Routledge Handbook of Human Trafficking

by Piotrowicz, Ryszard; Rijken, Conny; Uhl, Baerbel Heide

  THB is closely related to other forms of organised crime. To that extent, the majority of the Pacific States have been developing strategies to combat organised crime by implementing various programmes to comply with global anti-money laundering (AML) and counter terrorist financing (CTF) standards, in particular as part of the Asia/Pacific Group (APG) on Money Laundering.80

  In 2010, the APG conducted a scoping study for the region, ‘People Smuggling, People Trafficking, Money Laundering and Criminal Asset Confiscation’, to explore the legal framework and the use of anti-money laundering and asset confiscation systems in countering migrant smuggling and THB amongst their members. The findings of this study indicate that the trans-national nature of THB requires multi-jurisdictional responses, and it also highlighted the need for international cooperation by way of mutual assistance.81 Further, the Financial Action Task Force82 observed in its 2011 report on people smuggling and THB that large-scale trafficking and smuggling operations are most likely to be organised in a network structure, and as organised crime groups aim for profit maximisation they tend to engage in activities and ‘select their operation territory according to what is most profitable’.83 THB continues to be seen by criminals as ‘low risk–high reward’ crime, where substantial profits can be made without much risk of being prosecuted.84 In Australasia, including Australia, profits generated from illegal activities tend to be co-mingled with legitimate business proceeds and funds transferred by using both formal and informal banking systems.85 Effective responses thus require good coordination efforts between the different agencies as well as in combating the different forms of transnational organised crime, including trafficking in people, drugs, arms, and wildlife; and the Pacific region remains attractive to transnational crime networks.86

  Conclusions

  Anti-trafficking strategies in the Pacific region vary, as not all countries are exposed to the same level or forms of THB. Developing countries undoubtedly face more challenges in developing comprehensive mechanisms and means of detecting and identifying cases of THB, which necessitates cooperation and coordination of action and efforts at the regional level. Australasia is a good example of the need for, and benefits from, a range of bilateral, regional, and sub-regional programmes. The Bali Process in particular has been instrumental in building political support in the region to adopt coordinated approaches, capacity-building, and increasingly effective collaborations between the different national bodies and agencies involved in addressing THB.87 The main benefits of regional cooperation are in engendering measures that are more likely to be context-specific, allowing for cultural idiosyncrasies affecting the patterns and forms of trafficking, and thus leading to more targeted responses.

  Lessons learnt in the Pacific region are that effective coordination between the multi-stakeholders requires specialist training and education of immigration officers and all others involved in tackling THB, as well as awareness-raising of the general public to support law enforcement efforts. Undoubtedly, Australia plays an important role in influencing the development of anti-trafficking policies and strategies in the region, which was also part of Australia’s commitment to support other countries in the region at the time of its ratification of the Palermo Protocol.88 Australia has one of the most comprehensive anti-THB strategies in the region, but implementation may be problematic, not least because anti-trafficking responses require, and rely on, cooperation from third States.

  Effective responses to THB require also examining the close link between THB and migration in general, and irregular migration in particular. Australasia, along with the rest of Asia, has been experiencing an increase in irregular migration, and this trend will most likely continue, also due to recurring natural disasters and the disastrous impact of climate change. Irregular migration and THB should be considered as mutually reinforcing, as irregular migrants, including smuggled persons, are particularly vulnerable to trafficking and debt bondage,89 and often the routes used by smugglers and traffickers are the same. Often though, there is a lack of understanding or inability of law enforcement agencies to recognise and distinguish between the victims of trafficking and irregular migrants due to similarities and partial overlap between both phenomena. Encouragingly, though, positive steps have been taken at the regional and national levels in the Pacific region, both in the legislative space and in practice, to recognise and account for these differences.

  As it is experienced in the region, the nexus between migration and THB should be considered also as a broader issue of development, rather than as exclusively a national security concern.90 Globalisation has increased the demand for cheap or seasonal labour, driving the production costs down and consequently increasing labour exploitation, including THB. On the other end of the spectrum, economic and other inequalities benefit the supply side of THB and other forms of exploitation. Flows of labour migration in the Pacific region follow this pattern and, unsurprisingly, migratory movements are mostly from lower-income countries to countries and areas offering higher wage opportunities and also experiencing low-skilled labour shortages. THB is a complex socio-economic issue fuelled by the supply-demand chain and driven by economic models to maximise the profits of the traffickers, making it a ‘monopolistically competitive industry’.91

  Further, THB requires consideration also as a gendered problem; in countries with higher gender inequalities (whether in relation to economic, political, or social participation), the incidence of THB, in particular of women and children, tends to be much higher.92 Certain cultural practices increase the vulnerability of girls and women to trafficking, including lower status afforded to girls,93 billeting of children,94 informal adoption and fostering practices within familial networks, and early marriage (e.g. as young as 12 or 13 under Solomon Islands customary law)95 or trading of daughters for cash or other commodities (e.g. the custom of ‘bride price’ in PNG96 or ‘logging brides’ in the Solomon Islands).97 Human trafficking thus needs to be considered not only as economically but also socially constructed.

  Effective coordinated regional mechanisms that build upon and complement international and national standards are essential to tackling THB, and regional consultative processes on international migration have been increasing worldwide.98 In Australasia, despite ongoing challenges, modest steps towards more integrated approaches have been taken through a number of programmes of collaboration and mutual support to implement practical measures to mitigate the negative impacts of people smuggling and trafficking in the region. Even though more could be expected, including towards more legally binding and enforceable commitments,99 the attempts so far should not be underestimated, especially in a region with such significant political, social, cultural, economic, and legal differences.

  Notes

  1 International Labour Organization, Global Estimates of Forced Labour: Research and Methodology (Geneva: ILO, 2012).

  2 The Walk Free Foundation, The Global Slavery Index (2nd edition, Australia, 2014), p. 33.

  3 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (United Nations, 2237 Treaty Series 319; Doc. A/55/383, 2000).

  4 The Pacific Islands region is made up of 17 sovereign nations and five non self-governing (or non-decolonialised) territories, with each nation or territory consisting of many islands, including Fiji, Guam, the Marshall Islands, New Caledonia, the Northern Mariana Islands, Palau, Papua New Guinea, Samoa, the Solomon Islands, Tonga, and Vanuatu.

  5 Global Report on Trafficking in Persons 2014 (United Nations publication, Sales No. E.14.V.10, 2014), p. 78.

  6 Ibid.

  7 Australia Attorney-General’s Department website, Human Trafficking, www.ag.gov.au/CrimeAndCorruption/HumanTrafficking/Pages/default.aspx; see also Larsen, J.J., Renshaw, L., Gray-Barry, S., Andrevski, H., and Corsbie, T., Trafficking in Persons Monitoring Report: January 2009–June 2011, Monitoring Report No. 19 (Canberra: Australian Institute of Criminology, June 2012).

 
; 8 Interdepartmental Committee on Human Trafficking and Slavery, Trafficking in Persons: The Australian Government Response January 2004–April 2009 (Inaugural Report of the Anti-People Trafficking Interdepart-mental Committee, 2009), p. 19.

  9 Interdepartmental Committee on Human Trafficking and Slavery, Trafficking in Persons: The Australian Government’s Response July 2014–June 2015 (Report of the Anti-People Trafficking Interdepartmental Committee, 2015), p. 24.

  10 See, e.g., Wise, M. and Schloenhardt, A., “Counting Shadows: Measuring Trafficking in Persons in Australia” (2014) 3 International Journal of Criminology and Sociology 249.

  11 See, e.g., New Zealand Ministry of Justice website, 13. Trafficking, www.justice.govt.nz/policy/commercial-property-and-regulatory/prostitution/prostitution-law-review-committee/publications/plrc-report/13-trafficking.

  12 UNODC, Global Report on Trafficking in Persons 2012 (United Nations publication, Sales No. E.13.IV.1, 2012), p. 72.

  13 United States Department of State, Trafficking in Persons Report 2015 (A/GIS/GPS, July 2015), p. 260.

  14 United States Department of State, Trafficking in Persons Report 2004 (Publication 11150), p. 103.

  15 Simmons, G. and Stringer, S., “New Zealand’s Fisheries Management System: Forced Labour an Ignored or Overlooked Dimension?” (2014) 50 Marine Policy 74.

  16 Trafficking in Persons Report 2015 (n.13), p. 260.

  17 New Zealand Ministry of Justice website (n.11).

  18 Trafficking in Persons Report 2015 (n.13), p. 260.

  19 Global Report on Trafficking in Persons 2014 (n.5).

  20 Established in 1996 as a forum for official immigration agencies of the Pacific Region.

  21 Pacific Immigration Directors’ Conference, Understanding People Smuggling and Human Trafficking (Policy Brief No. 2/2010, 2010), p. 5.

  22 Also the Global Slavery Index rates PNG Government’s response to human trafficking as C, that is, inadequate with limited victim support services and a weak criminal justice system.

  23 (P.L. 106–386).

  24 Lindley, J. and Beacroft, L., “Vulnerabilities to Trafficking in Persons in the Pacific Islands”, 428 Trends & Issues in Crime and Criminal Justice (Australian Institute of Criminology, November 2011).

  25 Larsen, J.J., Lindley, J., and Putt, J., Trafficking in Persons Monitoring Report: July 2007–December 2008 (Monitoring Report No. 6, Canberra: Australian Institute of Criminology, October 2009), p. 30.

  26 Lindley, J. and Davis, K., Pacific Trafficking in Persons Forum Outcome Report (Paper to New Zealand, Fiji and Tonga, and the Pacific Immigration Directors’ Conference. Quality Hotel, Wellington, New Zealand, 2–4 September, 2009).

  27 Roughan, P., Hollow Borders and the Slim State: Challenges to Understanding Trafficking in the Solomon Islands, cited in ibid., 16.

  28 Larsen, Lindley, and Putt (n.25).

  29 Burn, J., Blay, S.W., and Simmons, F., “Combating Human Trafficking” (2005) 79 Australian Law Journal 543, 544.

  30 Pearsons, E., “Australia in Global Alliance Against Trafficking in Women”, in Collateral Damage: The Impact of Anti-trafficking Measures on Human Rights Around the World (Thailand: Amarin Printing & Publishing Public Company Limited, 2007), p. 30.

  31 www.ag.gov.au/CrimeAndCorruption/HumanTrafficking/Documents/Trafficking-NationalActionPlanToCombatHumanTraffickingAndSlavery2015-19.pdf.

  32 See, e.g., Parliamentary Joint Committee on the Australian Crime Commission, Inquiry Into the Trafficking of Women for Sexual Servitude (Canberra: Parliament of the Commonwealth of Australia, June 2004).

  33 A more comprehensive assessment of the crime of trafficking in Australia focusing on unreported and/or unrecognised instances of labour trafficking came with an Australian Institute of Criminology (AIC) report on Labour Trafficking, which was launched in November 2010 by the Minister for Home Affairs; see also David, F., “Labour Trafficking” 108 Research and Public Policy Series (Canberra: Australian Institute of Criminology, 2010).

  34 Released by the Interagency Working Group on People Trafficking, Plan of Action to Prevent People Trafficking (Wellington, NZ: New Zealand Dept. of Labour, 2009).

  35 Ibid.

  36 Even though the focus remained on transnational human trafficking, under Section 98D(3) it was possible to bring proceedings even if the person who was coerced or deceived ‘a) did not in fact enter the State concerned; or (as the case may be) b) was not in fact received, concealed, or harboured in the State concerned’.

  37 Crimes Amendment Act 2015 (2015 No. 95).

  38 UNODC, Global Report on Trafficking in Persons 2009 (UN Publications, February 2009).

  39 Lindley and Beacroft (n.24), p. 2.

  40 UNODC, Country Profiles: East Asia and the Pacific 2014, p. 20.

  41 Trafficking in Persons Report 2015 (n.13), p. 157.

  42 Ibid.

  43 Ibid., p. 274.

  44 IOM, First Counter-Trafficking Law Comes Into Force in Papua New Guinea (Papua New Guinea: IOM, July 11, 2014).

  45 Marat, A., Minister for Justice and the Attorney General, First Reading Speech on the Draft Legislation to Amend the Criminal Code (2012).

  46 IOM, Trafficking in Persons and People Smuggling in Papua New Guinea: Baseline Data and Training Needs Assessment Report (Papua New Guinea: IOM, 2012).

  47 Ibid., p. 12, 13.

  48 See, e.g., Fredette, K., “Revisiting the UN Protocol on Human Trafficking: Striking the Balances for More Effective Legislation” (2009) 17 Cardozo Journal of International and Comparative Law 1, 121.

  49 Cho, S. and Chaitanya Vadlamannati, K., “Compliance With the Anti-trafficking Protocol” (2012) 28 European Journal of Political Economy 249, 263.

  50 Global Report on Trafficking in Persons 2014 (n.5), p. 13.

  51 Ibid.

  52 Trafficking in Persons: The Australian Government’s Response July 2014–June 2015 (n.9), p. 27.

  53 [2008] HCA 39.

  54 [2015] FCCA 389.

  55 See UNODC, Human Trafficking Case Database, www.unodc.org/cld/search.jspx?f=en%23caseLaw%40country_label_s%3aNew%5c+Zealand.

  56 [1993] 1 NZLR 141.

  57 [2011] DCR 125.

  58 Weeks, J., “NZ’s First Human Trafficking Trial”, The New Zealand Herald (27 November 2014), p. 5.

  59 R v. Sangha [2016] NZHC 37 (29 January 2016).

  60 In the above mentioned case, R v. B (n.57), the defendant (an Australian businessman) arranged for a minor to provide a massage for him in his hotel room during his upcoming visit to Wellington, and prior to the parties meeting he was charged under Section 22(1) and Section 23(1) of the Prostitution Reform Act 2003. The case, however, was withdrawn by the presiding judge in order for the Crown to amend the indictment under an alternative offence (S. 20 of the Prostitution Reform Act 2003 stating that ‘no person may assist a person under 18 years in providing commercial sexual services’), as offering a more suitable charge.

  61 Trafficking in Persons Report 2015 (n.13), p. 158.

  62 State v. Murti [2010] FJHC 514; State v. Laojindamanee [2013] HAC323.2012.

  63 State v. Raikadroka [2014] FJHC 402.

  64 Trafficking in Persons Report 2015 (n.13), p. 275.

  65 Ibid.

  66 On 1 July 2009 the Australian Government implemented changes to the Support for Victims of People Trafficking Program and the People Trafficking Visa Framework, which means that access to the programme is no longer conditional on holding a valid visa and thus victims of trafficking now have access to a more flexible support framework for themselves and their families, www.ag.gov.au/CrimeAndCorruption/HumanTrafficking/Documents/FactsheetChangestoAusGovAntiPeopleTraffickingStrategy-English.pdf.

  67 See the Australian Government Department of Social Services website, Anti-Human Trafficking Strategy, Support for Trafficked People Program, www.dss.gov.au/our-responsibilities/women/programs-services/reducing-violence/anti-human-trafficking-strategy.

  68 See New Zealand Ministry of Justice website, 6. People Trafficking,
People Trafficking – Victim Support and Protection, www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/international-human-rights-instruments/international-human-rights-instruments-1/convention-against-torture/united-nations-convention-against-torture-and-other-cruel-inhuman-or-degrding-treatment-or-punishment-new-zealand-periodic-report-6/article-2/6-people-trafficking.

  69 UNODC Model Law against Trafficking in Persons (V. 09–81990 (E), 2009), p. 55.

  70 Open to seasonal workers in the horticulture industry from Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, the Solomon Islands, Timor-Leste, Tonga, Tuvalu, and Vanuatu. The programme started on 1 July 2012 and builds on the Pacific Seasonal Worker Pilot Scheme concluded on 30 June 2012; for more see https://employment.gov.au/seasonal-worker-program.

  71 Open predominantly for workers from the Pacific countries, for more see www.immigration.govt.nz/employers/employ/temp/rse/ATRrequirements.htm.

  72 IOM website, Asia and the Pacific, Oceania, www.iom.int/asia-and-pacific.