On 26 September 2001 Ms Puangthong Simaplee died in Vilkwood Detention Centre after being discovered by immigration officials during a raid on a Surry Hills brothel. She told the immigration officials that at a young age she had been sold into sexual servitude by her parents and trafficked from Thailand to Maylasia, then re-trafficked to Australia more recently as a young adult. After being discovered, Ms Simaplee was detained in Villawood Detention Centre as an unlawful non-citizen, weighing 38kg. Three days later, weighing only 31kg, she died as a result of heroin withdrawal.1
The inquest into the death of Ms Simaplee remains a particularly illustrative event that highlights the failure in the Australian legal system, and particularly the migration system, to deal effectively with the phenomenon of trafficking.2 Acknowledging the magnitude of the trafficking industry and the existence of Australia as a destination country for victims of many kinds of trafficking, this paper will focus on the scope and limitations of Australia's migration and criminal justice approaches to sex trafficking. The paper will outline the nature and extent of trafficking in Australia, current responses of the Australian government towards trafficking, the successes and failures of Australia's criminalisation approach, and the limitations of Australia's visa system for victims of trafficking in regard to international standards and human rights. Finally, the paper concludes with a number of recommendations that the government adopt a transparent, coordinated, monitored and holistic human rights and social justice approach to combat trafficking and slavery, developed in conjunction with human rights and non-government organisations, to ensure unconditional culturally-appropriate victim protection to prevent retrafficking and address wider systemic issues of globaUsation, poverty and gendered harms.
2.0 TRAFFICKING IN AUSTRALIA
The United Nations 2002 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, ratified by Australia on 27 May 2004, defines human trafficking in Article 3 as:
the recruitment, transportation, transfer, habouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, or fraud, of deception, of the abuse of power of a position of vulnerability or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation.
Divergent definitions of what constitutes sex trafficking have largely characterised policy debates on the issue and dictated responses to it. When the offences of slavery, sexual servitude and deceptive recruiting were introduced to the Australian Criminal Code Act in 1995, the Act required an element of bondage or coercion to establish a case of trafficking, a legal test that was arguably more onerous than international best practice by not accepting that trafficking could result from more insidious means such as fraud or abuse of power. The Act was also criticised for failing to address the experiences of vulnerable groups, the gendered nature of trafficking and reimposing border control.3 Despite amendments through the Criminal Code Amendment (Trafficking in Persons) Act 2005 that recognised factors such as threats, force, deception or debt bondage, feminist debates linger over the extent to which women can freely consent to sex work,4 and how such frameworks should be adopted into the definition of trafficking. Some anti-trafficking organisations view women's 'choice' as limited in the context of wider socioeconomic circumstances and argue that sex work victimises women and widens gender inequality: the Coalition Against Trafficking in Women argues, 'All prostitution exploits women, regardless of women's consent.'5 Other anti-trafficking organisations defend the right to self determination and expression and recognise women's agency in making informed decisions. …