ORPHANAGE TRAFFICKING, MODERN SLAVERY AND THE AUSTRALIAN RESPONSE

Kate Van Doore, Rebecca Nhep

Abstract


Orphanage trafficking is fast becoming a highly profiled form of child trafficking involving the transfer and recruitment of children into orphanages or institutional care for the purpose of exploitation and profit. In 2018, the Australian government stated that they were leading the world in recognising orphanage trafficking as a form of modern slavery under the newly enacted Modern Slavery Act 2018 (Cth). This article describes how orphanage trafficking occurs as a process of child trafficking. It then clarifies that whilst orphanage trafficking is a form of modern slavery, orphanage tourism and child institutionalisation are not. The article then considers Australia’s recognition of orphanage trafficking as modern slavery, and the limits of that recognition. To maintain the growing momentum on curbing orphanage trafficking, the article argues that Australia needs to ensure that ensure that orphanage trafficking is criminalised as an offence. The article makes two alternative recommendations to achieve this. The first is to amend the elements of the current legislation on trafficking in Australia to ensure that orphanage trafficking is encapsulated. The second is for the Australian government to explicitly criminalise the offence of orphanage trafficking. 


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References


REFERENCE LIST

A Articles/Books/Reports

Among, Hope, ‘Study on Legal Guardianship and Adoption Practices in Uganda’ (Report, Ministry of Gender, Labour and Social Development and UNICEF, 2015)

Bales, Kevin, Bodean Hedwards and Bernard Silverman, ‘Modern Slavery Research: the UK Picture’, (Report, Office of the Independent Anti-Slavery Commissioner and the University of Nottingham’s Rights Lab, 2018)

Better Volunteering Better Care, ‘Collected Viewpoints on International Volunteering in Residential Care Centres: An Overview’ (Report, 2014)

Bhoola, Urmila, 'Report of the Special Rapporteur on Contemporary Forms of Slavery Including its Causes and Consequences: Current and Emerging Forms of Slavery ' (2019) UN Doc A/HRC/42/44

Carpenter, Kathie, ‘Using Orphanage Spaces to Combat Envy and Stigma’ (2014) 24(1) Children, Youth and Environments 124

Chaitkin, Samantha, Nigel Cantwell, Chrissie Gale, Ian Milligan, Catherine Flagothier, Claire O’Kane, Graham Connelly, ‘Towards the Right Care for Children: Orientations for Reforming Alternative Care Systems – Africa, Asia, Latin America’, (Report, European Union, 2017)

Cheney, Kristen and Karen Smith Rotabi, 'Addicted to Orphans: How the Global Orphan Industrial Complex Jeopardizes Local Child Protection Systems' in Kathrin Hörschelmann Christopher Harker, Tracey Skelton (ed), Geographies of Children and Young People (Springer, 2015) vol 11

Csáky, Corinna, ‘Keeping children out of harmful institutions: Why we should be investing in family-based care’ (Report, 2009)

Feit, Martin Punaks and Katie, ‘The Paradox of Orphanage Volunteering: Combating child trafficking through ethical voluntourism’, (Report, Next Generation Nepal, 2014)

Frimpong-Manso, Kwabena, 'Residential Care For Children in Ghana: Strengths and Challenges' (2016) Global Perspectives 172

Guiney, Tess, '“Hug-an-orphan Vacations”: “Love” and Emotion in Orphanage Tourism' (2018) 184(2) The Geographical Journal 125

Guiney, Tess and Mary Mostafanezhad, 'The political economy of orphanage tourism in Cambodia' (2014) 15(2) Tourist Studies 132

Commonwealth of Australia, ‘Hidden in Plain Sight: An Inquiry into Establishing a Modern Slavery Act in Australia’ (Report, Joint Standing Committee on Foreign Affairs Defence and Trade, 2017)

Lyneham, Samantha and Lachlan Facchini, 'Benevolent harm: Orphanages, voluntourism and child sexual exploitation in South-East Asia' (2019)(574) Trends and Issues in Crime and Criminal Justice 1

Martin, Florence and Tata Sudrajat, ‘Someone that Matters: The quality of care in childcare institutions in Indonesia’ (Report, Save the Children, 2007)

Mulheir, Georgette and Mara Cavanagh, ‘Orphanage Enterpreneurs: The Trafficking of Haiti's Invisible Children’, (Report, Lumos, 2016)

Nowak, Manfred, 'Report of the Independent Expert leading the United Nations Global Study on Children Deprived of Liberty' (2019) UN Doc A/74/136

Passas, Nikos et al, ‘Legislative Guides for the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto’, (Legislative Guide, United Nations Office on Drugs and Crime, 2004)

Phelan, Kelly Virginia, 'Elephants, orphans and HIV/AIDS: Examining the Voluntourist Experience in Botswana' (2015) 7(2) Worldwide Hospitality and Tourism Themes 127

Punaks, Martin and Katie Feit, 'Orphanage voluntourism in Nepal and its links to the displacement and unnecessary institutionalisation of children' (2014) 1(2) Institutionalised Children Explorations and Beyond 179

Reas, P Jane, '“So, Child Protection, I'll Make a Quick Point of It Now”: Broadening the Notion of Child Abuse in Volunteering Vacations in Siem Reap, Cambodia' (2015) 18(4) Tourism Review International 295

Red Latinoamericano de Acogimiento Familiar, ‘Children and Adolescents Without Parental Care in Latin America: Contexts, Causes and Consequences of Being Deprived of the Right to Family and Community Life’, (Report, RELAF & SOS Children's Villages International, 2010)

Richter, Linda M and Amy Norman, 'AIDS orphan tourism: A threat to young children in residential care' (2010) 5(3) Vulnerable Children and Youth Studies 217

UNICEF, ‘With the Best intentions: A study of attitudes towards residential care in Cambodia’, (Report, UNICEF & Ministry of Social Affairs, Veterans and Youth Rehabilitation, Cambodia, 2011)

United Nations, Guidelines for the Alternative Care of Children, (18 December 2009, adopted 24 February 2010) UN Doc A/RES/64/142

United States Department of State, ‘Trafficking in Persons Report 2018’ (Report, 2018)

van Doore, Kathryn E, 'Paper Orphans: Exploring Child Trafficking for the Purpose of Orphanages' (2016) 24(2) International Journal of Children's Rights 378

van Doore, Kathryn E, Laura Healy and Megan Jones, ‘Mapping Australia’s Support for the Institutionalisation of Children Overseas’ (Report, ReThink Orphanages, 2016)

Vernaelde, Jamie, ‘Funding Haitian Orphanages at the Cost of Children’s Rights’ (Report, Lumos, 2017)

B Legislation

Criminal Code 1995 (Cth)

Modern Slavery Act 2018 (Cth)

Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth)

C Treaties

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003)

D Other

ACC international, Submission 140 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to establish a Modern Slavery Act in Australia, 2017

ACFID Child Rights Community of Practice, Submission 55 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to establish a Modern Slavery Act in Australia, 2017

‘Australia Officially Recognises Orphanage Tourism as Modern Slavery’, Travel Weekly (online, 30 November 2018)

Cambodian Children’s Trust, Submission 25 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to establish a Modern Slavery Act in Australia, 2017

Commonwealth of Australia, ‘Commonwealth Modern Slavery Act 2018 Guidance for Reporting Entities’ (Legislative Guidance, 2019)

Forget Me Not Nepal, The Himalayan Innovative Society, Adara Development, Submission 155 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to establish a Modern Slavery Act in Australia, 2017

Jones, Ruby, ‘Campaign Against Orphanage Tourism Builds, as Second Global Agency Quits Business’, ABC News (online, 8 November 2017)

Knaus, Christopher, ‘The Race to Rescue Cambodian Children from Orphanages Exploiting them for Profit’, The Guardian (online, 19 August 2017)

Explanatory Memorandum, Modern Slavery Bill 2018

Nave Andrea and Forget Me Not, Submission 114 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to establish a Modern Slavery Act in Australia, 2017

ReThink Orphanages, Submission 23 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to establish a Modern Slavery Act in Australia, 2017

Reynolds, Assistant Minister for Home Affairs Senator the Hon Linda, 'Modern Slavery Bill passes the Parliament' (Media Release, 30 November 2018)

Save the Children, Submission 97 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to establish a Modern Slavery Act in Australia, 2017

van Doore, Kathryn E, Submission 52 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to establish a Modern Slavery Act in Australia, 2017