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Education and Employment References Committee
26/06/2015
Australia's temporary work visa programs

GEARY, Mr Luke, Managing Partner, Salvos Legal, The Salvation Army

MOORE, Ms Heather, Advocacy Coordinator, The Freedom Partnership to End Modern Slavery, The Salvation Army

CHAIR: Welcome. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. The committee has received your submission, thank you. I now invite you to make a short opening statement and at the conclusion of your remarks I will invite members of the committee to put questions to you.

M s Moore : I would like to start by acknowledging the importance of this inquiry and thanking the committee for inviting us to appear and to share our experience. First, by way of background, The Salvation Army has an international mandate to fight modern slavery. Modern slavery is a term that I will use to encompass a range of criminal acts, including anything from human trafficking to forced labour, servitude, debt bondage, forced marriage and servile marriage. In Australia, we have been working directly with victims since 2008, when we established the country's first safe house for women impacted by modern slavery. We also provide case management, legal advocacy and prevention services to men, women, youth and children in the community.

In July 2014, we established the Freedom Partnership to build a national movement to end Australia's contribution to the global problem of slavery. The partnership aims to do this by engaging survivors, communities, industries and all levels of government to promote and action a range of ideas on how to fight and end modern slavery. All of this work is privately funded. Through our safe house direct service program we have supported workers, including migrant workers, who have experienced slavery in a variety of industries, including but not limited to construction, personal and aged care, hospitality and tourism and domestic work. We have also supported victims of sexual servitude, forced marriage and slave-like marriage.

In the course of our work, we have met many other people who were not subjected to slavery but who experienced underpayment or non-payment of wages; verbal abuse; excessive work hours; living at their place of work; and being unable to demonstrate an employment relationship, despite working in a business for years. We have drawn heavily on this firsthand experience in developing recommendations for the committee. You would be aware that we raised a range of complex issues in our submission. We do not profess to be experts in all of these areas. We merely wanted to demonstrate that we are seeing exploitation across a variety of industries, not just agriculture, and across a variety of visa types, not just working holiday makers and not just skilled migrants, and that modern slavery occurs where exploitation occurs. Our interest in this inquiry comes from a genuine concern for all workers, Australian and overseas workers alike. That said, we recognise that overseas or migrant workers experience greater vulnerabilities in the global labour market. As such, we need to be mindful about how temporary work programs are designed to ensure that they protect people rather than put them at risk. Additionally, we need to consider the unintentional impacts of other policies on temporary work programs.

We raised many recommendations to you in our submission, but if I could emphasise three key points today they would be these. Firstly, the government response to fraud and exploitation in temporary work programs must be rebuilt from a protective framework. In real terms, this means that all activities to disrupt these crimes should operate from a victim-centred approach and with the assumption that there is the potential for severe forms of abuse, including modern slavery. It also means a paradigm shift where more time and more care are taken to properly screen workers and create an environment that is conducive to the disclosure of crimes.

Secondly, we need to create accessible avenues to safety and alternatives to exploitation. This means coupling compliance monitoring with the support framework for all temporary migrant workers to minimise social isolation and improve access to safe, confidential advice and assistance. The Four Corners episode demonstrated well the disincentives that many people face to reporting. We need to find other ways to address the complexities in the relationships that cause people to remain in exploitive conditions.

Lastly, we need information on the scope and nature of the problem. Official data on worker exploitation is virtually non-existent. I assume that various government departments, such as the Australian Crime Commission, Immigration and Fair Work all manage their own information, but it is unclear to what extent that information is shared. There is no national monitoring program for the trafficking framework. As long as this remains the case, people will, I fear, continue to argue about whether exploitation is really a problem and we will remain unable to find effective solutions. Task Force Cadena offers an opportunity to draw on the information various agencies have and move from a risk management approach to an intelligence approach and a comprehensive approach that addresses all elements of the crime. There is also some important work coming out of the Australian Institute of Criminology on this that could provide a framework, and I am happy to elaborate on that a bit more like if you like.

With that, I will conclude my opening remarks, and I am happy to take your questions.

CHAIR: Thanks for your excellent submission. I have absolutely taken to heart your point that we should line up all of the recommendations. We are starting to do that, and I am sure the secretariat will be groaning when they hear from us, but you have named a lot of reports, and I think you make a very good suggestion about lining up those recommendations, so thank you for that.

Did you hear much of the evidence from the 417 visa workers who were in the room?

M s Moore : A bit, yes.

CHAIR: One of the things that really piqued me is that I would have to say I am uncomfortable with the word 'slavery' but I think your submission convinces me that there are elements of slavery in the Australian workforce. Those visa workers fit some of your description of what constitutes slavery. Would you agree with that? Is that what we should be looking for?

M s Moore : I think we need to be careful with that language. I have noticed that in the Four Corners episode and a lot of the discourse that has continued from that people use the term 'slave-like conditions' a lot. I do not have a problem with that, because it is a useful descriptor to emphasise how terrible some of the working conditions are. That said, we need to be careful not to minimise actual conditions of slavery. I mentioned to you briefly that the difference is when someone can leave without facing real retaliation against them or their families.

CHAIR: Which those workers can—yes.

M s Moore : I was not able to discern if that was actually happening. Where that occurs—where these working conditions that the people before us were describing occur—those are the same conditions that occur with slavery.

CHAIR: Yes, except that these workers are free to leave.

M s Moore : Yes.

CHAIR: Would that be the key difference?

M s Moore : Yes.

CHAIR: I have certainly been shocked at the level of exploitation of these workers.

M s Moore : Yes. 'Free to leave' can be difficult. It is a very thin line.

Senator O'NEILL: Technically they can walk away, but many of them actually have debts that tie them into that situation.

M s Moore : That is right.

Senator O'NEILL: So the degree of freedom they have to leave is impacted by the financial burden that they may have loaded upon them.

Mr Geary : Or threats.

CHAIR: Yes, they have those. Are there key characteristics that define slavery in Australia, or is there a universal definition?

Mr Geary : You have the law set out in the Commonwealth Criminal Code regarding certain criminal offences. More broadly than that, obviously the Criminal Code deals with the prosecution of offences, which does not necessarily include all that the experts in the field would like it to include.

CHAIR: But what do you mean? What does The Salvation Army mean when you use that term?

M s Moore : Each of the elements of forced labour has its own legal definition. Slavery is essentially the exercise of ownership over another person. Forced labour and servitude—actually, I have the offences here with me if you would like to look at them. It is essentially the deprivation of another person's liberty in order to exploit them. So you have that element. I think the legal definition is where any reasonable person would feel they cannot leave—they do not have the freedom to walk away—and they are being exploited.

CHAIR: We heard from these workers this morning, and they have given us a document which we need to get translated, but essentially they went through a labour hire company in their home country who asked them to pay $3,000. They came to Australia and there was no work, so some of them then sourced another labour hire company and paid additional money. Does that start to look like labour trafficking, or is there another definition? That is exploitation, but is—

M s Moore : It is difficult to pinpoint where that happens, but it definitely has the hallmarks of it, in that there is some deceptive recruitment going on, and indeed there is an offence of deceptive recruitment. I believe you heard this morning from a worker from the Chia Tung case.

CHAIR: Yes, we did—one of the Filipino workers.

M s Moore : That is a really good example of where you have all of these layers of employers. In our submission, we referred to the Pocomwell case—which you may be aware of, being from Western Australia. It is actually really flabbergasting to see how complex the layers are.

CHAIR: With the most recent report from Fair Work Australia on Baiada Poultry, I was absolutely staggered at the layers of labour hire firms. Baiada would pay $1 million to the first company and then that would filter down, with the workers still being paid $7 an hour.

M s Moore : Whether that constitutes labour trafficking is another thing.

CHAIR: Yes. I was not asking that. I was just giving that example. I was talking about promises that are made in a country—

M s Moore : Absolutely. That is the essential cornerstone of it. You have agreed conditions and then you have actual conditions. When you are looking at human trafficking for labour or otherwise, you will have a recruitment process where someone is agreeing to a certain set of conditions—pay, working conditions, hours and so on. Then when they get here it is very common that that will change. You were picking up on the passport issue in the previous evidence; that is also very common. Although, we have seen that, over the last 10-12 years, a lot of traffickers are becoming pretty savvy. They will no longer do that because that can be very easily used to incriminate them. So they find other, more subtle ways to control people. It is very psychological. There is a lot of manipulation of cultural dynamics.

CHAIR: Regarding page 8 of your submission, can you step up us through the issues around deportation? I think you went to some of this in your opening; certainly, the meat workers union went to it as well.

M s Moore : This is a difficult area—

Mr Geary : To give you bit of background, Madam Chair, I run a law firm for The Salvation Army. We deal with the cases that come from referral by the safe house for victims of trafficking and other situations of exploitation, and, more broadly, from the community. These are pro bono cases. The involvement we have had, particularly in this space, has been to pursue civil remedies for victims—typically against employers. These have included some forms of victim's compensation and other bits and pieces. But, typically, these are cases against the traffickers themselves in Fair Work and in the courts. The migration aspects attached to those cases make them extremely complex because, obviously, once a person leaves a situation in which a visa condition is tied to their employer they become in breach of their own visa. The department can be of varying levels of forgiveness, depending on the person you deal with and how keen they are to let the matter come to the top of the pile of the files. Some are very compassionate; others are more by the book.

The experiences we have had have certainly played a big role in affecting whether a person is able to prosecute a civil remedy at all or, if so, whether their case is severely compromised. The other issue that has been highlighted—and which is in the paper—is the examination of the circumstances. Obviously, you are dealing with people—I am sure Mrs Moore would be able to attest to this in her clinical capacity—who have had extremely traumatic events occur to them or who may have perceptions of things that might have been threatened about family members. That sort of information does not come out in the first interview you have with someone. I will come back to the civil issues a little bit later, but Mrs Moore might like to talk about those.

M s Moore : I reiterate some of those points. The challenge that we have, as we say in the paper, is: we are questioning the space that occurs after some of these operations. You might be aware of the Carabooda market garden case.

CHAIR: Yes.

M s Moore : We understand that workers were deported within 24 hours.

CHAIR: Yes. I was surprised to read that.

M s Moore : In my own experience of working directly with victims of slavery and trafficking, that is an inadequate amount of time to properly break down the fears—who knows what their employers have been telling them about law enforcement—and establish a safe environment where people feel comfortable to disclose information that actually could be used against them.

There is a lot of talk about training first responders, and that is terrific; we welcome that. It needs to happen, because we are not identifying enough people, we think, so we need to raise awareness. But the other side of that is the culture of the systems in which people work. As Luke mentioned, it often comes down to the good graces of a single person. It does not matter how much training you provide to someone; if they are working in a culture of compliance and a culture that seems to be pushing them to make sure that unlawful workers are quickly interviewed and swiftly detained and deported, it is very difficult for that single individual to rise up out of that.

That is why we are pushing for Taskforce Cadena to take a different approach, a more victim centred approach, not just in rhetoric but actually in practice, and that requires a paradigm shift in the space around worker exploitation. We are very concerned that we are deporting potential trafficking victims and, even if we are not, that we are depriving a large group of people of access to justice that they should be entitled to. We understand that none of those workers from the Carabooda case that have been deported will be able to regain their back wages.

CHAIR: No. The meatworkers union made that exact point. I assume those Carabooda workers in Western Australia came here somehow, on some sort of visa, and presumably it expired. They were without a visa, they were exploited and then, as you say, they were just whisked out of the country—because the emphasis is on the numbers: 'We deported 21 illegal workers.'

M s Moore : That is actually another point. It is very common for a trafficker or a slaveholder to induce or force someone into unlawful status; and, when these things happen so quickly, it is difficult to determine to what extent these folks have been properly screened for that and to ensure they are not being penalised for the behaviour of their employer.

CHAIR: Yes. Without giving them the opportunity to tell their story, we are not really getting to the source of the problem.

Mr Geary : Yes, and these are highly traumatised people in many instances. The only screening they may get is if asked whether they wish to make a protection claim; and, if they say no, they can be deported. But the witness protection visa for the prosecution of trafficking offences is a very different pathway, a very complex pathway, and the AFP would no doubt attest to the fact that they are not in a position to assess a person for eligibility until they have had a series of sessions with them.

CHAIR: Well, it is not their role, is it?

Mr Geary : No.

CHAIR: No.

Mr Geary : So the department, I think, really deprives people of the opportunity to claim a right that they have under law.

CHAIR: Would the market garden have been fined? I guess we do not even know if they were using a labour hire company or directly employing them or what.

Mr Geary : It is against the law, obviously, to hire someone in breach of visa conditions, whether or not they were actually fined.

M s Moore : My understanding from multiple conversations with different people is that there are a group of employees of the company who are being prosecuted for serious crimes—money laundering and whatnot. For whatever reason, the CDPP—

CHAIR: Who is the CDPP?

M s Moore : the Commonwealth Director of Public Prosecutions—

CHAIR: Right.

M s Moore : chose not to pursue any of the offences under the Migration Act or any slavery or trafficking offences.

CHAIR: But, given there are those other offences, it sounds like it is a much bigger operation.

M s Moore : Yes. There were firearms on site. There was money laundering, I believe. There were a range of other crimes that are very commonly associated with human trafficking. Colleagues in Perth who have helped a small group of workers bring a Fair Work claim for unfair dismissal and whatnot have been able to gather, from the folks who stayed, a bit of information about the people who were deported. You had at least two cohorts of workers on site—and this is also very common: you might not be aware that there are a group of people there who are just being exploited and then another group who are there under other conditions.

CHAIR: In your recommendation 9, on page 17, you make the point that for domestic workers one of the ways to keep a check on them is to get them to report on a monthly basis to—

M s Moore : Not necessarily monthly but regularly.

CHAIR: But that in itself would be intimidating, wouldn't it? If the employer knew that the worker had to go and say 'everything's rosy' on a regular basis, wouldn't the intimidation be on that worker at all times—'You say the right thing or you'll be going back to your country.'?

M s Moore : When you look at help-seeking behaviours you see that one of the key things is to get a person alone. For instance in the health sector it is very commonly known to be an intervention point that is frequently missed, and it is because unfortunately hospital staff will allow the person who is the trafficker to interpret for the victim. My own clients have faced that where they have ended up going back into a situation because they did not have the time alone to say, 'I need help.' Our experience with domestic workers, particularly those coming out of diplomatic households in Canberra—some of the abuse would shock you.

Senator McKENZIE: I think we are getting less shocked in this inquiry.

M s Moore : The things that you heard this morning about working conditions—honestly, it gets so much worse unfortunately. And it is not just physical abuse; it is absolutely humiliating, degrading treatment.

Senator McKENZIE: Is it illegal treatment?

M s Moore : It is illegal treatment. Unfortunately just being illegal does not make it an impediment. It just happens. It happens and it continues to happen because people think that they are above the law, and particularly so in the diplomatic community. I do not want to vilify all diplomats but I have seen horrendous abuse in diplomatic situations. We wanted to include the 401s, because we have also seen cases—less in Australia but I have seen cases in the US—of business executives who travel around the world and bring their domestics with them. Again those situations can be very difficult to escape because there is little time alone. So having these health and welfare checks is the best thing; it is the only way we can guarantee that these workers are provided that opportunity to speak with someone privately and say, 'I need help.' It is not a perfect fix, because, again, there are disincentives to disclosing things. Their employer may be baiting them with promises of other things—'Don't say anything and I'll give you this'—so I am not asserting that it is a silver bullet. But it is one stage in a series of things that need to be addressed.

Mr Geary : My particular experience has been in relation to cases we have run against diplomatic staff. On that point—

Senator O'NEILL: This is in Australia now?

Mr Geary : Yes—staff in Canberra. Certainly the opportunity to meet one on one in a safe environment with an independent interpreter is something that some of the clients have reported back would have changed their circumstances—would have reduced the period of time they were in that relationship. The clients we see obviously have escaped at some point. So it is not a lack of willingness to escape; it is the time when they have the opportunity. One of the issues that Mrs Moore was talking about is the crimes that are being committed. My experience has been that the barrier of diplomatic immunity is one which has the AFP significantly stifled for obvious reasons. That is something that is being raised in civil defences as well in cases we have run against diplomats, but there are exceptions to it. The challenge that could be put to the department is to require diplomatic staff to have a condition attached to their visas requiring them to comply with Fair Work. So any breach of Fair Work, even just a simple one such as compliance with the NES insofar as minimum wage is concerned, could constitute a breach of a visa condition.

To give you an anecdotal understanding, we acted for a lady who escaped from a situation with a diplomat then had the difficulty of not being in compliance with her own visa conditions. In this particular case the department was very understanding and gave her a significant period of time to find a new employer. So she went from embassy to embassy throughout Canberra, and I saw the offers of employment that she was made in writing by these embassies. These were $6 an hour, $5 an hour offers from embassies that would surprise you—Western embassies that obviously have an understanding of labour laws in their own countries but no desire to comply with them in ours. This poor lady had no choice but to reject those offers until, ultimately, she found one. But she was in a similarly exploitative situation there, before she left. There is a culture of getting away with a lack of compliance with Australian civil and, certainly, criminal laws.

As in that experience, the ability to stay in Australia to prosecute a civil action is difficult for people. If you are living back in your own country or in a third country, the immediate challenge in any civil case you bring is, firstly, the requirement that you be present in the jurisdiction to give evidence. Secondly, the first application the other side will make is one of security for costs, and these people simply do not have anything to put up for costs if proceedings are stifled.

M s Moore : Chair, in our submission, we mentioned a forthcoming domestic-worker paper. I brought a copy of that today.

CHAIR: Lovely. If you could table that, that would be great. Over to you, Senator O'Neill.

Senator O'NEILL: I want to go to the three key points in your opening statement, the first of which I heard as rebuilding the system from a protective framework. You have talked about some of the dimensions of that. You talked about a paradigm shift in the way we look at this, because, while there is protection under the law, we know from the people we have already spoken to this morning—and I think you have articulated it again—that there can be an awful gap between where a person finds themselves and where the law might provide them with protection. So I am interested in you fleshing out for us a little more what you mean by a protective framework and how that would change current practices.

M s Moore : Succinctly: time; a review of protocols; and not detaining and deporting people. I think we need to slow things down a little bit. I am not exactly sure why some of these things need to move so quickly.

I draw your attention to an article that came out on 1 June, I believe, in the Herald Sun. It is the only article I could find on the case. This is the case out of Shepparton, Victoria; you may be aware of it. This was part of Operation Cloudburst, which was, I think, one of the first in response to this wave with Taskforce Cadena and so on. They discovered over 70 illegal and unlawful workers. The article indicated that there were indicators of slavery and trafficking, and that human trafficking specialists were present at the time of the operation. What troubled me was that the article also said that the workers were expected to be deported within a few weeks. Now, the National Action Plan to Combat Human Trafficking and Slavery—I have brought a copy; it is a bit worn out—states very clearly under action 59 that no worker, where there are indicators of slavery and trafficking, should be detained; and, where there are indicators, they should be provided with a bridging visa. We are not, unfortunately, in a position to confirm things; we have to go on what we are told. But what we are able to see from media reports and from evidence that we have been able to gather from local stakeholders is that these things are happening so quickly that there is no way for us to confirm whether people are actually being properly screened and, as I said earlier, in what kind of environment. It is terrifying being a part of these operations. I have images of people just after these types of raids, and the fear in their faces is quite apparent. So it is about slowing things down.

Another way to do this is to engage civil society, and this is something that we are taking to our partners in the anti-trafficking sector quite a bit. NGOs are well placed to provide crisis intervention, alternative housing to immigration detention and independent legal advice. There is some international research and evidence that indicates that, if you provide these services in the crisis period, you increase the likelihood of those people becoming more stable, more empowered and more willing to cooperate in a criminal justice process. Unfortunately, we are just not seeing that. So it is about time, it is about reviewing screening protocols and it is about engagement with civil society to help stabilise people, and frankly not deporting people in such short time frames.

Senator O'NEILL: Your second recommendation also spoke about a proposal to link workers and their spouses with community based support, which I think follows on from Senator Lines' comment about connecting people more formally with community. Is that happening anywhere? Is that being trialled?

M s Moore : It is happening organically in some places. There are some really exciting things happening. This could happen in one of maybe three or more ways. I have three ideas for you today. One is looking at the settlement services framework. Temporary workers are not entitled to those services, by and large—and I do not know if my partners in the settlement sector would agree with that; I am trying to have conversations now. I think that is one framework that we could look at.

Another one are the DSS social inclusion grants. We could look at ways to encourage communities to seek out ways to build inclusion. I guess we could list this group as a target to get those grants. A third are some exciting organic things. I had the pleasure of meeting with Keith Pitt's staff member earlier this week and they have started a Facebook page called 'Support our backpackers'. It is another avenue for people to come together, share stories, share resources, share information and build that organic support.

Senator McKenzie may also be aware, perhaps you are all aware, of Nhill in Victoria and the great work that they have done to welcome refugees into their community. I think that is another really great way to do it. I think that could actually provide a template for the safe haven enterprise visa scheme. We raise that in here. There is no information available about that scheme. But we need to make sure that we are setting up some kind of supportive framework so that asylum seekers who are settled out in regional areas are not subject to exploitation. Does that answer your question?

Senator O'NEILL: Thank you.

Senator PERIS: Mr Geary, you touched on migrants being deported and that the exploitation and potential slavery was being investigated and the issues surrounding that. Do you have any suggestions on how best to deal with that?

Mr Geary : Focusing on the people who were on diplomatic visas, the challenge that I have experienced has been that if the Federal Police cannot identify a potential offence, a person cannot then access the witness protection pathway for a trafficking visa because the Attorney-General is not going to certify a person as falling within that framework, so it never gets to the department. The reason for that is that the offenders are claiming diplomatic immunity. There are people who are otherwise victims of trafficking who are missing out and therefore they are left hanging without the ability to get on any visa.

There are two types of assessment. One is the assessment for a criminal remedy—as in a prosecution—and the ones Mrs Moore spoke about, the need to give a person the right circumstances to disclose what happened and to treat them therapeutically. The other is the ability to get some advice and to consider what civil remedies they might have. We may not be talking hundreds of thousands of dollars. But for a person who is supporting a family from, say, the Philippines or wherever it might be, $10,000 of unpaid wages is a very significant thing.

The bringing of an action is a very complex thing. First, the person has to have information and advice, and then they have to have a supporter to bring a case for them. Often it will have to be on a pro bono basis. So obtaining representation is a challenge. If they can overcome that hurdle, staying in the country is an even bigger challenge because if they are not on another visa, it is a matter of time before the department will say to them, 'You're an unlawful non-citizen and you must be deported.'

These proceedings are complex. The ones I ran in Fair Work in Canberra about 18 months ago ran for about 10 months before the case settled. If they were going to run to a final hearing, it would have taken probably 18 months because of interlocutory arguments on immunity and the application of that to civil proceedings as well as the remedies we were seeking, which were by nature a series of penalty orders against the employers and asking the Fair Work Commission, and ultimately the Federal Circuit Court, to apply those penalties in favour of the employee, which is a novel sort of a remedy.

You are looking at a significant period of time for a person to be able to exercise their rights, and unless there is some holding mechanism to allow them to obtain the outcomes, the person's action is going to be stifled. There is no reason, I would have thought, why a bridging visa could not provide that opportunity or some other exception through ministerial discretion to allow a person to stay for a period of time. The persons whom I have come into contact with have not necessarily wanted to stay in Australia on a permanent basis; they just want to pursue the outcomes they are otherwise entitled to. So you are not necessarily looking at people who are seeking to exploit the opportunity that comes with being of a particular class to get a right for a permanent pathway; it is people wanting to be able to get what they are entitled to.

M s Moore : We are making a very specific recommendation under this issue. In regard to the case that Mr Geary referred to earlier where our client was able to remain, she was required to stay on, at the time, a 426 but now a 403 visa. We are specifically asking for a bridging visa to allow people to go outside of that. We would submit that regular reporting into immigration would be acceptable for that to maintain contact with that person. Again, it is about providing that flexibility with untethered work rights for the duration of the civil case.

Mr Geary : The submission by Mr Clibborn in respect of the comments regarding the definition of a worker and the complexity that was thrown up by the decision of the Queensland Court of Appeal in Australian Meat Holdings and Kasi are endorsed by The Salvation Army.

CHAIR: Thank you. Thank you very much for your very thorough submission and for the recommendations you have made. We appreciate the effort you have taken to be here today.