Chicken farms, agriculture, commercial kitchens, convenience store franchises, car washing, and private homes have all been origins of migrant worker exploitation experienced by back-packers, international students, 457 visa holders and partners of Australian citizens.
Reported exploitation includes under or non-payment of wages, non-compliance with wage awards, failure to conform to appropriate workplace standards and failure to provide a safe workplace, through to the serious human rights abuses of human trafficking, slavery, servitude, forced labour and debt bondage (hereafter ‘human trafficking and slavery’).
When is exploitation at work a breach of workplace standards and when does it become the crime of slavery or human trafficking? One thing is certain: the crimes of human trafficking, slavery and slavery-like practices are complex and difficult to investigate and prosecute. They are also violations of human rights.
The crimes of human trafficking, slavery and slavery-like practices are complex and difficult to investigate and prosecute.
The reports are serious and the language confronting. How can it be that human trafficking and slavery are happening in an advanced and thriving country like Australia? There have been 18 criminal convictions since 2004 for human trafficking and slavery offences, including two cases of child trafficking, one being the recent and disturbing trafficking of twin baby girls to Australia for the purpose of sexual exploitation.
At a time when the Australian Fair Work Ombudsman pursues companies engaging in exploitative cash-back payment schemes (as recent as 22 July 2016), where employees were threatened that they would not be sponsored for a permanent visa if part of the their salary was not paid back to the employer, has investigated business practices of the 7-Eleven franchises and documented serious non-compliance with Australian workplace law; the question must be asked, do these exploitative workplace arrangements amount to human trafficking and slavery? Clearly civil breaches of workplace laws are part of a continuum of exploitation, often result in adverse consequences to individuals and their families and breach human rights standards; but they may not be human trafficking or slavery.
Australian responses to human trafficking and slavery
Australia has responded to human trafficking and slavery through legislative and policy initiatives since 2003 and the Australian Government National Roundtable on Human Trafficking and Slavery was established in 2008 as a forum for government and NGOs to consult and identify trends and gaps in approaches. I have been a member of the Roundtable since it was established and have been encouraged and strengthened by the high degree of collaboration and trust created by members of the Roundtable.
The Roundtable has been an extraordinarily effective forum, bringing together cooperating government agencies and NGOs and achieving real and substantial outcomes. For example, discussion at the Roundtables led to the creation of forced marriage as a slavery-like practice, new criminal offences of forced marriage and forced labour and better protection for vulnerable witnesses in criminal trials. This forum has also been a vehicle for discussion and consultation about the need for a national compensation scheme for trafficked people.
Another critical area for discussion at the National Roundtable which is of particular concern to civil society members, has been Australia’s promotion of a criminal justice framework – we know that some survivors of human trafficking are unable to assist law enforcement, and in such cases there are often human rights concerns that require a more nuanced response to victim support.
The preamble to Australia’s National Action Plan to Combat Human Trafficking and Slavery 2015 -2019 is an important affirmation of the importance of a victim-centred approach and the primacy of human rights: “Australia is committed to a future where no one is a victim of human trafficking or slavery, andthe human rights of all people are valued equally.”
The National Action Plan is instrumental in combatting human trafficking and slavery. In documenting disturbing accounts of workplace exploitation, there needs to be a clearer articulation of the difference between civil breaches of workplace standards, such as those that may be pursued by the Fair Work Ombudsman, and the criminal offences of human trafficking and slavery. Remedial pathways to reduce vulnerability to workplace exploitation, particularly of vulnerable migrant workers, could include the provision of accessible information about Australian law and workplace standards to all visa holders, early referral to support agencies, and pinpointing and remediating areas of particular concern, such as the role of third party labour agents.
A Case for an Anti-Slavery and Trafficking Commissioner
Numerous reports have raised concerns about exploitation of labour. It should be noted that the criminal offences of human trafficking and slavery are silent as to the status of the victim/survivor. In other words, the victim may be an Australian citizen, a resident, or a person with a disability. In observing international responses to human trafficking and slavery, one initiative, to establish an Anti-Slavery and Anti-Trafficking Commissioner (Anti-Slavery Commissioner), is timely for consideration in the Australian context and could be leveraged out of the National Roundtable. An Anti-Slavery Commissioner could provide real benefits for vulnerable people and survivors of human trafficking and slavery.
The Commissioner role would be an independent position, with responsibilities to:
- Ensure compliance with human rights obligations;
- Independently monitor and review Australia’s implementation of anti-human trafficking strategy and report annually to the Australian government on the Commissioner’s functions;
- Receive reports, monitor and provide reports of investigations;
- Provide recommendations to government and non-government agencies;
- Assess the effectiveness of Commonwealth legislation and policies and the impact of any proposed Commonwealth legislation and policies relevant to trafficking and slavery;
- Request and receive data and information relevant to human trafficking and slavery; and
- Sit on the National Roundtable on Human Trafficking and Slavery.
The additional benefits of having an independent Commissioner would include:
- Increased efficiencies in Australia’s strategy by providing advice about any duplication and gaps across Commonwealth law enforcement agencies and make recommendations to ensure Australia’s response is best practice; and
- Strengthened collaboration between multiple government agencies which would be enhanced by expert advice and guidance provided by the Commissioner, including identification of vulnerable people, support services and adoption of a human rights-based approach to human trafficking and slavery.
Jennifer Burn is a guest on Insight's Fair Work, Fair Pay, looking at forced labour and exploitation in Australia today | Catch up online now:
Jennifer Burn is a professor of law and director of Anti-Slavery Australia (ASA) at UTS. ASA is a faculty based law, research and policy centre dedicated to the abolition of human trafficking, slavery and slavery-like practices. Since 2003 ASA has provided access to legal advice and representation to trafficked people. If you are experiencing serious exploitation or know someone who may be exploited, contact us. In cases of emergencies, call Triple 0. For the AFP Human Trafficking team contact 131AFP.