Foreign sex slaves in Australia – victims or criminals? – The current visa system

Criminal Law, Miscellaneous

The ABC has reported on the plight of foreign victims of sexual exploitation in Australian brothels, noting that they are put in danger by the requirement that they speak to police before they can receive government support services.

Under the Federal Government-funded Support for Trafficked People Program, victims of trafficking have to assist police in building a case against traffickers, in return for medical aid, psychological support, accommodation and living allowance and English classes.

Many victims are reportedly scared, unwilling or unable to contribute to police investigations, for fear of repercussions from people traffickers. If they are seen to be endangered when returning to their country of origin, the victims may eventually be granted a permanent visa.

The Assessment and Intensive Support Stream sees that all trafficked people referred by the AFP to the Support for Trafficked People Program are eligible to receive 45-day support, regardless of whether they are willing or able to assist with the investigation. If the person does not have a valid visa, they are granted Bridging F visa to cover that period.

The Extended Intensive Support Stream provides access to a further 45-day support for trafficked people who are willing but not able to assist with the investigation.

The Justice Support Stream provides support for trafficked people until the investigation and prosecution process is finalised. Their stay in Australia throughout that period is covered with Criminal Justice Stay visa.

The Temporary Trial Support Stream provides support for trafficked people giving evidence pertaining to a human trafficking or slavery-related prosecution. A person who has made a contribution to an investigation or prosecution process may be eligible for a Referred Stay (permanent) visa.

This visa system, and in particular the Extended Intensive Support System and the availability of a Referred Stay permanent visa conditional on making a contribution to an investigation or prosecution process are clearly of a utilitarian character and based on making a value judgment as to the perceived helpfulness of a victim to prosecuting authorities. In our view, this is an inappropriate conflation of humanitarian and criminal justice aims. In particular, a victim who is willing to evidence but cannot give new or useful evidence would appear to be disadvantaged compared with a victim who, by circumstances beyond their control, is in a better position to assist authorities. This seems fundamentally unfair.

In the criminal system, individuals facing prosecution routinely offer to give evidence against other individuals in return for some benefit to themselves. There is an established system by which police inform the courts dealing with an informant of the extent to which they have assisted police, which the courts take into consideration in dealing with the informant more leniently. That these dealings are shrouded in secrecy in practice adverts to the obvious risk that arises when a person in the prison environment is seen to ‘rat out’ another prisoner or would-be prisoner. Perhaps for this reason, offenders are never punished for the courts for lacking to give assistance to authorities, merely only rewarded for doing so in appropriate circumstances. This situation conceivably flows from an inherent recognition that it is at heart the offender’s decision to make, weighing up the risks: give assistance in exchange for a lighter sentence while risking bodily injury in custody or harm to his or her family being occasioned in reprisal, or take the full hit of a sentence giving no assistance, averting any future retributive risk to self or family.

While victims of human trafficking and sexual exploitation can hardly be considered serious criminals, the current system in question certainly echoes that of the prison informer. These victims have well founded fears of what might happen to them or their families in south-east Asia should they be seen to have informed police on the activities and identities of their traffickers. Basically, if not for the most part actually, in the position of refugees, they have limited means to support themselves while in Australia, other than to obviously submit to the inhumane treatment which they have already suffered while in Australia. These victims are between a rock and a hard place, being down-and-out with no ability to work in Australia and no support from government, or receiving support in exchange for endangering their and their family’s lives.

The comments of a representative of the Attorney-General’s Department clearly underscores a narrow-minded conflation of priorities. At the top of the Department’s concerns is the viability of prosecutions of human traffickers, rather than the welfare of the victims of these crimes. A spokesperson cited that a victim’s ‘incentive’ to give assistance would be diminished if benefits were not conditional on giving that assistance. The spokesperson also cited concerns about the ‘deterrent’ effect of Australia’s legislative framework prohibiting human trafficking should investigation and prosecution not be effective.

Clearly there is also political pressure, with a US State Department’s human trafficking report indicating the prosecution rate in Australia is already low, and reports that the department has urged Australia to “vigorously prosecute, convict and stringently sentence traffickers”.

A proper system would offer immigration assistance to these victims value-free from their usefulness to prosecuting authorities, and rely on whatever resources it has available to prosecute offences, including where available the assistance of victims freely offered without figuratively holding a gun to their head. The Attorney-General’s Department needs to decide whether these people are victims or colluding criminals, because under the current system, they certainly appear to be being treated as the latter.

Image credit:  Reuters and ABC News

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Foreign sex slaves in Australia – victims or criminals? – The current visa system