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Stop the traffic


Cite as: (2006) 80(12) LIJ, p. 24

Australia is not immune from the trafficking of women and children across international borders – a multi-million dollar business run by transnational crime syndicates.

The secret and illicit trade of trafficking women and children is growing, despite transnational legal efforts to stamp out the practice, according to Clayton Utz lawyer Udara Jayasinghe.

“Global economic changes mean more women are migrating in order to work as nannies, maids, sex workers, dancers and factory workers and many fall victim to illegal and unscrupulous trafficking net-works,” Ms Jayasinghe said.

The Clayton Utz administrative law litigator has a longstanding interest in human rights, having completed a Master of Laws which included research on sexual and gender-based violence and the international protection available for women.

Ms Jayasinghe’s work at Clayton Utz has included acting for the Department of Immigration.

The transnational law enforcement system which exists to combat trafficking includes the UN Convention Against Transnational Organised Crime 2000, along with separate protocols addressing trafficking and smuggling.

The Protocol to Prevent, Suppress and Punish Trafficking of Persons, Especially Women and Children, adopted in December 2000, provided the first agreed-on definition of trafficking.

Article 3(a) of the Protocol defines “trafficking in persons” to mean: ... the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

However, while the UN’s smuggling and trafficking protocols provide some form of witness and victim protection, the obligations under both protocols are optional.

“[The] main limitation of the transnational law enforcement regime is that it is more focused on crime control and the protection to be given to witnesses in criminal proceedings,” Ms Jayasinghe said.

“Very little attention has been given to the fact that trafficked persons are victims of serious human rights violations, and in some cases require long-term protection.”

The UN Convention on the Status of Refugees 1951 (and the Optional Protocol of 1967) states a refugee is a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country ... ”.

Protection provided for trafficked persons under international law is not durable, except when they fall under the Refugee Convention.

“Clearly, the trafficking experience includes forms of exploitation such as abduction, incarceration, sexual enslavement, forced prostitution, forced labour, removal of organs, physical beatings and starvation and such acts would ordinarily amount to serious human rights violations. So proving that persecution has been suffered by such victims would not be an onerous task,” Ms Jayasinghe said.

In Australia, the recent case before the Federal Magistrates Court – VXAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FMCA 234 found Thai women who had been trafficked to Australia and had cooperated with law enforcement authorities constituted a “particular social group” at risk of being persecuted on their return and should therefore be given protection under the Refugee Convention.

“This is a very useful legal precedent for the protection of trafficked women in the refugee context,” Ms Jayasinghe said.

Ms Jayasinghe said the challenge for advocates of trafficked women was to ensure that each woman was seen as a rights-bearing individual who had been caught up in a global industry and a politically-sanctioned market, rather than being viewed simply in terms of their potential to act as a witness for a prosecution.

“I think it is important that refugee advocates are abreast of the very nature of sexual and gender-based persecution and identify how trafficked victims could be included under the Refugee Convention.

“The United Nations High Commissioner for Refugees (UNHCR) in April released guidelines for the protection of trafficked victims which discusses in some detail what conditions could amount to persecution which would allow them to be classed as a refugee,” she said.


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