Protection and Assistance of Victims of Trafficking in Persons
Trafficking in persons constitutes a serious violation of fundamental human rights and freedoms. Most victims of trafficking are traumatised by the physical, psychological, and/or sexual violence to which they have been subjected. Some victims may require medical treatment and psychological counselling. Many have no place to stay in Australia and no means of support upon their return to their home country and may be stigmatised and rejected by their families. They are generally in need of accommodation, financial assistance, education, and vocational training programs, as well as assistance with finding employment. Without this support, victims are vulnerable to being re-trafficked or facing further harm.
Many victims of trafficking in persons fear intimidation and retaliation if they cooperate with law enforcement agencies or testify in court. These fears are particularly acute when there is a close relationship between the victim and the offender, or when the offender is part of a criminal organisation. This fear of intimidation or retaliation is often linked to a distrust of government officials, law enforcement, and the judiciary. Many victims also fear maltreatment by government authorities, deportation, or other potential risks to their physical safety.
For these reasons, policies and laws should be in place to address the harm done to victims, and to prevent further traumatisation and victimisation. In order to successfully prosecute traffickers, law enforcement must implement victim-sensitive policies to allay the fears of trafficked victims and to ensure their safety. Although the setting-up of appropriate assistance and protection measures may be expensive, ‘addressing the social, educational, psychological and other needs of victims as soon as they are discovered may ultimately prove less costly than dealing with them at a later stage.’
Article 6(3) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons [the Trafficking in Persons Protocol]offers guidance on the assistance and protection that should be offered to victims of trafficking in persons. This article encourages States Parties
Such measures should include:
- appropriate housing;
- counselling and information, in particular as regards to their legal rights, in a language that the victim can understand;
- medical, psychological and material assistance; and
- employment, educational and training opportunities.
Article 6(3) is applicable to both the receiving State and the State of origin of the victims of trafficking in persons, but only as regards victims who are in their respective territory.
In applying these provisions, States Parties should, where possible, differentiate the available support depending on the special needs of different categories of victims of trafficking in persons. Specifically, they shall take into account ‘the age, gender, and special needs of victims, in particular the special needs of children, including appropriate housing, education, and care’: Article 6(4).
Article 6(5) of the Trafficking in Persons Protocol reiterates the points raised by paragraph (3) by calling on States Parties to endeavour to provide for the physical safety of victims of trafficking while they are within its territory. This requirement extends to all victims of trafficking, whether or not they are witnesses in criminal proceedings.
Where law enforcement officers encounter a trafficked person they are encouraged to involve members of local non-governmental organisations (NGO) who may be helpful in approaching, contacting, and interviewing suspected victims. Where this is the case, there is a need for clear follow-up procedures ‘in order to ensure the safety of individuals identified as victims and place them within a support system.’
Persons who are found to be victims of trafficking in Australia have access to a range of support services provided under the Australian Government’s ‘Support for Victims of People Trafficking Program’. The Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) administers and provides funding for the Support Program, but its delivery is outsourced. Since 2009, the Australian Red Cross has been contracted to provide a 24-hour a day, seven days a week, national response to assist victims of trafficking.
A person does not need to hold a valid visa to initially access the Support Program, but access is dependent on a referral being made by the AFP once they have determined that the person is a suspected victim of trafficking. Long-term assistance under the program is also dependent on the victim agreeing to participate in a trafficking related investigation and/or prosecution.
The type and level of support available under the program varies depending on the ‘stream’ of the Support Program under which the victim is assisted. The details of each stream are outlined detailed below.
The ‘Assessment Stream’ includes up to 45 days of intensive support for all clients referred by the AFP, irrespective of whether they are willing and/or able to assist with an investigation and/or prosecution of a trafficking related offence. The primary purpose of the Assessment Stream is to allow victims of trafficking sufficient time to rest and recuperate. Victims have access to the following support as needed: secure accommodation; a living allowance; a food allowance; an amount for the purchase of essentials such as clothing and toiletries; access to health care, including counselling; access to interpreters; and access to legal services. Where a victim does not have a valid visa, they may be granted a Bridging F visa for a period of 45 days.
Extended Intensive Support Stream
An additional 45 days of intensive support is available to victims of trafficking who are willing but not able to assist with an investigation and/or prosecution. Access to this stream is provided on a case-by-case basis and is designed to provide additional assistance to victims suffering from medical conditions and trauma. A second Bridging F visa may be granted for a period of 45 days where a victim does not hold a valid visa.
Justice Support Stream
The Justice Support Stream provides basic support to a victim involved an investigation or prosecution until the matter is finalised. Clients have access to the following support as needed and if eligible: Special Benefit, rent assistance and a Health Care Card administered by Centrelink; assistance with securing longer-term accommodation; assistance to purchase essential furniture and household items; access to Medicare and the Pharmaceutical Benefits Scheme; access to legal services and interpreters; assistance to obtain employment and training (including English-language training) if desired; and links to social support.
Temporary Trial Support Stream
This stream provides temporary support for clients who have returned to Australia to participate in a people trafficking trial. Recipients are given access to short-term accommodation and a weekly living and food allowance. Support similar to that provided under the Assessment Stream is also available.
The Transitional Period of the program provides a 20–day period for Justice Support Stream clients leaving the program.
It is important to recognise that victims of trafficking will often be fearful of authorities. To this end, the requirement that a victim of trafficking seek a referral from the AFP in order to access the Support Program is a clear impediment to ensuring that all victims of trafficking have access to appropriate support and assistance. Furthermore, the availability of long-term support under the program is entirely conditional on participation in the criminal justice process. This is problematic given that victims may be unable to participate due to their traumatic experiences or fear of retaliation against themselves and/or their families.
Non-governmental organisations (NGOs) play an important role in the fight against trafficking in persons. They exercise a crucial function in apprehending instances of this crimes and identifying victims of trafficking in persons who may be reluctant to contact or cooperate with government agencies for fear of repercussions, especially deportation. NGOs, if properly resourced, may also be better equipped and better suited than government agencies to offer certain support services to victims of trafficking in persons. Strong partnerships between government agencies and NGOs (and also among NGOs) provide the most effective means of offering coordinated services and, ultimately, of preventing and suppressing trafficking in persons.
Research conducted by the Human Trafficking Working Group in 2011 examines the role of NGOs in an Australian context. This project explores the role NGOs are expected to play as set forth under international law, examines if and how these obligations are carried out by NGOs in Australia in practice, and concludes with some recommendations to improve the delivery of NGOs’ role. For the full report see, Andreas Schloenhardt & Rose E Hunt-Walshe, 'The Role of Non-Government Organisations in Australia’s Anti-Trafficking in Person Framework’ (2012) 36(1) University of Western Australia Law Review 57–91
Once rescued from an instance of trafficking, many victims will wish to return to their home country as swiftly as possible. The repatriation of victims of trafficking in persons can be a complex undertaking. For example, in some cases it may be difficult to establish what the home country of a victim is and whether it is safe to return that person to that country. In other cases, victims of trafficking in persons have no travel or identity documents and therefore face complications in transit points and may be unable to re-enter their countries of origin. If left to travel alone, they are especially vulnerable to being trafficked.
A research paper completed by the Human Trafficking Working Group in October 2010 examines the nature and quality of the programs and processes under which victims of trafficking in persons are returned and reintegrated from Australia. It analyses victim demographics including the countries to which victims most commonly return. Further, it dissects the mechanisms that control how victims in Australia are prepared for their return home as well as the nature of foreign reintegration assistance available to victims upon their return. The full report has been published in Andreas Schloenhardt & Mark Loong, ‘Return and Reintegration of Human Trafficking Victims from Australia’ (2011) 23(2) International Journal of Refugee Law 143–173.
|||UNODC & UN.GIFT, Model Law against Trafficking in Persons (2009) 55.|
|||Article 6(3) Trafficking in Persons Protocol.|
|||UNODC, Toolkit to Combat Trafficking in Persons (2008) 276.|
|||See further: The Australian Government’s Response 1 July 2010–30 June 2011 (2011) 31–32.|