REPORT OF THE PORTFOLIO COMMITTEE ON SAFETY AND SECURITY ON THE STUDY TOUR TO AUSTRALIA 30 NOVEMBER – 10 DECEMBER 2006

INDEX

1. INTRODUCTION

2. DELEGATION

3. PURPOSE OF THE VISIT

4. MEETING WITH THE INTERNATIONAL ORGANISATION FOR MIGRATION (IOM)

4.1 Background information on the IOM
4.2 IOM role in Australia

5. MEETING WITH THE CHAIRPERSON AND MEMBERS OF THE SENATE STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

5.1 United Nations Protocol
5.2 Legislation
5.2.1 Slavery and sexual servitude offences
5.2.2 Trafficking in Persons offences
5.2.3 Debt bondage offences
5.3 Regional Cooperation: Prevention and Information Exchange
5.4 Aid

6. MEETING WITH THE ATTORNEY GENERAL OFFICE

6.1 Investigations
6.1.1 Policing of Trafficking offences
6.1.2 Visa regime for victims of trafficking
6.2 Prosecutions
6.3 Victim Support
6.4 Prevention

7. MEETING WITH PROJECT RESPECT

7.1 The Number of Woman trafficked to Australia
7.2 Services offered to woman

8. MEETING WITH COALITION AGAINST TRAFFICKING IN WOMEN AUSTRALIA

8.1 The legalisation of brothel prostitution leads to the expansion of the industry
8.2 The growth of organised crime
8.3 Opportunities for police corruption

9. LESSONS AND RECOMMENDATIONS FOR SOUTH AFRICA

9.1 For the Portfolio Committee on Safety and Security
9.2 In the area of legislation
9.3 In the area of investigations
9.4 In the area of prosecutions
9.5 In the area of victim support
9.6 In the area of prevention
10. CONCLUSION
The Portfolio Committee on Safety and Security, having undertaken a study tour to Australia from 30 November – 10 December 2006, reports as follows:

1. INTRODUCTION

South Africa is a source, transit and destination country for men, women and children trafficked for forced labour and sexual exploitation. While South Africa is considered to be mainly a country of destination for victims of trafficking from countries in Africa (including Mozambique, Angola, Zambia, Senegal, Kenya, Tanzania, Uganda, Ethiopia, Swaziland, Namibia, Botswana, Nigeria, Lesotho and Malawi), women and children are also trafficked from Eastern Europe and from South East Asia, (particularly from Thailand and Taiwan) for debt-bonded sexual exploitation. It is also a transit point for trafficking operations between developing countries and Europe, the United States and Canada, because it has direct flight and shipping routes to most countries in the developed world. South African women are trafficked internally and occasionally by organized crime syndicates to European and Asian countries for sexual exploitation. Men and boys are trafficked from neighbouring countries for forced agricultural labour.

The South African Law Reform Commission (SALRC) was tasked with investigating trafficking in persons, including children, with a view to making recommendations on legislation to address this issue. An Issue Paper on Trafficking in Persons was published for comment in January 2004 and a Discussion Paper setting out the Commissions preliminary recommendations and proposed draft legislation on trafficking was published for comment in 2006. The Discussion Paper explains that the Children’s Bill addresses certain aspects related to trafficking in children. However, these provisions will be repealed by their incorporation into the proposed trafficking legislation. The Criminal Law (sexual offences and related matters) Amendment Bill also contains provisions relating to trafficking for the purpose of sexual exploitation.

The Portfolio Committee on Safety and Security decided to visit Australia because the Committee recently passed legislation that specifically addressed human trafficking. In particular, the Committee was interested in gaining insight into the policing of human trafficking and other surrounding issues of implementation that have arisen subsequent to the legislation being passed.

2. DELEGATION

Ms M M Sotyu (Chairperson and delegation leader)
Mr S Mahote (ANC- MP)
Mr F T Maserumule (ANC - MP)
Ms A Van Wyk (ANC - MP)
Mr R King (DA- MP)
Mr V Ndlovu (IFP- MP)
Mr J Michaels (Committee Secretary
Ms N Dollie (Committee Researcher)

PURPOSE OF THE STUDY TOUR

To investigate and learn more about Australia’s Human Trafficking Legislation, policies and the implementation of such legislation

To look at the successes and challenges faced by the Australian Police, Justice and Immigrations officials regarding Human Trafficking

MEETING WITH THE INTERNATIONAL ORGANISATION FOR MIGRATION (IOM)

The delegation met with Mr K D Nihill at the Regional Office for Australia, New Zealand and the Pacific. The purpose was to get an understanding of the IOM’s role in assisting these countries with preventing human trafficking.

4.1 Background information on the IOM

Established in 1951, IOM is the leading inter-governmental organization in the field of migration and works closely with governmental, intergovernmental and nongovernmental partners.

With 120 member states, a further 19 states holding observer status and offices in over 100 countries, IOM is dedicated to promoting humane and orderly migration for the benefit of all. It does so by providing services and advice to governments and migrants. IOM works to help ensure the orderly and humane management of migration, to promote international co-operation on migration issues, to assist in the search for practical solutions to migration problems and to provide humanitarian assistance to migrants in need, including refugees and internally displaced people.

The IOM Constitution recognizes the link between migration and economic, social and cultural development, as well as to the right of freedom of movement.

IOM works in the four broad areas of migration management:
Migration and development
Facilitating migration
Regulating migration
Forced migration.

IOM activities that cut across these areas include the promotion of international migration law, policy debate and guidance, protection of migrants' rights, migration health and the gender dimension of migration.

4.2 IOM’s role in Australia

Australia arguably got the best resettlement programmes in the world. The focus in Australia for a long time has been on people smuggling rather than human trafficking.

At the request of the Government of Australia, IOM administers the off-shore processing centres in Nauru and Papua New Guinea for migrants in an irregular situation. In coordination with the relevant agencies of the Australian Government and host governments, who are responsible for the security of the facilities, IOM provides specific services in the management of the centers. Responsibilities cover arranging for the provision of food and water, power, sanitation, medical and healthcare and other identified special needs for the duration of the stay of the migrants at these centers.

Migrants who volunteer to return home are assisted by IOM in processing their travel documents, and travel arrangements made on their behalf to their country of origin. Reintegration assistance in cash is also provided.

In 2001 at the initiative of the Australian and Indonesian governments, the Bali process on people smuggling were put in place. A few weeks ago another workshop was held which focused more on human trafficking. It was found that Human Trafficking in Asian countries is common. While these Asian countries have good anti Human Trafficking Legislation, implementation remains a big problem. Both sexual servitude and forced labour were found to be the reasons for human trafficking between countries. Victims are lured under false pretense with promises of jobs in host countries only to find that they are kept hostage by perpetrators, who take away their travel documentation.

5. MEETING WITH THE CHAIRPERSON AND MEMBERS OF THE SENATE STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

The delegation met with the Standing Committee on Legal and Constitutional Affairs to gain an understanding on how legislation has assisted in combating human trafficking in Australia.

The Standing Committee on Legal and Constitutional Affairs deals with all Legislation referred to it by the Senate relating to the Portfolio of the Attorney-General, Ministry for Justice and Customs (which deals with Policing) and the Ministry for Immigration. The Standing Committee has a broad knowledge of the subject matter and on 10 March 2005 passed the Criminal Code Amendment (Trafficking in Persons Offences) Bill. The Standing Committee on Legal and Constitutional received 18 submissions on the Bill and held public hearings. The Committee draft a report with recommendations, adopted the report and tabled it in Parliament.

5.1 United Nations Protocol

The Bill is part of the Australian Government’s response to its commitment under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Woman and Children. The Protocol supplements the United Nations Convention against Transnational Organised Crime. The Protocol’s purpose is to prevent and combat trafficking in persons and facilitate international co-operation against such trafficking. It aims to maintain a balance between law enforcement and victim protection. The Trafficking Protocol came in force on 25 December 2003. At present, the Protocol has 117 signatories and 76 parties.

5.2 Legislation

Prior to 1999, there was no legislation in Australia that specifically addressed human trafficking. In addition, there was no strong understanding of the concept of human trafficking, and when human trafficking took place it was identified as a migration crime rather than a human rights violation.

In 1999, offences related to slavery and sexual servitude was inserted in the Commonwealth Criminal Code as part of a federal government initiative to remove the old imperial laws. These offences presumed that victims of these offences were totally deceived. In practice, many victims may have been aware that they were been brought to the country to work in the sex industry but may not have been aware of the conditions under which they were expected to work. However, trafficking continued to be seen as a migration offence and resulted, in most cases, in the removal of victims from raided brothels and their return to their country of origin. Often this meant that they were punished for not fulfilling their contractual obligations in their home country and were also susceptible to re-trafficking.

In 2003, there was an outcry in the media about the death of a Thai woman in a detention centre who had told the authorities that she was a victim of trafficking, but who had been ignored by these authorities. The Australian Government committed itself to a package of trafficking initiatives, which included the amendment of the legislation in line with the requirements of the UN Protocol. The Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 is the result of this decision.

The three main legislative amendments made in the Commonwealth Criminal Code to address the offence of human trafficking since 1999 were thus:

5.2.1. Slavery and sexual servitude offences

Slavery offences: These offences apply to all persons, regardless of whether the conduct occurs within or outside of Australia. The offences have a maximum penalty of 25 years imprisonment. It is an offence to possess a slave or exercise over a slave any of the other powers attached to the right of ownership, to engage in slave trading or to enter into any commercial transaction involving a slave. It is also an offence to exercise control or direction over, or to provide finance for slave trading or a commercial transaction involving a slave.

Deceptive recruiting for sexual services: It is an offence for a person to deceive another person about the fact that their employment or other engagement will involve the provision of sexual services. The offence also covers deception about the nature of the sexual services to be provided; the extent to which the person will be free to leave the place or area where the person provides sexual services; the extent to which the person will be free to cease providing sexual services; the extent to which the person will be free to leave his or her place of residence; if there is a debt owed or claimed to be owed- the existence of that debt; and the fact that the engagement to provide sexual services will involve exploitation, debt bondage or the confiscation of the person’s travel or identity documents. The penalty for this offence is 7 years. It is an aggravated offence if the offence was committed against a child under the age of 18 years and the maximum penalty in these cases is 9 years imprisonment.

Sexual servitude: It is an offence for a person to cause another person to enter into or remain in sexual servitude. Sexual servitude is defined as the condition of person who provides sexual services and who, because of the threat or use of force is not free to cease providing these services or leave the place or area where the person provides sexual services. The offence is punishable by a maximum penalty of 15 years imprisonment. If the offence is committed against a person under 18 years, it is an aggravated offence and the maximum penalty is 20 years.

5.2.2. Trafficking in Persons offences

The Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 inserted new offences in the Criminal Code that criminalises trafficking in person’s activity. The offences are not limited to trafficking that involves sexual slavery or sexual servitude. The trafficking in persons offences have a maximum penalty of 12 years, or for aggravated offences, 20 years imprisonment. The trafficking in children offences have a maximum penalty of 25 years. The offences apply to trafficking people into and out of Australia.

Key offences include:
Where the trafficker uses force or threats which result in obtaining the victims compliance to enter or exit Australia.

The trafficker is reckless about whether the person will be exploited.

The trafficker deceives the person about whether the person will provide sexual services, whether the person will be exploited (i.e. forced labour, sexual servitude, organ removal), debt bondage, confiscation of travel and identity documents.

There is an arrangement that the person provides sexual services and the trafficker deceives the person about some of the conditions of service they are providing (i.e. the nature of the sexual services, the extent to which the person will be free to stop providing services, etc)

Aggravated offences include subjecting victims to cruel, inhumane or degrading treatment or recklessness as to the danger of death or serious harm to the victim.

5.2.3 Debt bondage offences

The Act also inserted a new debt bondage offence. This prevents traffickers from using unfair debt contracts and other similar arrangements to coerce victims into providing personal services to pay off large ‘debts’, supposedly incurred because the trafficker has arranged the victims travel to a country or has organised employment and accommodation for the victim following their entry into the country. The debt bondage offence has a maximum penalty of 12 months imprisonment or 2 years imprisonment where the victim is under 18 years of age. The debt bondage offence provides an alternative offence in cases where it may be difficult to prove the commission of one of the more serious offences.

5.3 Regional Cooperation: Prevention and Information Exchange

The delegation was told that Australia is spearheading what is called the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime. The aim of this project is to strengthen bilateral and regional political and operational co-operation in the fight against people - smuggling and trafficking.

Over the past year a number of Bali process workshops and practical activities have been successfully undertaken, including workshops on:

Developing co-ordinated inter-agency National Action Plans to eradicate
trafficking in persons

Harmonizing anti-people trafficking legislation

Combating child-sex tourism

.Operationalising immigration intelligence, and

Victim support

The Bali process co-chairs, Indonesia and Australia, continue to work jointly with the Bali process coordinators, Thailand and New Zealand, as well as the International Organization for Migration, the UN High Commissioner of Refugees and other Bali process members on a forward program of activities in the area where Bali process members can best add value.

5.4 Aid

Australia support a number of aid projects in the Asia region that focus on regional cooperation and aim to reduce the number of trafficking victims, and improve the protection, recovery and reintegration of those who have been trafficked.

Asia Regional Trafficking in Persons Project (2006 -2011, $21Million)

The new Asia Regional Trafficking in Persons (ARTIP) Project will build on the achievements of the Asia Regional Co-operation to Prevent People Trafficking project. It will provide training and other support to law enforcement officials and agencies, judges and prosecutors and will enhance the exchange of information and co-operation throughout the region

Asia Regional Co-operation to prevent People Trafficking (2003 – 2006,
$12Million)

This project sought to strengthen regional co-operation and legal policy frameworks through identified Asian and China (Yunnan Province) national points of contract and building national capacity to more effectively prevent trafficking in women and children. Specialist anti-trafficking units were established within national law enforcement agencies in the four selected focus countries Burma, Cambodia, Lao PDR and Thailand. The project actively supported strategies to develop communication and collaboration between the various specialist anti-trafficking units across national borders.

6. MEETING WITH THE ATTORNEY- GENERAL’S OFFICE

The delegation met with the Attorney – General’s Department: Community Safety and Justice Branch. Representative of the following structures were present:
Australian Federal Police, National Coordinator People Smuggling and Human Trafficking Border & International

Department of Immigration and Multicultural Affairs, Director Cancellations and Trafficking

Department of Families, Community Services and Indigenous Affairs, Office for Women

Commonwealth Director of Public Prosecutions, Legal and Practice Management Branch

Australian Institute of Criminology, Transnational Crime

The Australian Government has been working to implement a $20million package of measures designed to combat people trafficking since 2003. An Action Plan was released on 17 June 2004 by five sponsoring Ministers ( the Attorney General, Minister for Foreign Affairs for Immigration and Multicultural Affairs, Minister Assisting the Prime Minister for Women’s Issues and the Minister for Justice and Customs) The aim was to implement its 2003 Action Plan to eradicate trafficking in persons. The main components of this Action Plan include:

The establishment of a new unit within the Australian Federal Police called
the Transnational Sexual Exploitation and Trafficking Team (TSETT).

New visa arrangements for trafficking victims

Victim support measures, including counselling and medical support
coordinated by the Office for the Status of Women (OSW).

Amendments to legislation. The Trafficking in Persons Act, No 96 of 2005
was designed to amend the Criminal Code to provide for offences related to
trafficking in persons. A noteworthy aspect of this legislation is that it defines
the crime of debt bondage.

6.1 Investigations

The key components to the investigation of human trafficking offences include the role of the police and a visa regime that allows offenders to remain in the country during investigation and prosecution processes.

6.1.1 Policing of Trafficking offences

The Australian Federal Police (AFP) has appointed permanent teams in most of the regions with the exception of Western Australia and the Australian Cenral Territory (ACT) to combat human trafficking. These Transnational Sexual Exploitation and Trafficking Teams (TSETT) have undertaken 116 investigations and assessments of allegations of trafficking-related offences since January 2004.

Over 100 members of the AFP have received training on human trafficking. The most important aspect of the training is its focus on the victim and the necessity of not exploiting the victim for the sake of a successful prosecution.

6.1.2 Visa regime for victims of trafficking

In January 2004, as part of the whole-of-governments strategy, the Department of
Immigration and Migration (DIMA) introduced a visa regime that enables suspected
victims of trafficking to remain in Australia, provided they assist or have assisted with an
investigation or prosecution. The visa regime consists of:

Bridging F Visa: This allows suspected victims of trafficking and witnesses to remain in the country for a period of 30 days during which time the AFP or State and Territory police assess whether the person is able to assist them in an investigation or prosecution. It also allows time for the person to decide whether they wish to continue assisting police.

Criminal Justice Stay (CJS) visa: The suspected victim may progress to this visa if the police require the person to stay in Australia to assist in the investigation, and if the person chooses to assist the police in the investigation or prosecution.

Witness Protection Trafficking visa: The holder of a CJS visa can be granted a Witness Protection (Trafficking) visa if they have significantly contributed to the investigation or prosecution, and they may be in danger if they return to their home country.

Between January 2004 and November 2006, 57 suspected victims of trafficking were granted Bridging F visas, 43 were granted CJS visas and 3 people were granted Witness Protection (Trafficking) visas.

6.2 Prosecutions

The Commonwealth Director of Public Prosecutions (CDPP) has primarily charged offenders with slavery and sexual servitude offences against Divisions 270 and 271 of the Criminal Code. A total of 23 prosecutions for offences against these Divisions have commenced. Four offenders have been convicted of slavery or sexual servitude offences.

According to the CDP a key challenge for the Department is that the usual ‘victim’ in Commonwealth matters is a Commonwealth government department that has been defrauded. In trafficking cases the victims are, however, human beings. There is also the problem of obtaining admissible and reliable evidence, given international constraints, language and cultural barriers. Victims are not always forthcoming in their dealing with the AFP and with the immigration authorities and may conceal information for a variety of reasons. During the trial process, the credibility and reliability of victims and witnesses is always an issue. At trial, victims are often accused by the defence of being motivated to give (false) evidence in order to remain in Australia. Some prosecutions have, therefore, resulted in hung juries and acquittals.

6.3 Victim Support

In Australia, the support for victims of People Trafficking Programme is co-ordinated by the Office for Women in the Department of Families, Community Services and Indigenous Affairs (FaCSIA). Victim support measures are only offered to trafficking victims who can and are willing to assist the AFP with the investigation and prosecution. Phase 1 victim support (during the 30 day period where F visa is granted), offers secure accommodation within close proximity to the AFP, a living allowance, a once off purchase of clothing and toiletries, access to medical aid and access to legal services.

Phase 2 benefits (provided to CJS visa holders) include rent assistance, assistance with securing longer term accommodation, a once-off amount for essential furniture, access to medical aid, access to legal services and access to employment and training, access to social support (including English language skills) and vocational guidance.

6.4 Prevention

Educational campaigns on trafficking in Australia are apparently targeted at the men who use prostitutes and conscientising them to identify where prostitutes may be performing prostitution under coercion. Some NGOs have stated that the focus should rather be on anti-prostitution than on education on trafficking.

The Department of Immigration and Migration is responsible for two areas in the arena of
prevention of trafficking. These are:

Establishment of a new Senior Migration Officer Compliance (Trafficking)
(SMOCT) position in Thailand. The person occupying this position is responsible
for focusing exclusively on human trafficking issues in the South East Asia
Region and aims to stop trafficking at its source. This official is responsible for
analysing trends in the visa processing caseload and working together with the
AFP.

Proactively identifying suspected victims of trafficking and referring matters to
the AFP. A number of departmental staff located in the States and Territories have
been provided with training to identify possible indicators of trafficking. When
potential victims are identified they are referred to the AFP for assessment.
Between 1999 and 2006, 180 matters were referred to the AFP for assessment.

7. MEETING WITH PROJECT RESPECT

Project Respect is an Australian non-government organisation which challenges exploitation of and violence against women in the sex industry. Project Respect was established in 1998 to work with women and girls in the sex industry. It conducts outreach and offer services to women in brothels especially where there is a high concentration of women from non-English speaking backgrounds.

Project Respect in particular focus on women trafficked to Australia for prostitution, and other women experiencing harm and violence within the sex industry. Complementing direct services, it undertakes advocacy and public education, and collaborates closely with partners in trafficking 'sending countries', particularly in the Asia-Pacific.

7.1 The number of women trafficked to Australia

Project Respect estimates that there are up to 1,000 women in Australia under contract at any one time. This refers to women still paying off a 'debt' and does not include women who have finished their 'debt' but remain in Australia.

However, the number of women trafficked for prostitution to Australia is difficult to estimate for four main reasons. Firstly, trafficking is illegal and therefore may occur undetected. Secondly, victims of trafficking may be unwilling to speak about being trafficked either because they fear retribution from traffickers, are traumatised by the experience, or, and this was common in the past, they had bad experiences of DIMIA or the AFP and so didn't think anything good would come from talking. Thirdly, there has until recently been a lack of cooperation with agencies that may know of trafficked women, and who could calculate the number of trafficked women in Australia. Finally, until recently, there was no clear mandate for any specific government organisation to actually go out and count.

In the absence of firm figures around numbers, however, estimates about the scale of trafficking, in human and dollar terms, have and can be made, including estimates related to police operations in Sydney in the mid-1990s, a case in Melbourne in the late 1990s, and those presented by the government when it introduced the 1999 Slavery and Sexual Servitude Act.

Adding to these, Project Respect has made estimates based on a range of other information, including statistics from the Refugee Review Tribunal, Department of Immigration removal statistics, sex industry estimates, observations in brothels etc. Most women trafficked to Australia are from South East Asia and China, however there are also indications that women are at times trafficked from Europe and Latin America. The majority of women trafficked to Australia in recent times appear to be Thai women.

7.2 Services offered to women

The core of Project Respect's work is direct contact with women in the sex industry through outreach programmes to brothels in a number of local government areas of Melbourne. Women's ability to access mainstream services is limited because they often experience discrimination, social isolation and stigmatisation.

Outreach programme offered to women in brothels are as follows:

Information kits with up to date information about services such as housing ,
health, legal, migration, financial, sexual assault and domestic violence are
continually maintained with each brothel visit

Referrals are made to support services for women through Project Respect's
network of organizations

Monthly newsletters for women in the sex industry

Special edition newsletters highlighting particular issues of concern for women,
e.g. domestic violence and intervention orders

One to one support is available for women in the sex industry who may have to
attend court

One to one support in a multiple of other situations

Support for women's children through a programme design specifically for
childres

Opportunities for English classes

Education and employment pathways for women who wish to leave the sex
industry

8. MEETING WITH COALITION AGAINST TRAFFICKING IN WOMEN AUSTRALIA

The Coalition Against Trafficking in Women (CATW) is a non-governmental organization that promotes women's human rights by working internationally to combat sexual exploitation in all its forms. Founded in 1988, CATW was the first international non-governmental organization to focus on human trafficking, especially sex trafficking of women and girls. CATW has regional networks in Asia, Latin America, Europe, Africa and Australia. CATW obtained Category II consultative status with the United Nations Economic and Social Council in 1989.

In the rapidly increasing surge in trafficking in women in the late twentieth century there has been an attempt to separate the issue of trafficking from that of prostitution by some governments and non-governmental organizations. This has been approached through the creation of a forced/free distinction. Trafficking is represented as requiring explicit force and lack of consent. Prostitution in which no force is obvious is considered to be ‘free’ and frequently represented as ordinary ‘work’ or even as the exercise of women’s ‘choice’.

8.1 The legalisation of brothel prostitution leads to the expansion of the
industry

Legalisation and decriminalisation lead to the growth of the industry of prostitution. The financial pages in this country cover the profits to be made from investing in prostitution. The annual turnover of Australia’s sex industry was said in 1998 in a financial analysis in The Age newspaper, to have an estimated annual turnover of $A1.2 billion. In Melbourne, in which men’s prostitution abuse of women has been normalised since legalisation of brothels in 1984, it was estimated that by 1998 60,000 men bought women for sex in Melbourne brothels each week. As an indication of the growth and development of the industry, the Daily Planet brothel was launched on the Australian Stock Exchange in 2003 and has plans to set up franchises internationally.

The traffic in women to supply the legal and illegal brothels is an inevitable result of legalisation. Prostitution industry entrepreneurs find it hard to source women locally to supply an expanding industry and trafficked women are more vulnerable and more profitable. Trafficked women are placed in both illegal and legal brothels in Australia. They can work legally in legal brothels with work permits if the traffickers apply on their behalf for refugee status.

The 2000 Protocol on Trafficking in Persons of the UN Convention on Organised Crime recognises the connection between trafficking in women and prostitution. It calls upon states’ parties to put in place strategies to reduce the demand for prostitution. The legalisation of brothel prostitution, CATWA suggests, specifically creates the demand. As the prostitution industry grows, so brothel owners require trafficked women to meet the demand.

This has happened in those European cities where brothel prostitution has been tolerated or legalised in recent times. In Amsterdam, where brothel prostitution was formally legalised in 2000, owners are only allowed to employ women with EU residency who are registered to work as prostitutes. Brothel owners are complaining loudly that they have lost the majority of their workers and cannot begin to meet the demand (Rapporteur’s Report on Trafficking into the Netherlands 2002). Moreover eligible women are being frightened off by requirements that prostituted women be identified and that the tax authorities need to be informed. Thus there are pressures to create ‘legal and controlled access to the Dutch market’ for those currently classified as ‘illegals’ and lift the temporary ban on ‘illegals’. The idea that there should be ‘legal’ trafficking in response to an increased demand is in complete contradiction to the requirements of the 2000 Optional Protocol.

A 2003 report from Europe (European Network for HIV-STD Prevention in Prostitution) estimates that well over half of all prostituted women in the EU were not born in the country where they work, a figure which has doubled since 1990. Of these, three-quarters have travelled from outside the EU; ‘Trafficking volume is soaring in Europe, impelled by increasing demand for prostitution in the EU, the rise of organized crime in Eastern Europe, and the desperation of the migrant women themselves’ (David Stewart Organised crime is flooding Europe with migrant sex workers. Time Magazine October 20, 2003 | Vol. 162 No. 15). The decriminalisation of pimping and procuring in Spain in 1995 is now understood to have led to a huge increase in trafficking, 90% of the 50,000 prostituted women in Madrid are estimated to be immigrants, of whom 70% are in sex slavery. As these figures show it is becoming less and less tenable to make a distinction between trafficking and prostitution.

8.2 The growth of organised crime

As the industry expands, so does the organised crime associated with it. These organized crime networks are involved in the trafficking of women. The desire to contain organized crime was the most significant underlying reason for legalisation in Victoria. This is one area in which legalisation is spectacularly unsuccessful. Where legalisation is introduced there is always an illegal sector which is considerably larger than the legal sector. In Victoria estimates from the police and the legal brothel industry put the number of illegal brothels at 400, four times more than the legal ones (Murphy, Padraic 2002: Licensed brothels call for blitz on illegal sex shops. The Age 3 June). Victoria, Australian Central Territory (ACT) and Queensland require police checks on prospective brothel owners to make sure that they do not have criminal offences on their records. But such checks are not necessarily effective. In some cases, it seems, brothel owners may just be members of organized crime families who do not have offences to their names. In other cases men with criminal convictions can effectively run legal brothels, whilst not being the official owners, through the use of fronts people or front organisations. Legalisation leads to the suspension of police intervention in prostitution and provides a vacuum in which organised crime can flourish.

Organised crime involvement in prostitution arises from the fact that prostitution relies upon the exploitation of vulnerability, and is not like other forms of work. The ‘workers’, women, girls and boys, can be ‘used’ even if they are tied up or unconscious. The bodies of the ‘workers’ are the objects ‘used’ and their personhood can be an obstacle in the exchange. Thus the buying and selling of these bodies is an enticing possibility for organised crime networks that might find it harder to exploit forms of labour in which the workers were required to be more than bodies. Consequently trafficking and other forms of violence are not aberrations that can be removed from a respectable ‘free’ prostitution industry, but integral elements of prostitution historically and in the present.

8.3 Opportunities for police corruption

Though the ending of police corruption and involvement in the industry of prostitution is commonly given as a reason to legalise and regulate prostitution, corruption continues. In two states royal commissions have been held to investigate the problem of police corruption with particular reference to prostitution. These are the Fitzgerald Inquiry in Queensland (1989) and the Wood Commission in New South Wales (1997). The Bracks Labour government in Victoria promised on taking office for the first time that there would be such an inquiry but it has not taken place. There is evidence for the corruption of police, the magistracy, the judiciary, lawyers and politicians in relation to prostitution in some published sources and in the Royal Commission reports (Hoser, Raymond, Victoria Police Corruption, 1999; Bottom, Bob, The Godfather in Australia, 1988). Police corruption, which seems endemic to prostitution, enables the organised crime and trafficking networks to operate safely.

9. LESSONS AND RECOMMENDATIONS FOR SOUTH AFRICA

The following are some of the key lessons that can be learnt from the Australian experience in implementing initiatives to combat human trafficking and the recommendations arising from these lessons:

9.1 For the Portfolio Committee on Safety and Security

The Portfolio Committee on Safety and Security should:
Ensure that they keep up to date on developments pertaining to the SALRC draft bill on trafficking.

Participate actively in the public hearings on the bill when it is submitted to the Portfolio Committee on Justice and Constitutional Affairs in Parliament.

Ensure that the lessons arising from this visit, especially those pertaining to the policing of human trafficking are relayed to the Portfolio Committee on Justice and Constitutional Affairs.

Ensure that the bill is accompanied by a costing document setting out the costs involved in implementing the legislation, and monitor the extent to which funds are later made available to implement the Act, particularly with regard to the policing of the legislation.

Meet with the SAPS on current and envisaged plans to combat human trafficking more effectively.

Monitor implementation by the SAPS of the Act, once it is passed. This should include the monitoring of international and regional agreements, and training initiatives.

9.2 In the area of legislation:

The South African legislation should address the issue of reducing demand. An important provision which has been included in the SALRC draft Bill ensures that buyers of the services of victims of trafficking will be guilty of an offence. This is in stark contrast to the Australian legislation and should be supported.

The approach which creates lesser offences should be followed, (as it is generally done), in the South African legislation on human trafficking.

The South African legislation should include the separate offence of debt bondage as currently contained in the SALRC draft bill. The Australian penalty for this offence of 12 months has, however, been criticised for being too low and the South African penalty for this offence should be higher.

The legislation should include financial penalties against brothel owners. The SALRC draft bill provides for the payment of compensation to victims by anyone found guilty of an offence according to the legislation as well as compensation of any other expenses incurred by the State in connection with the care, accommodation, transportation and repatriation of the victim. This should be supported.

The South African legislation should provide for more proactive preventative and other measures to identify suspected trafficking victims. The SALRC draft bill does make provision for mandatory reporting by certain people of suspected victims of trafficking by persons such as immigration officials, labour inspectors and social workers, and for a screening mechanism for identifying potential victims.

The legislation must be premised on the protection of women as a human rights issue rather than a criminal justice issue. This entails the de-linking of visas and victim support services from participation in criminal prosecution.

Higher penalties should be included in the South African legislation for the trafficking of children.

9.3 In the area of investigations:

Training for the police on human trafficking must include a compassionate victim-centred approach which identifies the exploitative relationships involved in the offence and which stresses the need to secure witness co-operation as the investigation will involve conflicting witness accounts rather than ‘hard evidence’

The training should include simulations and other innovative training techniques, which alert the police to the human factors involved in human trafficking, in particular the vulnerability of the victim and the nuances of exploitation.

Use should be made in the training of people working in the sex industry so that officers can understand complex issues such as freedom of choice, dependence, debt bondage and cultural norms and differentiate between sex workers and people involved in exploitative relationships.

In the light of the importance of training of police officials, the first option highlighted in the SALRC draft bill which inserts the responsibility for the training of police officials in the Bill is supported, rather than leaving the issue of training as a South African Police Service (SAPS) policy issue.

Regional and international collaboration by the police is important (which should be formalised in agreements) as the investigation may require concurrent investigations in the ‘home country’.

Depending on the scale of the problem in South Africa, permanent specialized teams can be used and shifted to where the need arises. There is a need to investigate more thoroughly the extent of the problem in South Africa.

All police officers and not only those tasked as specialists in human trafficking should receive some form of training on human trafficking. It is likely that in many cases it is these police officers that will come into first contact with traffickers or victims during raids on brothels and other workplaces.

It is important that the offences are clearly defined within the legislation as this provides guidance to the police with regard to the collection of evidence and the route of the investigation.

There are clearly some problems in automatically allowing all victims to receive special visas as the concern is that this may lead to an avalanche of illegitimate requests for visas. However it also seems unfair to limit visas to victims based on whether the police feel that they offer sufficient information to assist an investigation and prosecution. A balance between these two approaches should be strived for. The approach of the SALRC where it specifically recommends that a non-renewable 60-day visa should be granted to all victims of trafficking irrespective of whether they co-operate with law enforcement and prosecuting authorities in the investigation and prosecution of a case of trafficking in persons should be supported. In the light of the Australian experience it may be noted that while the 60-day period identified by the SALRC report is longer than that granted to victims under Australian law, it may not be sufficient time to ensure the trust and co-operation of victims in later investigation processes and some thought could be given to extending this period a little longer, to 90 days.

Support services to victims should not be linked to participation in investigations and prosecutions processes. All victims of trafficking should receive some form of support, particularly access to counselling services and alternative shelter where necessary. The recommendation of the SALRC is that a visitor’s permit should be given to adult victims after the expiration of the non-renewable 60-day period only if they agree to co-operate in an investigation and prosecution process. All victims should be given the same option of temporary visas even if they are not instrumental for investigation purposes, specifically if they are willing to participate in these processes.

9.4. In the area of prosecutions:

Human trafficking cases related to sexual exploitation could be heard in the specialised sexual offences courts and an effort should be made to ensure that all prosecutors and magistrates attached to these courts receive the appropriate training to deal with human trafficking cases. Translation services are essential both in the court and during the investigation. It should be noted that the SALRC draft bill stipulates training for police officials and immigration officials on human trafficking but not for prosecutors and members of the legal fraternity. In the light of the Australian experience it is suggested that if the training issue for police and Home Affairs officials is included in the bill the same should apply to people prosecuting and hearing such cases.

The National Prosecuting Authority should work very closely with the police during the investigation phase in order to increase the chance of prosecution in these difficult cases. Successful prosecutions rely on the witness credibility, sufficient evidence and the availability of witnesses. All of these factors are compromised in cases of this nature. It is vital to acknowledge this problem from the outset and ensure that processes are in place to address these concerns by, for example, ensuring those prosecutors and the police are trained to provide compassionate assistance to victims who may thus be more forthcoming during investigations.

Decisions on prosecution may take several months and it is, thus, vital to have adequate victim support services during this period.

9.5 In the area of victim support:

It is important to ensure effective collaboration in the provision of services by government and recognised NGO’s with expertise in the various areas. The suggestion included in the SALRC draft bill is that either special centres for victims of trafficking are established for adult victims of trafficking which will provide a range of care and support services to these victims or alternatively that organisation are accredited with providing these services. In the light of the Australian experience it may be recommended that the second option is supported and that the expertise and knowledge of organisations working in the area is utilised to maximum effect rather than stipulating that government is responsible for the services. These organisations could then receive funding from government.

It would be important to balance the provision of support to all victims irrespective of their deemed usefulness in a criminal prosecution.

9.6 In the area of prevention:
Proactive identification of potential victims may be slightly easier in South Africa, where there is no legal prostitution, but it is still extremely difficult. Training for immigration authorities on identifying potential trafficking victims should assist immigration officials in this task but it must be acknowledged that there are inherent problems which may not be easily overcome in this pro-active process. The SALRC draft bill provides for the establishment of a screening mechanism for use by immigration officials and law enforcement officials developed by the Minister of Home Affairs in consultation with the Ministers of Justice and Safety and Security, to determine whether persons travelling from South Africa to identified countries of destination or to South Africa from identified counties of origin may be victims of trafficking. In the light of the difficulties faced by Australian immigration officials in this process, implementation of this screening process in South Africa should be closely monitored.

More effective may be emulating the approach of Australia (that is the SMOCT positions) whereby immigration officials are sent to neighbouring countries or to countries which have been identified as key source countries for human trafficking to South Africa, to proactively identify trends and patterns in the visa processing caseload in order to make recommendations to curtail trafficking at the source.

The SALRC draft bill specifically includes a chapter on prevention and public awareness programmes to educate persons at risk of becoming victims of trafficking, educate victims of trafficking of their rights and channels for assistance and to discourage the demand that fosters the exploitation of victims of trafficking. It also includes a biannual review measure to access effectiveness. This is clearly an improvement on the Australian legislation and should be supported, but implementation should be closely monitored, particularly related to the focus on the reduction of demand.

10. CONCLUSION

In conclusion, it is clear that the Australian approach to combating human trafficking has a number of strengths and weaknesses. Both these strengths as well as the weaknesses have provided some insight to the Committee members on how to most effectively address the legislative and implementation issues around human trafficking in South Africa. The Committee has the responsibility of ensuring that this information is channeled to other relevant role-players in order to meaningfully assist in the development of implementable legislation around human trafficking.

Report to be considered.