies operating in Australia must take steps to address the risk or incidence of forced labour in their supply chains, and regularly report on those steps.
Victims of trafficking who fear persecution or harm if returned to their country of origin should be given information, support and legal advice in order to apply for protection in Australia. This should be facilitated by a National Referral Mechanism similar to that contained within the UK’s Modern Slavery Act, which obliges authorities to record and report encounters with potential victims of trafficking and allows a 45-day reflection period for case assessment during which the alleged victim is not liable to immigration enforcement action.
Australia should reform its immigration detention regime substantially to comply with international human rights law, including the UN Trafficking Principles and Guidelines. This should include:
- abolishing mandatory detention and instead using detention as a last resort and only when strictly necessary,
- imposing a maximum time limit of 30 days of detention without judicial review, and a maximum of six months overall,
- establishing a system of judicial review of immigration detention longer than 30 days, with subsequent regular reviews,
- codify clear criteria for lawful detention and minimum standards of treatment for people in detention, in line with UNHCR’s Detention Guidelines, and
- prohibit the detention of children in closed immigration detention facilities.