Human Rights and People Trafficking
If I were Attorney-General, I would bring a human rights-based approach to the issue of trafficking in people, putting human rights at the centre of Australia’s policy and practice on this issue. It is estimated that between 600,000 and 800,000 people are trafficked in Asia each year, including 250,000 from South East Asia. This trade in human misery is overwhelmingly driven by poverty and is underpinned by lack of respect for the rights of those trafficked. The response to human trafficking should meet this head on, by placing human rights firmly at the centre of Australia’s policy and practice response, consistent with the UN Principles and Guidelines on Human Rights and Human Trafficking.
Australia has made significant progress in combating human trafficking in recent years. There is an existing legislative and policy framework to build upon and weave a rights-based approach through. This include legislation, such as amendments to the Criminal Code, the ratification in 2005 of the UN Protocol to Prevent and Suppress Trafficking in Persons, Especially Women and Children and a number of policy documents, such as the Action Plan to Eradicate Trafficking in Persons released in 2004. Australia has also been an active participation in regional trafficking projects such as the Asia Regional Cooperation to Prevent People Trafficking Project (ARCPPT) and AusAID’s Asia Regional Trafficking in People Project (ARTIP).
Despite this, Australia’s response to human trafficking fails to address the abuse of human rights which is at its core. Instead the focus is primarily on strong law enforcement. The solution to trafficking (at least in popular political debate) is often presented as simply the apprehension and prosecution of individual perpetrators. The successful prosecution of traffickers is an important element of the response to trafficking. But it is the trafficked person, not the perpetrator, who should be at the centre of strategies to eliminate trafficking. A rights-based approach is one way to achieve this.
The Attorney-General is uniquely placed to coordinate the various portfolios involved in the response to human trafficking to encourage a consistent, rights based approach and to review legislation using a rights frame. In particular, I would move quickly to address the situation under the current visa system that makes the protection and support of trafficked persons conditional on them being both able and willing to make a ‘significant contribution’ to a criminal investigation or prosecution. Australia’s visa regime should align with the UN High Commissioner for Refugee’s statement that victim protection must be considered separately from witness protection, and that trafficked persons should be entitled to adequate protection under any circumstances, irrespective of any decision to instigate judicial proceedings.
In addition, Australia’s current approach to human trafficking requires a shift in focus so that it begins to effectively protect the rights of all trafficked persons, not just specific groups. The Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 refers to the trafficking of ‘persons’, not just women and children. But in practice the focus is on women and girls and men are overlooked. Similarly, while the 2005 Act acknowledges labour trafficking, the focus of the Australian response has been on trafficking for sex.
As Attorney-General, I would champion a response to human trafficking which takes into account the complex factors, conditions and rights violations that lead to human trafficking in the first place. I would promote an approach which acknowledges the realities of trafficked persons, who have generally had many other rights violated before, during, and after being trafficked. A truly effective approach to eliminating trafficking must encompass and respond to these realities. By taking a human rights approach, my Department and the Government would be able to offer responses to trafficking which address the poverty-related rights abuses which underpin and work to eradicate the conditions which allow trafficking to flourish.
Trafficking should be explicitly defined as a human rights violation, rather than one manifestation of other broader violations. Ultimately, trafficking should be ‘mainstreamed’ as a full status human rights violation, rather than just an issue affecting women and children. Dealing with human trafficking in this way could also demonstrate the way in which a human rights-based approach can be taken to many of the key issues facing Australia today, including immigration, foreign affairs and Indigenous affairs. As Attorney-General, my ultimate aim would be to see Australia bring a rights-based framework to all law and policy making.
Fiona McLeay is General Counsel of World Vision Australia. Human trafficking is a key focus of World Vision Australia's current campaigning activity.