"Bali Process" - Building Regional Cooperation to Combat People Smuggling and Trafficking in Persons

I should like to thank Dr Felicity Rawlings-Sanaei and the Institute for the Study of Global Movements for inviting me here today--a year after the Minister for Foreign Affairs, Mr Downer, opened this institute-- to speak on Australia's work in building regional cooperation to combat people smuggling and trafficking.

Introduction: the Bali process and the role of the Ambassador for People Smuggling
Issues

Following large numbers of illegal boat arrivals run by people smuggling operations from Indonesia to Australia in 2000 and 2001 (6640 people arriving on 83 boats), the Australian Foreign Minister, Mr Downer, and his Indonesian counterpart, Dr Wirajuda decided to boost bilateral and regional cooperative efforts to deal with people smuggling and trafficking by co-hosting a Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime in Bali in February 2002.

The Australian Government created the position of Ambassador for People Smuggling Issues in April 2002 to take forward the outcomes of the Ministerial Conference and promote coherent, effective international approaches to combating people smuggling and trafficking, particularly in the Asia Pacific region. I was appointed to the position in July 2003 to implement the practical measures agreed by Ministers at a second Bali Ministerial Conference in April 2003.

My role as Ambassador is one of high level advocacy in the region and effective whole-of-government coordination in Canberra to promote practical, cooperative activities in what is called the Bali process (after the venue of the Ministerial meetings) to combat people smuggling and trafficking. The process would not be successful without a highly collaborative effort among key Commonwealth departments and agencies, notably the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA); the Attorney-General's Department (AGD); the Australian Federal Police (AFP); and Australian Agency for International Development (AusAID).

The Bali process derives its impetus from strong political support in the region. Through capacity-building activities and practical workshops, it has created an environment in which regional foreign, justice, law enforcement and immigration ministries are increasingly cooperative--and effective--in addressing people smuggling and trafficking issues.

Since the first Ministerial meeting significant progress has been made in deterring unauthorised boat arrivals, extraditing and prosecuting smugglers, and expediting the claims of illegal migrants. Since December 2001 only three groups of illegal immigrants comprising less than 100 persons, have arrived on Australian territory by boat: a dramatic decline in unauthorised boat arrivals.

A range of factors have contributed to this outcome. These include: improvements in the world's longest standing refugee caseloads - Afghans and Iraqis; enhanced regional cooperation to combat people smuggling, including through the Bali process; as well as strong Australian domestic legislative and policy responses.

A key additional factor has been, and remains, the highly productive regional partnership between Australia and Indonesia. This has greatly assisted the deterrence, detection, apprehension and prosecution of people smugglers. Australian and Indonesian foreign ministry, police and immigration officials work closely together to stem the flow of irregular migrants through the archipelago, to deal firmly with the smugglers and to ensure that any asylum claims of those smuggled are assessed in accordance with the Refugees Convention.

A global problem

People smuggling and trafficking in persons are serious global problems:

• they challenge national sovereignty in controlling borders and potentially threaten national security. An open back door to people smugglers is an open back door to anyone;
• they undermine the integrity of the international refugee protection system, with the potential to erode public support for the legal migration programs that have so benefited and enriched Australia and many other countries;
• they can result in human rights abuses and humanitarian disasters where smugglers and traffickers send people across dangerous waters in unsafe and overloaded boats and mislead women and children about their future employment and lives when they reach their destination.

People smuggling occurs when people pay smugglers to arrange for them to cross illegally into a third country. Usually the transaction ends once this is achieved. Trafficking in persons, on the other hand, often involves coercion and abduction in addition to fraudulent promises by the traffickers of jobs and a better life. The transaction often does not end at the point of destination, as traffickers may continue to exploit their victims through sexual exploitation, forced labour, and other forms of slavery.

We have no accurate figures on the number of people smuggled or trafficked
annually. In June 2004, the US Government estimated that 600,000 to
800,000 people are trafficked across international borders each year
. In the same report, the United States also estimated that global intra-country
trafficking in persons could range from two to four million.

But we do know that people smuggling and trafficking operations are becoming increasingly sophisticated and lucrative. According to the International Organization for Migration (IOM), people smugglers and traffickers earn approximately USD10 billion annually, making these repugnant activities core business for transnational criminal networks alongside narcotics, document fraud, money laundering and arms smuggling.

Individual governments cannot deal effectively with these issues alone. These are transnational problems requiring transnational solutions - through international treaty level commitments and effective international cooperation.

Australian responses

So what is Australia doing to address these problems?

International treaty commitments

The Government has a strong commitment to implementing the provisions of relevant multilateral treaties. A key international commitment for Australia is the 1951Refugees Convention and its 1967 Protocol.

In addition, the Australian Government recently ratified the United Nations Convention Against Transnational Organised Crime and its Protocol Against the Smuggling of Migrants by Land, Sea and Air, both of which entered into force for Australia on 26 June 2004. Australia also intends to ratify the Crime Convention's other Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, once implementing legislation has been passed.

Domestic laws and policies

The Australian Government has instituted a broad range of domestic laws and policies to combat people smuggling and trafficking and provide appropriate assistance to smuggled and trafficked people.

As a destination country, targeted by people smugglers and, to a lesser extent, traffickers, Australia has put in place whole-of-government policies, legislation and programs: to deter unauthorised boat arrivals; to extradite and/or prosecute the smugglers and traffickers; to provide appropriate assistance to the victims of trafficking; to ensure asylum seekers have their claims assessed in accordance with the Refugees Convention; and to provide effective and safe return arrangements for those found not to be in need of protection.

Recent measures include:

• increased penalties for people smuggling under the Migration Act from two years imprisonment to twenty with a fine of up to AUD220,000;
• reduced incentives for people to seek unlawful means to reach Australia as a way of migrating to their country of choice by the institution of temporary protection visas (TPVs) for unauthorised arrivals found to be refugees as well as the introduction of offshore processing centres, including through the Pacific Strategy;
• improved Coastwatch, Customs and Defence Force capabilities to detect, pursue, intercept and search boats carrying unauthorised arrivals;
• the excision of Ashmore, Cartier, Christmas and Cocos Islands from Australia's migration zone;
• enactment of the Border Protection Act 2001 to enable the boarding and searching of vessels in international waters that are suspected of being involved in people smuggling;
• introduction of penalties of up to twenty years imprisonment for people trafficking;
• a AUD2O million package of anti-trafficking measures, announced in October 2003, to help target, arrest and prosecute people traffickers in Australia and the region and to improve support for the victims of trafficking; and
• a fifty per cent increase in Australia's refugee quota from 4000 to 6000 places in 2004-05 (and from 12,000 to 13,000 places for Australia's total humanitarian program) made possible because of the success of tough border control measures.

Regional approaches

Another key element of the Government's approach to combating people smuggling and trafficking has been to build effective regional cooperation. We have done so through the Bali process--which I will further discuss in a minute--but also through a wide range of bilateral, regional and sub-regional programs.

The Government has put significant resources into regional efforts to deal effectively and humanely with smuggled persons; to ensure that asylum claims are properly heard without helping the people smuggling trade.

The regional cooperation arrangement (RCA) with Indonesia, developed in 2000 and funded by Australia, provides for the care of illegal migrants by the International Organization for Migration (IOM) in Indonesia and enables those who signal a possible protection need to have access to a refugee determination process through the UN High Commissioner for Refugees (UNHCR). From its inception until May 2004, 3930 irregular migrants have been processed through the RCA. The majority of these have been resettled through UNHCR in third countries including Australia. Others have returned home voluntarily with IOM assistance. Some remain in Indonesia under IOM care.

The Government is contributing substantial funding through the aid program to a range of regional projects relating to trafficking in persons--notably in Thailand, Laos, Cambodia and Vietnam. These include bilateral programs and projects run by the IOM and the UN Development Program (UNDP), including on the return and reintegration of trafficked and other vulnerable women and children. The Government is also contributing to a new three-year project to combat child sex tourism.

In order to prosecute successfully the smugglers and traffickers--as with all kinds of transnational crime--international cooperation is very important and establishing dual criminality is a critical factor in securing this international cooperation through extradition and mutual assistance arrangements. So a key focus of the Government's approach to combating people smuggling and trafficking has been to work with regional countries, both bilaterally and through the Bali process, to help them develop legislation to criminalise people smuggling and trafficking as well as to negotiate bilateral extradition treaties and mutual assistance arrangements. And the Attorney-General's Department, with DFAT, has done a great deal of work in this area. As a result, over the past year the Government has successfully extradited three people smugglers - two from Thailand and one from Sweden to face charges in Australia. Australia also assisted Egyptian officials to charge another people smuggler in an Egyptian court on charges related to the SIEV X where 353 people perished when it sank in October 2001.

In addition, DIMIA has helped build capacity in regional countries to deal with illegal immigration in areas such as border management, visa systems and the verification of identity and nationality. It has also worked bilaterally with regional countries to develop arrangements for a safe return with dignity for those with no rights to remain in Australia.

Bali process on people smuggling, trafficking in persons and related transnational
crime

The Bali process has greatly assisted bilateral and other regional efforts to combat people smuggling and trafficking. The Bali process is a regional process. But the region stretches a long way--from Turkey in the West and China in the North to Kiribati in the East and New Zealand in the South. Participants include source, transit and destination countries (some, such as Thailand, are all three) as well as key international organisations, notably the UNHCR and IOM. Unsurprisingly, given such a diverse group, the interests and levels of engagement of countries varies. Some involve themselves in all aspects of the process, others pick those areas and activities of most relevance to them.

At the two Bali Ministerial Conferences, Ministers agreed to the following specific objectives for the Bali process:

• the development of more effective information and intelligence sharing;
• improved cooperation among regional law enforcement agencies to deter and combat people smuggling and trafficking networks;
• enhanced cooperation on border and visa systems to detect and prevent illegal movements;
• increased public awareness in order to discourage these activities and warn those susceptible;
• enhanced effectiveness of return as a strategy to deter people smuggling and trafficking through conclusion of appropriate arrangements;
• cooperation in verifying the identity and nationality of illegal migrants and trafficking victims;
• the enactment of national legislation to criminalise people smuggling and trafficking in persons;
• provision of appropriate protection and assistance to the victims of trafficking, particularly women and children;
• enhanced focus on tackling the root causes of illegal migration, including by increasing opportunities for legal migration between states; and
• assisting countries to adopt best practices in asylum management, in accordance with the principles of the Refugees Convention.

To take forward these objectives, Ministers agreed that senior officials develop practical plans of action. New Zealand has coordinated activities to increase regional and international cooperation and Thailand has coordinated work on legislation, law enforcement and document fraud issues. Overall direction and coordination has been provided through an officials' level steering group comprising Indonesia and Australia as the two co-chairs, New Zealand and Thailand as the coordinators and the UNHCR and IOM as partner agencies. The IOM also administers the process.

Key areas of activity since the first Bali meeting include:

• the establishment by IOM of a Bali Process website (www.baliprocess.net). Used initially to provide basic information the website is now being developed as a capacity-building tool, including model agreements and operational information;

• two legislation workshops in Malaysia for regional immigration, police and justice officials. These resulted in the development by Australia (AGD) and China of model legislation to criminalise people smuggling and trafficking (to enable police investigations, prosecutions and extraditions) which has subsequently been used by many regional countries in the development of their own legislation;

• a law enforcement and travel document fraud workshop in China, including training by the Bangkok-based Immigration Control Experts (ICE) team, represented by Australia and the United States;

• two workshops run primarily by UNHCR in Thailand and Fiji respectively on best practice procedures for determining the status of asylum seekers and on balancing a country's right to determine who enters its territory with the right of victims of persecution or violence to seek and receive protection in other countries;

• a people trafficking/public awareness workshop in the Republic of Korea run jointly by the Korean Justice and Gender Equality ministries;

• a workshop developed by DIMIA on identity managementand document fraud in Thailand, resulting in the development of best practice guidelines for the initial establishment of identity, mechanisms for coordinating regional training, and support for a regional approach to information sharing on documentation, lost and stolen passports and persons of concern;

• a bilateral returns workshop in Perth, developed by DIMIA and run jointly with the regional Budapest process, resulting in agreement to contribute draft paragraphs for governments to draw on in developing bilateral return agreements, and the development of a checklist of issues to be addressed in the return of illegal migrants; and

• a workshop among law enforcement agencies, developed by AFP, focusing on cooperation in identifying and targeting key people smugglers and traffickers in the region.

Of these activities, perhaps the most successful has been the development of legislation to criminalise people smuggling and trafficking. As of June this year, 18 regional countries had made use of the model legislation developed by Australia and China to draft their own domestic laws criminalising people smuggling and trafficking. 19 countries have legislation in place with many more countries considering legislative changes.

A key disincentive to people smuggling is the return of those smuggled persons found not to be refugees, and the outcomes of the Perth workshop should assist the capacity of regional countries to deal with this issue. The documentation developed at the workshop is being placed on the Bali process website as a capacity building tool.

Work on refugee issues has not always been easy in the Bali process as less than half its members are parties to the Refugees Convention. But UNHCR has been a key player in the process and participants have found their workshops very useful.

Future directions

As mandated by Ministers at the second Bali conference, senior officials reviewed progress in taking forward Ministers' objectives at a Senior Officials' Meeting in Brisbane in June that I co-chaired with my Indonesian counterpart. 47 countries (comprising officials from regional justice, immigration, foreign and law enforcement agencies) and nine international organisations attended the meeting.

Participants expressed strong appreciation for the way the Bali process has delivered direct practical benefits to regional operational agencies. There was also a strong sense that as long as smuggling and trafficking persist, regional countries wanted to continue to work together to find regional solutions.

Participants were unanimous in their view that the Bali process should continue. They noted that the process had moved on from discussing political principles to implementing practical measures. They agreed that some of the objectives set by Ministers had been achieved --at least in so far as they could be taken forward in a multilateral process of this kind. They also noted work on related issues underway bilaterally and in other regional forums and agreed that the Bali process should not duplicate that. They further agreed that, despite progress, significant challenges remained, particularly in dealing with trafficking in persons issues. They therefore recommended a streamlined future program of continuing and newactivities in areas the Bali process could best add value, notably:

• regional law enforcement cooperation, including on border controls;
• regional training for law enforcement officers in dealing with the victims of trafficking and in combating trafficking;
• public awareness of people smuggling and trafficking;
• child sex tourism;
• mutual assistance and extradition;
• development of policy and/or legislation on lost and stolen passports; and
• targeting people smugglers and traffickers.

New Zealand and Thailand have agreed to continue to coordinate activities over the coming year, with New Zealand focusing more on legislative and policy issues and Thailand more on law enforcement and border controls. Both Mr Downer and his Indonesian counterpart, Dr Wirajuda, have agreed that a further Ministerial Conference or Senior Officials' Meeting is not needed at this stage although they will keep this under review.

Conclusion

So what has been the overall impact of and added value of the Bali process in combating people smuggling and trafficking?

Many Bali process countries have commented to us that in just over two years the Bali process has created an environment in which regional countries are increasingly comfortable and cooperative (including bilaterally and sub-regionally) in preventing and intercepting people smuggling (and to a lesser extent trafficking) activities, prosecuting those responsible and strengthening border management. It has also promoted far better internal coordination among foreign, immigration, justice and law enforcement agencies in individual countries.

As Ambassador for People Smuggling Issues, my objective has been to work collaboratively with my Australian colleagues on a whole-of-government basis and with regional counterparts to use the Bali process to create an environment in which operational cooperation among regional agencies on people smuggling and trafficking issues becomes self-sustaining. And, as the outcomes of the Senior Officials' Meeting last month showed, this is increasingly the case.

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US State Department, Trafficking in Persons Report 2004, June 2004.

Convention Relating to the Status of Refugees (1951) and Protocol Relating to the Status of Refugees (1967). The 1951 Refugees Convention originally had temporal and geographical limitations but these restrictions were lifted by the 1967 Protocol. The Refugees Convention sets out the rights of refugees, establishing a minimum standard of treatment of refugees. One of the most important of these is the right of 'non-refoulement', that is, that a refugee should not be expelled or returned from its territory to a country where he or she could face persecution on Convention grounds.

In the last five years, there have been over 450 convictions for the full range of people smuggling offences in Australia.

TPVs are granted to asylum seekers found to be refugees but who have entered the Australian mainland illegally or on fraudulent documents, provided they meet health and character requirements. A TPV gives them residence for three years. They can apply for a further protection visa before the expiry of this visa.

The purpose is to remove the automatic right of a person arriving without authority to receive a permanent visa in the first instance; thus discouraging secondary movement. Or put another way, to encourage people to seek asylum in the first country of asylum.

The actual offence is for [extraterritorial] people smuggling aggravated by exploitation.