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Parliamentary Joint Committee on Foreign Affairs, Defence and Trade - 19/03/2013 - Slavery, slavery-like conditions and people trafficking

CULLEN, Superintendent Jennifer, National Coordinator, Human Trafficking Team, Australian Federal Police

DRAKE, Federal Agent Karen, Acting National Coordinator, Crime Operations, Australian Federal Police

HURST, Commander Jennifer, Manager, Crime Operations, Australian Federal Police

SENGSTOCK, Mrs Elsa, Coordinator, Legislation Program, Australian Federal Police

Subcommittee met at 13:05

CHAIR ( Mr Laurie Ferguson ): I declare open this public hearing for the inquiry into slavery, slavery-like conditions and people trafficking which is Human Rights Subcommittee of the Foreign Affairs, Defence and Trade Joint Standing Committee. This is the fifth public hearing held by the subcommittee as part of the inquiry. The trade and exploitation of men, women and children through force or coercion is one of the fastest growing criminal activities in the world. The International Labour Organization estimates that over 20 million men, women and children around the world are victims of modern-day slavery; 56 per cent of these victims are exploited in the Asia-Pacific region.

Australia has not escaped this serious form of exploitation. The Attorney-General's Department reports that the AFP have undertaken more than 350 investigations and assessments of people-trafficking related offences since 2004; 203 victims of trafficking were provided with assistance over this period. As part of this inquiry, the subcommittee will examine Australia's efforts to address all forms of slavery, slavery-like conditions and people trafficking, and consider ways to encourage effective international action and investigate international best practice. The subcommittee will also focus on how to prosecute offenders and how to protect and support the victims.

I welcome officers of the Australian Federal Police to today's hearing. I remind witnesses that although the subcommittee does not require you to give evidence under oath, this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the chambers themselves. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and will attract parliamentary privilege. Do you wish to make an opening statement to the committee?

Cmdr Hurst : No, thank you.

CHAIR: In regards to the bridging F visa, it has been suggested by the United Nations Special Rapporteur that it be extended from 45 to 90 days. Do you consider that the current 45 days gives you sufficient time for your investigations or the person enough time to decide whether to cooperate? What process will you undertake to see whether there should be an extension of the 45 days?

Cmdr Hurst : From our perspective, the initial 45 days allows sufficient time for the victim to receive enough rest and support from the trafficking and people smuggling support program. Obviously, after that period of time, there is a possibility to extend them further into the program which allows us then allows us an opportunity then to assess that person further. But, from our perspective, I think that initial 45 days is sufficient and, if need be, we can extend out a little longer into the program.

CHAIR: Does that tend to happen very often? What is the proportion where it is extended?

Federal Agent Drake : In the majority of cases, the 45 days is sufficient for the victim or client to determine whether they are willing and able to assist an investigation. There are some instances where there may be mental health or medical issues where an extension to the 45 days is required, but the vast majority are able to determine whether they are willing to assist within those 45 days.

CHAIR: The Law Council of Australia has recommended that the threshold for access to the criminal justice stay visa be lowered to 'willing to assist'—in other words, that that is all that would be necessary to receive one. Do you agree with that suggestion or have a view on it?

Cmdr Hurst : I think that is appropriate. They need to be willing to assist to actually be subject to those visa requirements.

CHAIR: I have been overseas for quite a while, so I did not follow this up that thoroughly. From the tone of this question, the implication is that it is something higher than willing—is that the case?

Mrs Sengstock : At the moment they need to have assisted, and I think the Law Council is looking at people who are willing to assist—whether or not they can actually assist. From our perspective we are looking to work with victims in all capacities, but it is the immigration policy that sets the requirements for the visa.

CHAIR: We appreciate that; we just want to see what your view is. In other words, they want to lower the threshold from the current provision. Do you have a comment on that? How do you think it functions at the moment? Or is a willingness to do so enough?

Cmdr Hurst : I think a willingness to do so is enough. There is a whole range of circumstances we need to look at here. Whilst it may be that they are willing to assist in the first instance, and we are happy to work with them in that regard, it may be because of—as Jennifer has indicated—health issues or a change of heart down the track that they may change their mind. We accept that because we understand some of the conditions they have been subject to. From our perspective, willingness to assist is a good starting point and we can work with that.

CHAIR: What is your role in awareness in this country, in making sure that the public and the victims are aware, and that the general public knows about the issues? Who do you interact with? What action do you undertake yourselves?

Cmdr Hurst : I might start and then hand off to Jennifer. We do a lot of work with NGOs in this area. We do a number of community awareness programs, making sure that the word gets out that if people are subject to these types of conditions here in Australia they should be reporting either through NGOs or through the AFP. We do a lot of work with state and territory law enforcement agencies as well. Quite obviously, they are the first, more often than us, to see some of these potential victims coming through. On a range of fronts we do a lot of work in that space.

Federal Agent Drake : As Commander Hurst has indicated, we engage right from the top level with partner government agencies right through to local community groups; partner agencies in labour exploitation with trade unions et cetera; NGOs; and local community groups and schools that may be impacted or in areas at high-risk of trafficking incidents. We also work very closely with state police, recognising that the AFP cannot be everywhere, doing information sessions and attending recruit training et cetera to raise awareness of this type of crime and what can be done for investigation purposes.

CHAIR: Do you or other entities take action overseas with regard to information?

Federal Agent Drake : We do. We also have a strong presence both through our international network overseas and more directly, as we run a number of training programs and discussion forums in South-East Asian countries, often bringing 10 or more countries together. Our primary purpose is to define the problem legislatively and also to look at ways and means of information sharing and intelligence sharing to combat source, transit and destination.

CHAIR: You said community groups and then you said schools. To what degree do you interact with South-East Asian community groups in Australia?

Federal Agent Drake : We have a number of entities within the AFP that engage community groups, and they may be ethnically specific community groups. But also, more broadly through our direct engagement with a range of NGOs and their outreach to communities, we provide information sessions and pamphlets, and attend discussion forums and panels et cetera, to raise awareness of the issue.

CHAIR: Could you provide us on notice with a list of groups that you have interacted with?

Federal Agent Drake : Certainly.

Mr RUDDOCK: We have some data from your annual report about the nature of the problem if you accept what you identify as human trafficking. I am told that in 2011-12 there were 41 matters assessed with 33 being accepted for investigation, compared with 35 new investigations in 2010-11. So the numbers were down by two, as against 12 for—no, we have only the two sets of figures. So, really, is it a major problem? I do not know. What amount of money are you expending on human trafficking teams and investigating these issues? What proportion of your budget would it be?

Cmdr Hurst : From an investigational perspective, all up we have 25 dedicated specialist staff who look at the human trafficking area. They are based in Canberra, Melbourne and Sydney. From an AFP perspective, we do see it as quite a serious problem. A couple of issues are that whilst matters may be referred to us that may potentially at the outset appear to be trafficking matters, sometimes it is quite difficult for us to actually prove the offence and to actually have a witness who will go and give evidence for us at court. It might turn out that, once the matter is presented to us, we do not recognise that as a true trafficking offence for us or there may just not be sufficient evidence to actually take it forward to a proper prosecution.

Whilst I say we have 25 people dedicated to it, obviously all matters of a human trafficking perspective that are referred to the AFP—for us—are considered essential. We must look at them and we must assess them. We see them as serious. Even though there may not be a number of them coming through, what we see is that it is actually a crime against humanity. It is quite a serious matter. So we see it as an essential matter that we need to take on. It is very high impact for the community and it is also very high impact for the AFP to look at these matters.

When we are talking about breaking it down budget wise, we do not have a specific budget allocated to human trafficking these days. It is actually spread out across what we would call our 'crime operations area'. There is a general budget that is dedicated to any forms of crime that fall within that particular crime type, which happens to be human trafficking.

Mr RUDDOCK: Obviously, the commissioner decides these matters in relation to budget. I was looking at some of these issues and thinking about other areas of Commonwealth law in which you could get very little reaction from the Australian Federal Police—such as some of the intellectual property areas, where it was not until we gave you a specific budget which you could only spend on that that you were prepared to give it any priority at all. I look at this with the large number of people involved, and you are only looking at three dozen cases. I then say to myself: is that a major problem? I do not want to see anybody trafficked but, in terms of the resources that you are applying, how do you satisfy me that they are a reasonable allocation of resources, or is it just because there is a squeaky wheel?

Cmdr Hurst : My answer to that is that whilst we have the 25 dedicated staff—as I have indicated—across the AFP in our investigations area we actually have a capacity to draw on staffing of over 750 members. Those staff can be flexibly deployed to wherever the priorities dictate. If it happens to be that we have a number of human trafficking matters that we need to look at and we consider that a priority—as I have already indicated, for us it is a priority—then we will dedicate the number of resources that we need to investigate that particular matter. So, whilst we have 25 specialists, in fact we have over 750 FTEs that we can draw from flexibly all across the country.

Mr RUDDOCK: Some of the people that we talk to from time to time suggest the problem is very, very much larger than your statistics might in fact reveal. Have you got a view on that?

Mr ADAMS: I would come in there, Chair. They were the issues that came before you, but there may be a much bigger issue—as I understand—that prevails. But there is the difficulty of getting those matters even to your view and then building the case. I wanted to ask you: what evidence do you need to get a case to the public prosecutor? Is there sufficient law at the moment to help you build that or are there changes that could come out of our inquiry that could assist that?

Cmdr Hurst : With the reforms that have come with the legislation that has just come out on 8 March, it is really helping us now. We are finding that quite good. For matters that we have not been able to deal with before in a true trafficking way, we are now able to do that. I will let Elsa speak about that and I will turn to Jen to step through in relation to the evidence required for a brief of evidence.

Mrs Sengstock : I think certainly the recent reforms that were passed by parliament and commenced on 8 March expanded the reach of the slavery offences to make sure that we are able to capture offending across all different industries, and also exploitation and trafficking in all of its different forms. The AFP had worked very closely with the Attorney-General's Department and with other stakeholders to develop those reforms, based on the trends that we were seeing and the changing nature and sectors in which it was happening. So from our perspective the reforms are greatly appreciated. Of course we have a lot of work to implement them and there is not going to be instantly people reporting on the new crime types, because it takes time, obviously, for them to feel comfortable doing so. So one thing that I think law reform cannot overcome is victim reluctance to report. While the AFP and other stakeholders do a lot of outreach with community groups, and there are a lot of support options provided, this is one of those things that you cannot actually rectify by law reform, as it were.

I think one of the other challenges, and it might cross over into the operational challenges, is that this is also a transnational crime type. So there are inherent evidential challenges in trying to investigate and prosecute crimes that have a transnational element. Obviously over the years we have seen improvements to the way in which mutual assistance and other international crime cooperation works, so there is nothing in particular we could identify with that, but it does stand as an ongoing challenge for law enforcement when we do not have the jurisdiction to use our powers overseas—and there are issues with that. Would you like to comment on the domestic side?

Federal Agent Drake : As far as what evidence we typically required historically, prior to the recent amendments, being a victim based crime obviously we need victims who are willing and able to provide a statement outlining the forms of exploitation that they were subjected to. The three key elements that we were required to prove were the threat/force/coercion, the movement of a person and then some form of ongoing exploitation. Where we found a lot of difficulties previously due to evolving criminal methodologies was proving the threat/force/coercion. The High Court decision in Wei Tang, where we had to look at harsh working conditions and what was the threshold for criminality, we often found difficulties due to the current methodology, where we have people on legitimate visas working in a legitimate industry subject to psychological oppression and other forms of exploitation, meeting the prior threshold. In that case it could be quite difficult and these matters go on for quite some time to have a victim who is willing and able over a period of years to continue to provide that evidence. Therefore the recent amendments to the legislation, time will tell, should assist us further in obtaining successful prosecutions, hopefully.

Mr ADAMS: I understand that in world terms the numbers of people that are being trafficked is enormous. I have not got any figures in my head but you may have some. The connections between our agencies and the world agencies is pretty significant. Would you like to elaborate on that and tell us how you have those connections?

Cmdr Hurst : I think what we can talk about there is: the AFP has our international network. We are covered in 29 countries. We have a very large presence in South-East Asia, of course. We have very strong relationships with our law enforcement partners overseas that are working in this space, and obviously they have a very strong interest as well, because it is some of their citizens who are being trafficked and are being subject to this. We have done a lot of work offshore, either ourselves or through our liaison officer network, to work with our law enforcement partners. As Jen has already indicated as well, we have done a lot of training with overseas law enforcement agencies in this area, so we have some natural connections that we have already built up and some fairly solid partnerships in that area. From my perspective, I think, we are fairly well covered in that space.

Mr ADAMS: Do you have any figures? Say from Asia?

Cmdr Hurst : In relation to the problem?

Mr ADAMS: Yes.

Cmdr Hurst : I would have to take that on notice and come back to you, sorry.

Mr ADAMS: It might be handy if we had some, I think.

Senator STEPHENS: Thank you for your evidence today. During our hearings we have heard evidence that there are cases of organ trafficking in Australia. Can you elaborate on whether the AFP has investigated organ trafficking here?

Mrs Sengstock : That was one of the areas where we were keen to see reform and, as part of reform we have gone through, there is now the stand-alone offence of organ trafficking.

Cmdr Hurst : I do know of—

Mrs Sengstock : Yes, we have had at least one case

Cmdr Hurst : There is only one that I am aware of and I do not have the details of that case, I don't think.

Mrs Sengstock : There was one in 2010 that we did investigate, when there was an attempted removal of an organ.

Cmdr Hurst : That is right.

Mrs Sengstock : And it was the CDPP who provided advice to us that there was not sufficient evidence to proceed. Part of the problem there was that the victim was consenting the removal of the organ and you could not then satisfy the exploitation element of trafficking. It was only an offence if there was trafficking and exploitation. As there is a way in which the laws operate, which we could provide probably on notice in a bit more detail, that would mean that, because it was not actually removed in the end—it was just an attempt—then it was not an offence under the jurisdiction in which it happened. The reforms that have come through would change that situation and so we would be more likely to be able to proceed in one of those cases. So, we have not had a lot that we are aware of, but equally, I guess people will not necessarily report things that are not a crime until they are a crime under legislation, or they will be reporting those and we cannot take action until it is a crime under legislation.

Senator STEPHENS: We have also heard some evidence that the AFP refers people to the Support for Trafficked People program and that perhaps not all trafficking victims chose to take that path. Have you any comments about whether or not that is true and why victims might not want to use that kind of support?

Federal Agent Drake : There are a range of reasons why a suspected victim of trafficking may not want to enter the full support program. In some circumstances they have been in the country for quite some time and have established other networks in which, for example, they may have a spousal visa and not require the support of the program. In other circumstances they would rather not use the program but they have established networks with perhaps a local NGO who is providing a range of support services. They may have obtained a migration adviser and come to other arrangements for themselves and they do not require it. Obviously, there are others who simply do not want to participate.

Senator STEPHENS: Does the AFP keep tabs if a victim is accessing support from an NGO or some other kind of support network rather than the formal program of FaHCSIA?

Federal Agent Drake : Yes, the AFP has a number of victims with whom it is currently engaged and who are not part of the support program, but are still willing and able to assist the investigation into their particular circumstances.

Mr RUDDOCK: The only data which I have found compelling and persuasive and perhaps was of interest to me was the Australian Institute of Criminology report. There is nothing that you would offer in the way of evidence that would suggest we should have any doubts about the conclusions reached in that report?

Cmdr Hurst : No, I do not think there would be any doubt about that.

Mr RUDDOCK: In relation to the changes on 8 March—so, they have been in place for 11 days—do you have people waiting at the door?

Mrs Sengstock : To report new—

Mr RUDDOCK: To report new matters?

Cmdr Hurst : No, we have not.

Federal Agent Drake : I think the initial priority has been in community engagement, to get word out about the new offences, how they work and their impact. We have had a number of community engagement forums, and there are more planned, to discuss the issues of forced marriage and forced labour as stand-alone offences. There is obviously ongoing dialogue with NGOs regarding a number of persons who have come to their attention, noting that the legislation is not retrospective.

Mr RUDDOCK: For me, reconciling of the Institute of Criminology work with the reports that you get from interested bodies leads to a very significant difference of view about the nature and extent of the problem in Australia. In a sense I am disappointed in part that there was not a submission that would have enabled me to evaluate the way in which you have assessed these matters. I now form the judgement that your assessment is in fact the assessment of the Institute of Criminology and I can rely on that.

Mrs Sengstock : While we did not put a submission in we did contribute to both the AGD original and supplementary submissions and the DFAT submissions. Because our work is so closely connected with those stakeholders we felt our in put would be better put through those submissions rather than a standalone one. I think there is a difficulty in the sense that you cannot definitively get a number on the offence rate because there are difficulties with under-reporting and there are quite significant reasons that these crimes are under-reported, particularly for people who are victimised in the sex industry, or in a forced marriage context there are a lot of cultural and religious stigma attached to reporting these crime types. So I do not know that there is a way to definitively get an answer on the full extent of the problem. But the work that has been done by the AIC and by other bodies certainly informs the direction the AFP takes towards operations.

Cmdr Hurst : I think that is a fair point. It is extremely difficult to try to get a grip on the actual situation because of the under-reporting in relation to this. As you well know, these people are in situations which are quite vulnerable—

Mr RUDDOCK: There is an assumption there in what you say that there is under-reporting. How can you assert to me that there is a problem of under-reporting when it has not been reported to you? You must have been able to identify cases that should have been reported. Have you?

Cmdr Hurst : I think what this goes to as well is the fact that we are doing so much work with particularly NGOs, who are very much at the front and centre of a lot of these people coming forward to them. It may be that these people are not reporting to us as police to investigate the matter but they are obviously coming forward to some of the NGOs. So, from a policing perspective, some these matters are quite often not taken forward to an investigation.

Mr RUDDOCK: But I do not know how many areas of public policy there are in which we make a judgement that there are a whole lot of people who have received anecdotal evidence who do not bring it forward for investigation and testing and yet we still say there is under-reporting. From my perspective there is a lot of criminal activity that does not get investigated because you do not have the resources to be able to deal with them. I have seen that in any number of cases. The impression I get is that, in relation to every matter that is reported involving suggestions of human trafficking, you do investigate.

Cmdr Hurst : We give it priority to investigate. We evaluate it and we take it from there.

Mr RUDDOCK: Yes, assessed by human trafficking teams, with 33 accepted for investigation. It is a pretty high success rate, it seems to me. I have not put any questions on notice to the AFP as to all the areas of complaints that are made and what numbers of cases that you investigate but it might be very interesting to get it out. I suspect that we are responding to a degree of advocacy that tells us we have got a problem where the objective evidence may suggest that is it is not as large as some would have us believe. I am mischievous enough to think that the United States, which has played a particular part, loves to be able to create an impression that slavery is an important issue because part of their history was that slavery was something that had to be dealt with and now they want to pursue this as a cause around the world, whether it is there or not.

Mrs Sengstock : One thing I might add is that all matters that are referred to the AFP are assessed under our case categorisation prioritisation matrix, or CCPM for short. Regardless of the number of incidents of slavery, reported or not, each referral of slavery is assessed as essential and a high priority because of the importance of that crime type for the community and because it is a crime against humanity. It is not getting a high priority because of the perceived number—whether there are a million reports or one—it is because of the nature of the offending, and even one case is considered essential and a high priority for the AFP. Other crime types, again regardless of their incidence, may be assessed at a lower priority for the reasons that are around that crime type. Even if we were to get definitive figures that would not necessarily change how the AFP assesses and then proceeds to investigate on human trafficking matters.

Mr RUDDOCK: There were some other questions that perhaps I should go to.

CHAIR: You said that you fed into two other submissions. Were there any aspects that were left out of your recommendations or are they representative of your thinking?

Mrs Sengstock : That is right.

Mr RUDDOCK: Are there cases where you formed the view that charges should be brought that have not been pressed by the DPP?

Federal Agent Drake : There have been discussions about where the threshold actually stands, particularly, as I said before, the elements around threatened or forced coercion and also with some of the prior offences around trafficking in persons or deceptive recruiting. There is the requirement to prove recklessness or intent at the time of recruitment regarding the ongoing exploitation that occurs in the destination country. So, actually defining those elements and looking at reasonable prospects of conviction have been areas for discussion, but, as I have said, the recent amendments address some of those deficiencies. Time will tell how we go.

Mr RUDDOCK: Do these investigations that you have undertaken—the numbers are not large—tend to occur more in one part of Australia than another?

Cmdr Hurst : They tend to be on the east coast, Sydney and Melbourne. Obviously the larger cities attract more people into those areas.

Mr RUDDOCK: More in Melbourne than Sydney?

Cmdr Hurst : No, Sydney and Melbourne are the two largest.

CHAIR: I think that covers the field. Thank you very much. If you could come back to us with that list of community groups you engage in the ethnic community sector.

Resolved (on motion by Mr Ferguson, seconded by Senator Stephens):

That, pursuant to the power conferred by section 2(2) of the Parliamentary Papers Act 1908, this committee authorises publication of the evidence given before it and submissions presented at public hearing this day.

Subc ommittee adjourned at 13:38