Author: Christopher Craigie SC, Date: 06/09/2010 Venue: International Association of Prosecutors’ 15th Annual Conference
As the Federal prosecution agency in Australia, my Office has a long-standing practice in prosecuting crimes that cross international borders. By way of example: The Commonwealth Director of Public Prosecutions has responsibility for the prosecution of those persons who engage in the importation of illicit drugs, frauds on the Australian Government, including revenue fraud and commercial prosecutions, a significant number of which also have an international component. In recent years we have prosecuted in an ever-expanding range of new areas with international aspects. This includes counter-terrorism, money laundering, child exploitation, offences impacting upon our maritime environment and resources, and now human trafficking, labour exploitation, slavery and sexual servitude. For our purposes of definition human trafficking includes areas such as slavery, sexual servitude and debt bondage, as all these offences tend to have an international component and often involve the movement of people across borders. I should commence by saying that unlike many here, our experience with prosecuting human trafficking is relatively new but although the numbers are as yet small, the area has received a good deal of attention and development in guiding principles from our highest Court. Unfortunately, although new, we expect this area of offending and prosecution to continue, if not grow. It is now recognized that the Asia-Pacific region is one ‘hub’ for human trafficking, particularly where that trafficking is for the purposes of sexual servitude. Plainly, as Australia is now a destination country and market for this type of offending, we carry a responsibility to address the problem vigorously.
International Obligations with respect to Human Trafficking
Australia is party to a number of international conventions that prohibit human trafficking including:
- The Slavery Convention – ratified in 1927;
- The United Nations Convention against Transnational Organized Crime – ratified in 2004; and
- The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children – ratified in October 2005.
The Trafficking Protocol outlines 3 key objectives:
- to prevent and combat trafficking in persons, particularly women and children;
- to protect and assist victims of trafficking, with full respect for their human rights; and
- to promote cooperation among States Parties in order to meet these objectives. (A2, UN Trafficking Protocol)
The Trafficking Protocol defines trafficking in persons as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” (A3(a) UN Trafficking Protocol.) To fulfil its international obligations, the Parliament of the Australian Commonwealth enacted amending provisions into federal law via the Commonwealth Criminal Code Act 1995 (the Code), criminalising human trafficking and providing appropriate penalties for human traffickers. On 3 August 2005 Div271 was introduced into the Code entitled “Trafficking in persons and debt bondage.” This division built upon the existing Commonwealth provisions in Div270 of the Code that previously constituted explicit criminalisation of slavery and sexual servitude. Of course, conduct constituting many aspects of the offence over-lapped activities long regarded as criminal under State and federal laws. Australian federal legislation now contains 5 categories of offences that encompass our international obligations to criminalise and combat human trafficking. Those categories are:
- sexual servitude;
- deceptive recruiting;
- human trafficking; and
- debt bondage.
These offences are serious and carry maximum penalties of up to 25 years for an offence of slavery or trafficking in children. In our jurisprudence the maximum penalty is indicative of what is envisaged for a notional “worst case”. It is also Parliament’s principle source of guidance to a sentencing judge’s discretion as to where the particular offence sits relative to the maximum, although it also indicates that any human trafficking offence is to be regarded as inherently serious.
Australia’s Experience of Human Trafficking Matters
Whilst our experience is relatively recent there has been a considerable working through of the legal complexities in the new provisions at both trial and appellate levels, up to and including the High Court of Australia, being our ultimate Court of Appeal. All of the prosecutions to date have been particularly challenging. They have involved breaking new ground for us in complex legal and practical issues, many of the latter flowing from the international character of the offending. It is important to note that the Australian Constitution requires that federal offences on indictment, as these were, must be tried before a jury. Whilst this has its own challenges, there are some advantages in calling upon the community to participate in the judicial determination of the prosecutions. Each case so far has been unique, although human trafficking cases in Australia have very largely involved trafficking of young women for sexual purposes to work in legal and illegal brothels. It should be noted here, that the eight States and Territories of Australia have different laws applying to prostitution. Whilst prostitution is no longer criminalized in any jurisdiction, some States regulate brothels whilst others criminalize profiting from the prostitution of another person. Police investigations have shown that human trafficking in Australia is carried out by small but highly sophisticated organized crime networks. These frequently involve family and business connections between Australians and their overseas contacts. The majority of victims are from Southeast Asia or South Korea, with Thailand being the principal source of trafficked women. Many of the women have previously worked within the sex industry in Bangkok, Macau, Japan or Singapore. The women are often targeted by recruiters and promised employment in Australia. Some are aware they are in fact destined to perform work supplying sexual services – others are not. These women are most likely to enter Australia on a valid tourist or student visa, arranged by the traffickers or the traffickers’ agents. In some instances the victims are escorted during their travel to Australia to make sure they do not abscond. In other cases traffickers organize elderly couples to meet the women at the airport in order to avoid arousing the suspicion of immigration officials. Some women are also given airline tickets and money to make them appear like tourists. Usually, the funds, tickets and the women’s passports are confiscated by the traffickers or their associates after their arrival. In all of the cases we have prosecuted the women who are the victims of human traffickers do not know the details of the reality they face after arrival in Australia. Upon arrival in Australia the women will be declared by the trafficker to have incurred a ‘debt’ for the journey to Australia and their accommodation. They are required to work for the trafficker until the debt is repaid. Often this entails working 6 to 7 days a week, more than 10 hours per day over a period of between 6 and 18 months to repay the debt. The case of The Queen v Wei TangJump to in page footnote 1 at the bottom of this page both the legal and practical challenges involved in prosecuting a sexual slavery matter in Australia. In 2006 Wei Tang was the first person in Australia to be convicted of slavery offences. I will talk further about this case later.
In common with the offices of all my State and Territory DPP counterparts, my Office has no investigative functions and is solely a prosecution agency. The Office performs its prosecution functions independently of the Government of the day. This is also in keeping with the Australian pattern for prosecution agencies and our independence has been supported by each succeeding government since the Office was created in 1984. In addition to the Australian Federal Police, who investigate and refer breaches of Commonwealth law to us, a large number of other Commonwealth agencies have an investigating function as part of their remit. The Office receives briefs of evidence from a wide range of those agencies, some 40 in all over the last year. We prosecute through the various jurisdictional levels of the Court systems of the Australian States and Territories.
The Prosecution Policy of the Commonwealth
We operate under the Prosecution Policy of the Commonwealth, in which a two-stage test must be satisfied before prosecution can be commenced:
- there must be sufficient evidence to prosecute the case; and
- it must be evident from the facts of the case, and all the surrounding circumstances, that the prosecution would be in the public interest.
In determining whether there is sufficient evidence to prosecute a case, the prosecutor must be satisfied both that there is a prima facie case and a reasonable prospect of obtaining a conviction. A further guiding statement of principle in the policy is that the decision to prosecute must be made impartially and must not be influenced by any inappropriate reference to race, religion, sex, national origin or political association. The decision must not be influenced by any political advantage or disadvantage to the Government. The Directors of Public Prosecutions for the Australian States and Territories all adhere to similar documents, each embodying the same fundamental prosecution tests.
Returning to the case of Wei Tang, it might be useful to provide some detail about this case to illustrate the challenges we have experienced in the area of human trafficking and the principles that have emerged from related appellate jurisprudence as it develops in Australia. The case involved five Thai women who were brought to Australia to work in a brothel in the State of Victoria. The brothel was owned by the defendant, Wei Tang. Each woman entered into an agreement in Thailand to come to Australia to work in the sex industry. Their agreements required them to incur a debt of between $35,000 and $45,000 AUD which they would pay off by servicing clients of the brothel. Upon arrival in Australia, the women’s passports were confiscated and kept at the brothel, and restrictions were placed on their freedom of movement whilst they were repaying their debts. The women were required to work at the brothel 6 days a week, earning $110 for each client. Of that $110, $50 was deducted from the debt and the remainder of the proceeds went to the brothel. The women were given the option of working on their ‘free’ day and retaining the $50 per client – but only on that day. Whilst under ‘contract’ each woman was required to work in the defendant’s brothel six days per week, serving up to 900 customers over a period of 4-6 months. Each woman had very little, if any, money upon their arrival. Each spoke little, if any, English and knew no-one. There was also evidence regarding the restrictions placed upon their movements; demands placed upon them as to the numbers of clients they were required to service; the days and hours they were required to work; and the fact that they were required to work regardless of illness or a desire not to perform certain acts or service particular clients. The defendant was charged with 5 counts of intentionally possessing a slave and 5 counts of intentionally exercising over a slave a power attaching to the right of ownership, namely the power to use, contrary to the Criminal Code. In June 2006 following a trial before a judge and jury in the Victorian County Court, the defendant was convicted on all counts. She was sentenced to 10 years imprisonment with a non-parole period of 6 years. The defendant then appealed to the Victorian Court of Appeal. In June 2007 the Court of Appeal held that the trial Judge’s directions on the fault elements of the offences to be proved by the prosecution were inadequate and ordered a re-trial. In December 2007 my Office was granted special leave by the High Court of Australia to appeal in that Court against the decision of the Victorian Court of Appeal. The defendant Tang also sought to appeal against the order for a new trial, saying that she should have been acquitted of the charges. In the High Court my Office was ably represented by Wendy Abraham QC. The Court heard the appeal in May 2008 and gave a decision 3 months later. By a 6-1 majority, the High Court overturned the order of the Victorian Court of Appeal for a new trial and reinstated the defendant’s convictions. The High Court held that the prosecution had established the required elements of the offences. The prosecution did not need to prove that she knew or believed that the women were slaves. The critical matters were the powers exercised over the victims, specifically:
- the power to make each woman an object of purchase;
- the capacity to use the women in a substantially unrestricted manner for the duration of their ‘contracts’;
- the power to control and restrict their movements; and
- the power to use their services without commensurate compensation.
It can be seen that these powers constitute a qualitatively different situation to what would otherwise be essentially an oppressive employment relationship. This distinction was the subject of considerable argument and is an important aspect of the decision. Interestingly, the High Court also considered the Constitutional validity of the slavery offence contained in the Criminal Code. It held that, the Commonwealth Parliament’s power to enact laws with respect to external affairs, extended to enacting domestic law that implements Australia’s obligations as a signatory to the Slavery Convention. I should point out that the greater part of what I might describe as the conventional domestic criminal law remains the province of the State and Territory Parliaments. The Commonwealth Parliament has no broad Constitutional power to pass criminal statutes without a federal connection. In this case that is to be found in the national government’s exclusive Constitutional power to make treaties. The Court also refused Ms Tang’s own claim for appellate relief, which she had based on an assertion that the jury’s verdicts were unreasonable or could not be supported by the evidence (that being the classic ground of challenge to a jury’s verdict in our jurisprudence). The High Court returned one aspect of Ms Tang’s own appeal, that being her complaint as to sentence, to the Victorian Court of Appeal for reconsideration. In August 2009 the Court of Appeal reduced the defendant’s sentence from 10 years imprisonment with 6 years to be served before eligibility for release to a total term of 9 years imprisonment with a non-parole period of 5 years before eligibility for release. In making the decision to reduce the defendant’s sentence, the Court of Appeal considered:
- that the defendant had effectively been punished twice for each count of ‘possessing a slave’ and ‘using a slave’;
- the prosecution appeal to the High Court had caused the defendant additional hardship; and
- the change in the defendant’s health since the original sentence.
The case of Wei Tang, not only represents my Office’s three year journey with what was then our first conviction for a slavery matter, but also highlighted to us the many challenges that can arise in prosecuting a matter of this nature. It seems thatcentral problems in identifying and effectively confronting human trafficking in our experience are:
- the illegal and clandestine nature of the activity;
- bridging cultural and linguistic barriers to trust between prosecuting authorities and victims;
- not uncommonly, a related lack of co-operation of victims and witnesses with government authorities;
- sometimes a quality of ambivalence or ambiguity in the nature of relationships between trafficker, trafficker client and victim; and
- the shame and stigma felt by victims and attaching to prostitution and other aspects of human trafficking.
In light of such factors as these, commentators in Australia have said that it is therefore important that any strategy designed to prevent, disrupt, and suppress trafficking in persons, actively assists victims and witnesses throughout the investigative and legal processes, and removes common stereotypes, preconceptions, and prejudices.Jump to in page footnote 2 at the bottom of this page It has certainly been our experience that the practical challenges involved in prosecuting these matters are considerable. A key challenge is supporting the victim and Australia has established specialized victim support for this area. Victims need to be supported whilst in Australia during the investigation and prosecution of matters. If they return to their home country during this process, they are required to travel to Australia to give evidence. This may need to occur more than once, for example for any pre-trial hearing, trial or retrial should that arise. In our limited experience, with 11 convictions to date, we have recognized that practical support requires co-ordination between a number of government agencies and that a number of practical issues need to be addressed. One immediate issue is addressed by utilizing Australia’s system of criminal justice visas, to secure the temporary immigration status of foreign nationals brought into Australia as prosecution witnesses. These cases have also required the prosecution to deal with witness issues such as arranging and providing for support for the victim’s family in the victim’s home country and support persons travelling with the victim to Australia. It should be recognized that victims often have limited English requiring interpreters in Australia; come from relatively unsophisticated backgrounds; and have been exposed to traumatic experiences. Given all of these factors these victims of sexual exploitation require specialized and ongoing support, often for lengthy periods, to enable them to effectively participate in our criminal justice system. The Australian Government has more recently increased its efforts to provide protection and care to victims of trafficking by ensuring that victims can access support services regardless of whether they assist police with an investigation or prosecution. We have also found that as a result of the shame and stigma that is attached to prostitution, victims may provide a number of different versions of the truth in order to shield their families from the reality of their life in Australia. This presents difficulties to the prosecution in presenting credible, admissible and reliable evidence to the court at trial. It is critical for juries to be brought to an understanding of the context in which the victims have been exploited and how they have responded to investigating authorities. A further challenge that requires the most careful consideration is the frequently encountered issue of whether or not as Director I should grant immunity to accomplices or potential accomplices with a view of relying upon their evidence. This requires weighing of a complex matrix of factors which include the role and relative level of complicity of such persons, the value of their evidence in the whole case and, of course, arising from all these factors a primary duty to maintain respect for and confidence in the proper administration of criminal justice.
As I have indicated, we are relative newcomers to this area of prosecution. Its international nature poses particular challenges for our prosecutors. The developing Australian response to human trafficking has been one that has involved the whole of government, embracing a national policing strategy with specialist police investigation teams, a victim support program, which includes long-term residence and care for foreign victims, and extensive co-operation within our region. Thank you for the opportunity to share some of our recent experiences with you, I trust it will be of some interest to this distinguished audience.