The case for compensation

Jennifer Burn

Photo of Jennifer Burn by Joanne Saad

In summary: 
  • Internationally, over 12 million people are in forced labour and 2.45 million have been trafficked across borders
  • Victims of slavery and trafficking in Australia are entitled to compensation, yet few know their rights
  • Director of UTS’s Anti-Slavery Project, Jennifer Burn, and Senior Counsel at the Victorian Bar, Fiona McLeod, talk to U: about why compensation can be difficult to obtain and how they’re working to create a national scheme to support victims

Jennifer Burn
There still aren’t reliable statistics for the number of people trafficked into Australia. We have some statistics which say certain numbers of people have been identified as assisting police, but we think there are many more people who aren’t identified at all.

Compensation can make an enormous difference to a person’s life. But applying for compensation isn’t easy. In each state and territory there’s a different victim compensation scheme with different threshold requirements, eligibility requirements, burdens of proof and outcomes.

In addition, there are other ways trafficked people might be able to get financial compensation – workplace protection legislation or the state industrial legislative schemes, through common law, through tort law or contract law.

We’re trying to build a bridge between the civil and the criminal and see what’s available across the board. It’s really thrilling and we’ve got a number of cases already underway.

Our approach to the law is based on the real-life experience of people who have been trafficked. We want to see what the pathways to compensation are. Sometimes we think about the possibility of introducing a national victim compensation scheme and that’s also something we’re researching.

On Friday 8 October, the Anti-Slavery Project is hosting a seminar – Remedies for trafficked and enslaved people.

The seminar reflects the growth of our work over the last few years. We’ve been operating and advising trafficked people since 2003 and a lot of our work to date has focussed on the very important issues of protection, especially through the visa framework.

Our focus now is to ensure every person who has experienced trafficking has access to victim compensation. Trafficking and slavery are quite new areas in Australian law; the criminal law’s only been in effect since 2005.

At the seminar I’ll be facilitating the panel and talking about the need for an effective remedy, including visa protection, victim support and financial compensation or reparation for crime.

Fiona McLeod will also be talking about avenues for compensation. I’ve selected Fiona because she’s a national trailblazer. She’s an outstanding Victorian lawyer, she’s done an enormous amount of pro bono work in this area and she is the lawyer who took the first victim’s compensation case to the NSW Victims Compensation Tribunal in 2005.

The panel will also include representatives from the Australian Fair Work Ombudsman, NSW Industrial Relations and the Pro Bono Partner from Clayton Utz, David Hillard, speaking about the NSW victim’s compensation scheme.

One of the things we’re trying to do is to establish a legal network of lawyers across Australia who can work with us in meeting the legal needs of trafficked people. For example, we already have a partnership with firms like Clayton Utz, and we’re working with an organisation called PILCH (The Public Interest Law Clearing House), which facilitates pro bono legal services to Victorians.

In our experience, a person who’s been trafficked has a whole bundle of legal needs – immigration, family, victim compensation, maybe housing. What we’re trying to do by developing the network, is to locate people and organisations across Australia who are willing to work pro bono on behalf of clients.

By including the private sector and developing our partnerships with that sector, I think our response to trafficking will be enriched.

Fiona McLeod
In 2005 I ran a victim of crime compensation claim in NSW for a young woman named Ning, who was trafficked out here as a child. After 10 days and 100 clients, whom she was forced to service in an illegal brothel in Sydney, she was picked up by immigration and carted home to Thailand without any support or recognition that she’d been violated or that it had occurred in Australia.

It was the first victim of crime claim that had been undertaken anywhere in the world for a victim of trafficking.

In her case it was easy to identify a criminal offence because she’d been brought here as a child, so there were multiple counts of statutory rape which are the highest level of seriousness of a criminal offense in NSW under the victims of crime legislation. She’d also given evidence against the traffickers in Thailand, so the chain of proof was relatively straightforward.

People brought into brothels for sex trafficking may be identified once immigration and federal police get involved. But we have no real idea how many people are here in forced labour conditions and no idea how many people are here under forced marriage conditions, basically kept in a condition of slavery within an arranged marriage.

The Anti-Slavery Project team have been leaders in this field for many years. Not just in advocating for better conditions and the rights of the victims of trafficking, but also providing direct legal services and a broad range of other support services to these people.

I’ve been asked to present a paper at their upcoming seminar – Remedies for trafficked and enslaved peoples – to continue a conversation about avenues for compensation for victims of trafficking.

The avenues that are available include not only victims of crime compensation, but civil claims for wrongful imprisonment, slavery, trespassing and assault against the person.

Federally, we don’t have a compensation scheme. The Federal Government may say it’s a matter for the states and territories to regulate because they have the primary role in crime prevention and prosecution.

However, it’s my view that a national scheme is needed, not only because there’s inconsistency in the different state and territory compensation schemes but also because these are crimes under the Commonwealth Criminal Code. 

Another thing we should be doing is encouraging prosecutors to tell victims about their right to claim a compensation order at the end of the criminal trial. The judge has already heard the case so they’ll know, with a small amount of further evidence, what the impact on that victim will be and can make appropriate compensation orders. This saves the victims going through a separate trial process, but it depends upon their willingness to make complaints in the first place.

Often these women, and they are mostly women, are here without resources and don’t understand they are victims and have access to support through our criminal justice system.

It’s a great privilege to represent them. I look at my two teenage daughters and I think ‘My kids are okay, what about the community? What about the rest of the world?’

I think it’s natural, once you know you’re kids are safe, to look at other people’s daughters and see how you can help make them safe too. As for the trafficking of people, it’s an abhorrence. We can’t tolerate these things as a society.


Business and Law

I don't think hardworking taxpayers should be punished by having to pay for someone elses crimes. Rather, the penalty for such crimes should be the death penalty. Use of taxpayers money for compensation should only ever be entertained where taxpayers, through negligent actions of their Government are responsible for the damage. In these tragic cases, it is organised criminals that are responsible. It is impossible for Governments to do anything other than create laws and enforce them as best they can, however they are not liable for every criminal act. Taxpayers money is needed for Law Enforcement, Courts, Legal Aid etc... Every dollar paid in compensation is then unavailable for the prevention and detection of crime, which results in more crime and less detection.