Acquisto, who interviewed Ning for his documentary
Trafficked
, said Ning initially felt as though she had done something wrong. “She felt ashamed, and she carried that with her for a long time, even though she was only 13 at the time when she was trafficked. She realizes … that she was in fact a victim, that she didn’t do anything wrong, and that justice, to some extent, has been done” (Mercer, 2007). Acquisto views the tribunal’s decision as a positive, but not final, step in working toward the elimination of trafficking:
The culmination of our work with Ning was the awarding of 50,000 Australian dollars [roughly 50,244.05 U.S. dollars] to her as compensation for the crimes that happened to her when she was trafficked to Australia. This was a historic decision, the first of its kind in Australia and possibly the world. I felt great satisfaction at being part of the process that led to this decision. My wife and co-producer, Stella Zammataro, worked with Ning for two years putting together the application, gathering the materials required, and lodging the application. This was a labor-intensive task and one that required excellent knowledge of English and a high level of organizational and negotiating skills. Hopefully, Ning’s case has set a precedent, but it will not be one that future victims will be able to benefit from without considerable support from a solicitor or NGO.
Fiona McLeod, a human rights attorney and former president of the Australian Women Lawyers, helped Ning file her claim and expressed her belief that the outcome could pave the path for other victims to pursue claims against their traffickers. “I am hopeful that the success of the compensation claim will at least educate other trafficking victims about the possibility of making claims,” McLeod told the
Age
(Craig, 2007).
Some internal trafficking does occur in Australia, though to what degree is unknown. For instance, indigenous teenage girls face forced prostitution at rural truck stops (U.S. Department of State, 2009). Indigenous females are a marginalized population that faces discrimination in the Australian criminal justice system, particularly in sexual-assault cases (McGlade, 2006). The marginalization of this group makes it difficult to know how many are affected by trafficking and whether the trafficking is limited to commercial sexual exploitation or extends to forced labor. Thus far the government has not identified or prosecuted any internal trafficking case (U.S. Department of State, 2012).
WHAT HAPPENS TO VICTIMS AFTER TRAFFICKING
Since July 2009, when changes to the Support for Victims of People Trafficking Program and the People Trafficking Visa Framework went into effect, temporary services for suspected victims increased from 30 to 45 days. The objective of the extension is to allow for an extended recovery period in which victims have more time to consider their options (FaHCSIA, 2009). Victims of trafficking have access to support services regardless of whether they assist police in the investigation and prosecution against their trafficker(s) (U.S. State Department, 2010). Those victims who are willing but unable to assist may be eligible for 90 days of support. Eligibility is determined on a case-by-case basis. Formerly, those who made a “significant” contribution to an investigation were eligible to obtain a Witness Protection Trafficking Certificate. Today any contribution to an investigation warrants eligibility. The new amendments collapsed the Temporary and Permanent Witness Protection Visas for trafficking victims into one permanent visa. The visa includes not only victims but also immediate family members inside and outside Australia (FaHCSIA, 2009). Between 2004 and 2006, 58 visas allowing persons to remain lawfully in Australia were granted to victims or witnesses assisting in an investigation. In 2010 Permanent Witness Protection (Trafficking) Visas (Class DH) were granted to 20 victims and 9 family members. In 2011 the government granted 48 Permanent Witness Protection Visas to victims and their family members (U.S. Department of State, 2007b, 2011, 2012).
Victims can also apply for a protection visa as refugees. Permanent visas are granted to those who have obtained a temporary visa for two years. The visas for trafficked persons also come with a variety of benefits—administered by the government’s Support for Victims of People Trafficking Program—ranging from food, living allowances, and counseling, to shelter. As of January 2007, 35 persons had been assisted in this program. In 2010 the government identified and assisted 31 potential victims of trafficking, all foreign; 20 were potential sex-trafficking victims, and 11 were believed to be forced-labor victims. Eight of the victims were men. In 2011 the government identified 11 victims; 6 were forced-labor victims (FaHCSIA, 2009; U.S. Department of State, 2007b, 2009, 2011, 2012).
There is a history of arrest, detention, and deportation of trafficking victims in Australia. For instance, many of Glazner’s victims fell through the cracks and were sent to detention centers for visa violations. And once it became known that the female victims had not themselves filled out the visa applications in their names, the applications became invalid. The women were kept in detention until the hearing, and afterward the trafficked women were deported to Thailand—regardless of the fact that many of them feared retaliation against themselves and their families upon their return. The police and the Office of Public Prosecutions faced difficulties with DIMIA in allowing the witnesses to stay in the country even for the hearing. Throughout that time, Glazner was out on bail (Ford, 2001).
Another example of a trafficking victim marginalized by DIMIA is that of Noi, a Thai citizen trafficked to Australia for commercial sexual exploitation. Picked up for an immigration violation in 2000, Noi was arrested and placed in the Villawood Immigration Detention Center, where she died from malnutrition and acute pneumonia. Luigi Acquisto said Noi’s obvious deteriorating condition went unnoticed by staff. “She vomited into a bucket for 60-plus hours while at the detention center. The coroner’s shocking report on her death as well as the treatment she faced in the center made headlines throughout Sydney.” The trafficking experiences of Ning and Noi are described in chapter 4.
WHAT HAPPENS TO TRAFFICKERS
The 2000 case against Glazner, as well as lobbying by NGOs, resulted in federal policy and legislative initiatives. Glazner himself received a fine of only $31,386.53 and a suspended sentence of 18 months’ imprisonment, despite being found guilty on five counts of providing unlicensed prostitution and two counts of living on the earnings of prostitution. On appeal before Victorian Supreme Court of Appeal, Glazner was given a suspended sentence of 30 months’ imprisonment, and the fine was reduced to $30,388.81 (Ford, 2001). Also a matter of concern is the joke that the County Court presiding judge, William White, made before the jury. Seized from Glazner’s home were “free passes” granting men a service with the lady of their choice. The judge remarked: “There are eight gentlemen of the jury—do we have eight freebies for them?” (Ford, 2001). White’s statement blatantly undermined the severity of the crime.
From February 2007 to 2008, the Transnational Sexual Exploitation and Trafficking Teams and the Australian Federal Police conducted 27 investigations, 80 percent of which were related to sex trafficking. In the same reporting period there were 7 trafficking-related cases before the courts involving 15 defendants, 3 of which were in the appeals phase. Of the four convictions for trafficking, one trafficker was sentenced to 8 years’ imprisonment; presumably this was the longest of the four sentences (U.S. Department of State, 2008). In December 2008, in a highly publicized case that involved the sex trafficking of two Thai nationals, Keith William Dobie was sentenced to 5 years’ imprisonment for the forced prostitution of the two women (University of Queensland, 2011c). Neither of these sentences is adequately stringent. The number of successful prosecutions continues to remain low. In 2009 and 2010 the government convicted four and five sex traffickers, respectively. Sentencing for offenders in 2010 ranged between 2 and 12 years’ imprisonment (U.S. State Department, 2010, 2011). Available data indicate that sentences for sex trafficking range between 2 years and 3 months to 14 years’ imprisonment. The average sentence is 7 years and 10 months. The average time an offender must serve before being considered for parole is 5 years and 2 months (University of Queensland, 2010, 2011c). There has been only one conviction for labor trafficking; the trafficker was sentenced to community service and a fine (U.S. Department of State, 2012).
One hurdle for prosecutors is that movement is a required element of the offense of trafficking in persons, Division 271. The result is that without being able to prove movement, the prosecutor will not succeed in the case. This improperly places the focus on the movement of victims, not on the exploitative purpose.
3
Transnational trafficking and domestic trafficking are prohibited under Division 271, but movement is a required element of both. The distinction is that the common element required in transnational trafficking is entry/exit into/from Australia (271.2), while the common element required in domestic trafficking is the transportation of another person from one place in Australia to another place in Australia (271.5). A separate offense of debt bondage is also inserted into Division 271 and does not include movement as a requirement. Unfortunately, the penalty—12 months for debt bondage or 2 years in cases of aggravated debt bondage—is insufficiently stringent. Furthermore, the guidelines give room for a significant amount of subjectivity, as courts are instructed that they may have regard to any of the matters listed, which include the economic relationship between the two persons, the terms of agreements (written or oral, between the victim and another person, not necessarily the persons being accused), and the personal circumstances of the victim (Australian Government, 2005). Contrarily, Division 270 focuses solely on the exploitation itself, and includes and defines the offenses of slavery and sexual servitude. It also includes the offense of deceptive recruiting for sexual servitude (Australian Government, 2012). The issue for prosecutors in cases of forced labor is determining what offenses are likely to be the most successful, as the specific offense of forced labor is not yet included in the Criminal Code. When used in conjunction, the two divisions seemingly cover multiple ways to prosecute a trafficker for forced labor offenses. That way, if one fails it does not preclude success under one of the other offenses. Thus far there have been only two prosecuted cases of labor trafficking, and in both cases only Division 271.2 (transnational human trafficking) was used. This placed the emphasis of the cases on the movement, not the exploitation of the victims. This occurred in the 2011 case of
R. v. Trivedi
, Australia’s first conviction for labor trafficking. The offender was charged under Division 271.2 (1B). He was convicted, but the conviction resulted from a guilty plea. This is significant as it means that the judgment against Trivedi was a result of his own declaration of guilt, not a result of a jury determining that he was guilty. In a similar case in 2007 an alleged offender also charged under 271.2 (1B) pleaded not guilty and was acquitted by a jury, illustrating that Division 271.2 alone may not be sufficient to prosecute labor traffickers. In sex-trafficking cases, the charges nearly always include offenses listed in Division 270 and sometimes include offenses listed in Division 271. The exception is
R. v. Dobie
, in which the sex trafficker was charged under 271.2 (2B) and pleaded guilty (University of Queensland, 2011a, 2011b).
The dearth of criminal prosecutions for labor trafficking makes it difficult to conclude whether Division 271 is not strong enough to stand alone. In the two labor-trafficking cases in which there have been criminal prosecutions,
R. v. Trivedi
and
R. v. Yogalingham Rasalingham
, the alleged offenders were charged under 271.2(1B): facilitating the entry of another person to Australia, being reckless as to the exploitation of that other person. The definition of slavery in Division 270 could have also been applied: “the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.” Yet prosecutors did not use this division, despite the victims’ slavelike conditions. Perhaps the prosecution teams believed that proving slavery would be unsuccessful. In the case of
R. v. Trivedi
the trafficker facilitated the victim’s travel to Australia and helped the victim obtain the necessary travel documents. The victim was forced to live in a storeroom at the back of the restaurant, bathe in the kitchen, and work for 12 hours a day, seven days a week. His pay was nominal and irregular, and he had limited access to his passport and was physically and mentally abused (University of Queensland, 2011a, 2011b). In
R. v. Yogalingham Rasalingham
, the alleged trafficker denied arranging for the victim’s travel. Instead, he directed the victim to a travel agent in India who made all the arrangements, including obtaining a visa to enter Australia. Upon arrival in Australia the alleged trafficker forced the victim to work seven days a week, sometimes for more than 15 hours a day; did not pay the victim or transfer any money to the victim’s family in India (per their agreement); and withheld the victim’s documents, including his passport (University of Queensland, 2009b).
According to Janice G. Raymond of the Coalition Against Trafficking in Women, the essential element in human trafficking is not the movement of persons but rather the exploitative purpose (Raymond, 2001: p. 5). Amendments to the Australian anti-trafficking law that focus on the exploitation of forced labor itself as opposed to the movement of persons would be more accurate and far more useful to prosecutors, and in turn to victims. Draft legislation proposed in November 2011 would create new offenses of forced labor, forced marriage, organ trafficking, and harboring a victim. These changes were proposed in August 2012 with the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012 (Parliament of Australia, 2012).