The unknown victims of trafficking

By Annika Reynolds

When you picture the ‘typical’ victim of trafficking, who comes to mind?

The average Australian looks at her and sees someone of Middle Eastern descent. They see a woman that has been smuggled into the country by an international organised crime network. They say poor English skills, no freedom of movement, and no personal documents are evidence of her situation.

But she is not. She is not Middle Eastern; in fact, she is mostly likely from a South-East Asian country, likely Thailand or Malaysia. She has not been smuggled in. Rather, she walked in through an airport on a student or working visa. The people that got her here are not members of foreign crime syndicates, but Australia-based recruiters. The only determinative characteristic that she holds is that she likely comes from a background of extreme poverty. Not illiteracy. Not age. Not lack of personal documents or freedom of movement. But desperation.

She is the unknown victim of trafficking.

Australia is a country preoccupied with its borders. A country that feels justified in limiting Humanitarian Program visas to roughly thirteen thousand a year and boasts that it has ‘stopped the boats.’ And that fear of the unknown, of the foreign, has bled into the Australian psyche. So much so, that when asked what a victim of trafficking is, the average Australian recites the offence for people smuggling.

In reality, the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children defines trafficking as:

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.

The exploitative nature of the conduct is key, usually translating into sexual exploitation, forced marriage, forced labour, slavery, servitude or the forced removal of organs. Whereas people smuggling is merely illegal movement, trafficking is concerned with forcing individuals into a situation of modern slavery.

In Australia, only thirteen people were convicted of a trafficking offence (under Division 270 and 271 of the Commonwealth Criminal Code Act 1995) between 2004 and 2011, which suggests that trafficking is not a serious issue in Australia; that perhaps a warped Australian perception of trafficking is relatively harmless; that maybe it is okay that Australians blur the lines between trafficking and people smuggling. Is it really a threat to Australia, or to our community if this is such a minute problem?

But the story woven by official convictions, like Australia’s general perception, intersects only marginally with the reality of trafficking in Australia. The AFP’s Transnational Sexual Exploitation and Trafficking Teams investigate an average of 50 cases a year. But the Global Slavery Index casts an even bleaker picture, estimating there are roughly 15,000 people who have been trafficked or are in servitude in Australia as of 2018. A figure equal to the number of undergraduate students at ANU, living in modern slavery. Enough people to fill a campus, suffering exploitation, abuse and coercion.

The Australian government’s response has been regulated by the National Action Plan to Combat Human Trafficking and Slavery (2015-2019). The document outlines Australia’s commitment to a ‘future where no one is subjected to human trafficking or slavery’, and does in fact lay out a comprehensive and rigorous plan to achieve this vision. The strategy covers everything from AFP, state and territory investigation processes, to victim support groups during investigation, trial and afterwards, to regional engagement with the Asia Pacific in the hope of limiting the flow of trafficked persons. NGOs, like Anti-Slavery Australia, praised the document upon its release as establishing a regime that is capable of realising the Plan’s ambitious purpose.

So why is it that in 2018 there are still 15,000 people suffering? Why is it that convictions are so low? Why is it that the average Australian cannot define trafficking, let alone pinpoint the demographics most affected?

The problem is not the framework. The problem is that we have closed our eyes to the reality of modern slavery. The problem is that we have developed a culture that fears the external, the unknown, and by doing so has sacrificed the self-reflection necessary to fight back against the exploitation occurring within our borders.

In its 2016 review of the National Action Plan, the Law Council of Australia called for two major reforms: That the government ‘take a human rights approach to all efforts to prevent and combat these offences,’ and ‘protect, assist and provide redress to victims’. The review recommended the establishment of a national compensation scheme, and of an independent review of the Minister for Immigration’s power to unilaterally cancel a visa that a trafficking victim may be staying on. This review demonstrates a reality in which the basic components of the National Action Plan have not been implemented.

It is an indictment on the Australian government – not just Parliament, but the whole machinery of the public service – that the only major review of its National Action Plan asks for human rights to be given priority.

Truth and perception rarely intersect on the issue of trafficking. The Australian government’s commitment to end trafficking is a glossy palimpsest over the cold reality. But like all superimpositions, this carefully crafted humanitarian image is cracking around the edges.

It is our responsibility to make sure those cracks widen. To hold our government responsible for the victims of modern slavery that walk amongst us. To change the Australian narrative, so that rhetoric and reality do intersect.

To make the unknown victims of trafficking known.

Legislation LOLs

Here at ANU Law, we hear a lot of talk about law reform. From anachronistic laws with impenetrable drafting, double negatives and sentences running for paragraphs, to provisions which offend our modern sensibilities and sense of social justice, there is certainly a lot of work to be done when it comes to updating legislation. However, there are some salacious sections which we believe are just too good (or bad) to be true. So, for your reading pleasure, we present our top five wow-react inducing legislative provisions.

Section 26, Government Procurement Act 2001 (ACT)

The section itself isn’t that interesting (it defines ‘notifiable amendment’) but the example it uses is. The example used to explain the definition reads in part ‘The consideration for a contract between the Territory and Acme Pty Ltd for the supply of road runner retention devices is $240,000.’ Is Andrew Barr actually Wylie Coyote? We may never know.

Section 7, Inclosed Lands Protection Act 1901 (ACT)

Another gem from our fair capital is this section, entitled ‘owner may destroy goats’, allowing owners or occupiers of inclosed lands to ‘destroy any goat found trespassing thereon.’ Although we know what they mean by ‘destroy’, as with the use of Acme explosives in the example above suggests, the ACT Legislative Assembly seems to have an unhealthy obsession with destruction. Also, this is a terrible use of goats – we all know that goats in university petting zoos are the cure to depression and anxiety. ‘Donate, don’t destroy’ should be the by-word for anyone lucky enough to find a goat on their property.

Section 22, Marketing of Potatoes Act 1946 (WA)

Well, this one might mark the end of fruitful Costco trips for Western Australians. Under s 22, it is illegal to be in possession of a quantity of potatoes exceeding 50 kg. Whether this includes being in possession of 50 kg of Maccas French fries remains to be seen.

Section 21, Summary Offences Act 1953 (SA)

Illuminati uncovered! If you want to be in possession of a prescribed weapon under the Summary Offences Act, the key is apparently to be a Freemason. Freemason organisations are exempt from an offence under the Act concerning the possession or use of a prohibited weapon. But fear not, if you’re a Freemason you can still use your weapons for ‘traditional ceremonial purposes’. Want to rob a bank? Easy! Become a Freemason and make it a ritual, and you’re good to go.

Section 50, Summary Offences Act 1953 (SA)

Is there anything more fun than ringing doorbells? If you’ve ever listened to Collette’s 1979 hit, which we consider an ode to this hilarious, enjoyable activity, then you’ll know the answer is no. But don’t drop out to devote more time to this thrilling pastime loved by pranksters worldwide just yet: in South Australia, it’s illegal to ring a doorbell without reasonable excuse.

The Notorious RBG

By Suchara Fernando

At the beginning of this semester, I saw the documentary RBG which traces the life and career of Justice Ruth Bader Ginsburg and was instantly inspired and motivated. In fact, I was so enthused with the film that whenever I lost enthusiasm for my studies or work I re-watched it. This led me to consider just what it is about Justice Ruth Bader Ginsburg that is so inspiring: is it her position of judicial power, her trail-blazing decisions in women’s rights cases, or her resilience in the face of adversity? The only possible answer seems to be  a combination of all of the above. At a time when rejections seem endless, and the world seems plagued with negative news, RBG is a reminder that there is so much good one can do in spite of the obstacles placed in our way. Although I heartily recommend watching RBG, in case you’re too time-pressured, I took one for the team, re-watched the film again, and have summarised the key, motivation nourishing points below.

The Notorious RBG

Justice Ruth Bader-Ginsburg is an 85-year old woman with a demur manner, and a soft-spoken voice who is now commonly known as ‘Notorious RBG’. The nickname – inspired by the rapper Notorious B.I.G. – was born on a Tumblr account as an ode to her many dissents on the bench. Ginsburg grew up in Brooklyn during the depression and lost her mother at a young age, attending Cornell University before going on to meet her husband Marty Ginsberg at Harvard.  

Women have brains?

Although Ginsburg was blessed with a sharp intellect, she cut her teeth in an environment that discouraged women from studying and pursuing a professional life. She describes the women at her undergraduate university, Cornell, as brilliant women who had to suppress their ability. Fortunately, Ginsburg never did this and when she began law school at Harvard, she made the Harvard Law Review in her first year. However, her time at Harvard was rife with sexism, and an understanding of her experiences there makes you consider how far we have come. Ginsburg was one of only nine women at Harvard Law, in a class of approximately 500 students. In the documentary, she recalls when the Dean of Harvard Law asked her, in front of other students, to justify taking a spot from a ‘qualified man’. Then there is the story of her being prevented from entering one of Harvard’s libraries, Lamont Library, which was closed to women when she attended the university in the late 1950s. Ultimately, Ginsburg drew on these experiences to motivate herself to fight for women’s’ rights, a fight which is ongoing but in which Ginsburg has had a large hand in pursuing.

Columbia and a career

RBG’s career as a lawyer began similarly to her university studies: plagued with overt sexism. With her husband starting a job in New York City, Ginsburg had to transfer to Columbia University and completed her studies there, graduating at the top of her class. However, despite this massive achievement she was unable to find a job and received 14 rejections from various law firms. These rejections were delivered on the grounds that the firms did not hire women. Ginsburg being a wife and mother at the time did not help either. Again, this adversity would see her resilience shine as she volunteered with the American Civil Liberties Union (ACLU). This allowed her to start strategizing and selecting cases that would challenge the discriminatory practices she had witnessed in her own life.

Weinberger v Wiesenfeld

In her role at the ACLU, Ginsburg argued six gender discrimination cases before the Supreme Court between 1973 and 1975, five of which she won. She was acutely aware of the work importance of what she was doing and only took cases that would be able to shed light on the various iterations of inequality in American society at the time. She was, furthermore, unafraid of a Bench consisting of men. One case that demonstrates Ginsburg’s strategic thinking is Weinberger v Wiesenfeld 420 U.S. 636 (1975): the case saw Ginsburg defend Wiesenfeld, whose wife had died during child birth. Wiesenfeld had become the sole carer and provider for his newly born child. He applied for Social Security survivor’s benefits but soon found that he was eligible as he was a widower, and these benefits were only for widows. Ginsberg argued that Section 402(g) of the Social Security Act discriminated against Wiesenfeld by not providing him with the same survivors’ benefits as it would do a widow. Further, Ginsburg argued that Wiesenfeld’s wife’s contribution to social security was not treated on an equal basis to a man with a wage and that she too had been discriminated against. The Supreme Court decided unanimously in favour of Wiesenfeld that section 402(g)in the Social Security Act was unconstitutional on the grounds that the gender-based distinctions violated the Fifth Amendment. The key takeaway from this case is that it forced the Supreme Court – a Bench that consisted solely of men – was forced to consider that gender discrimination was not merely a women’s issue, as Ginsburg highlighted that the social security provision had discriminated against men acting as caregivers and women serving as bread winners.

Challenging the status quo

Just as Ginsberg did not shy away from taking on cases that challenged the status quo as a lawyer, she continues to question the powers that be while serving as a Supreme Court Justice. Sitting on a predominately conservative bench, she dissents often. In fact, she has a specific collar for her robe when she dissents, showing that dressing à la mode and the Supreme Court aren’t mutually exclusive. Cases in which this collar has been donned include matters concerning voting rights (Shelby County v Holder, 570 U.S. 2(2013), access to education (Schuette v Coalition to Defend Affirmative Action 572 U.S. (2014), religious freedom (Burwell v Hobby Lobby Stores, 573 U.S. (2014). Her commitment to pursuing social justice and being unafraid of her peers on the Bench to pursue social justice is remarkable.

At 85, Justice Ruth Bader Ginsburg shows no signs of retiring despite multiple battles with cancer. She has expressed commitment to serving the Supreme Court of the United States until she is no longer mentally able to do so. Although her perseverance, intelligence and spritely spirit are nearly unfathomable, RBG succeeds in shedding some light on an accomplished, resilient and inspiring woman.






Asking ‘What are we?’: Looking at WorkPac v Skene

By Janine Wan

So, they’re giving you mixed signals – they said they weren’t looking for anything serious, but their actions seem to be saying otherwise. It seems like it might be time to have that ‘what are we’ talk and figure out where this relationship is going.

Think I’m talking about your love life? Think again. I’m talking about your employment relationship, and if you’ve got a casual job, you might want to pay attention – the landmark decision of WorkPac Pty Ltd v Skene is shaking things up.

What happened?

Paul Skene was a casual truck driver at a mine in central Queensland for a period of just under two years between 2010 and 2012. He was employed by a labour hire company, WorkPac Pty Ltd. His employment by WorkPac was terminated on 17 April 2012, and he received no payment as compensation for unclaimed annual leave upon termination.

Contracted as a casual employee, Skene was paid a flat rate by the hour – the contract specifying that he would receive casual loading in lieu of leave entitlements. However, his roster was set in January for the rest of the year – a rotation of a full seven days one week with 12.5 hour shifts each day, and then a week-long period of no shifts. During his employment, he took seven days of unpaid leave and received no paid leave.

Skene argued that, since his employment was continuous, he was entitled to the six weeks of annual leave and annual leave loading that permanent employees were entitled to, under clause 19.1.1 of the WorkPac enterprise agreement. In addition to the compensation for unclaimed annual leave, Skene also sought for pecuniary penalties to be applied to WorkPac for these breaches.

His assertion was this: although he was classified as ‘casual’ under his contract, he was actually not a casual employee under the Fair Work Act, (‘FWA’) and was entitled to annual leave under the National Employment Standards (NES). Of course, WorkPac disagreed, claiming he was employed on a series of separate casual engagements.

Let’s go to court!

At first instance, the Federal Circuit Court found that Skene was a casual employee for the purposes of the WorkPac Agreement, as he was contracted and paid as such. However, despite the label that WorkPac put on the work, the common law test for employment type examines the actual substance of the employment relationship. As such, Skene could still be found to be an employee ‘other than casual employees’ under the FWA, and entitled to annual leave. Indeed, Skene’s relationship with WorkPac, upon examination, seemed more like a permanent one: his work schedule was predictable, consistent, and continuous.

And so, the Court found that Skene should receive compensation for unclaimed annual leave entitlements under the NES. However, because of WorkPac’s ignorance of the relevant law and since Skene was considered a casual employee under the WorkPac Agreement, the Court declined to impose penalties.

Let’s go to court (again)!

WorkPac appealed the decision, and so did Skene – objecting to the lack of penalties imposed on WorkPac. On appeal, the Full Court upheld the decision that Skene was not a casual employee – but with caveats and some further analysis.

Firstly, it clarified the relationship between the NES, employment agreements (such as the WorkPac Agreement), and modern awards (entitlements such as pay, hours of work, etc). The court held that the NES comes out on top and applies to all employees. This means that no matter what the other documents may say, it is the actual characterisation of the employment relationship that matters. And so, the Full Court disagreed with the primary judge, and found that, even under the WorkPac agreement, Skene should not have been labelled as a casual employee.

Secondly, the Court examined the method for determining what a casual employee is. In accordance with previous case law, we are told to look for the ‘essence of casualness’, which includes ‘informality, uncertainty and irregularity of the engagement’ – all of these factors were missing in the arrangement that Skene had with WorkPac.

Thirdly, the Court dispelled the issue of ‘double dipping’ – the idea that Skene benefitted twice from this finding by receiving both casual loading rates and paid annual leave. Here, they found that it was unclear if Skene had even been paid casual loading, since he was paid a flat fee. Additionally, they referred back the primacy of the NES and reaffirmed that arrangements regarding benefits are to be determined by the actual characterisation of the employment relationship. This means that, even where lack of access to annual leave was offset by casual loading, the FWA is clear that it cannot do so completely. And so, even though WorkPac may have intended to pay Skene casual loading, the uncertainty of what portion of his remuneration this made up, as well as the fact that compensation in itself is not enough to completely remove access to such benefits, meant that this amount did not remove Skene’s entitlement to annual leave.

Finally, the Full Court remitted the issue of penalties to be imposed on WorkPac to the primary judge, as ‘although an unknowing contravention will diminish the objective seriousness of a contravention, ignorance of the law is not ordinarily excusatory’.

Okay, but how does this affect me?

If you are currently a casual employee, you might want to ponder this: despite labels, does your employment relationship have that ‘essence of casualness’ in its substance?

Following this decision, employers may consider changing your work arrangements or may even offer full-time employment if they think you might be like our pal Skene here. We will also likely see contracts being revised to clearly identify the payment of casual loading as a separate amount from hourly wages, since this was addressed specifically as an oversight in the WorkPac Agreement.

This case has definitely caused a stir. Many have called for Parliament to change the FWA due to the uncertainty that this presents for employers. And although the union movement sees this as a positive step, the Australian Council of Trade Unions is amongst those asking for clarity.

Indeed, the lack of a clear definition may mean that the currently prevalence of casual employment may no longer be so attractive to employers. As these issues become more complex and involved, casual labour hire on a systemic level may be considered impractical or uneconomical – especially since hiring long-term casuals can actually be more expensive for employers than a permanent employee. With this legal development in mind, employers may have to reconsider their strategy for addressing rising demand for more staff.

And for those looking for casual employment? Job-hunting might have just gotten a little more complicated.