Domestic workers in diplomatic bind

By Heather Moore
Flags of diplomatic missions in Parkes, Canberra.

Last month, Fairfax Media reported that foreign diplomats in Canberra were being investigated for alleged involvement in the black market trade of alcohol and tobacco. In one article, an Australian Border Force (ABF) spokesperson boldly stated that diplomats found to be abusing their special entitlement to import large amounts of duty-free alcohol and cigarettes would be sanctioned.

I found this language surprising, given the notorious difficulties in holding highly immunised diplomatic officials accountable for even traffic offences. (A subsequent Fairfax article reported that diplomats in Canberra owe more than $500,000 in speeding fines.) As a resident of Canberra and a member of the global anti-slavery movement, my thoughts immediately went to evidence of gross and largely unaddressed exploitation of migrant domestic workers employed by diplomatic and consular officials in Australia. My own employer – The Salvation Army – has provided assistance to nearly 25 workers fleeing horrific abuse in some households and based on international reports, we believe the problem is likely to be worse than current statistics suggest.

Abuse, labour exploitation and even modern slavery is occurring in the households of the diplomatic corps within Australia.

Like diplomats’ special duty-free entitlements, the terms for employing “Private Domestic Workers” are delineated in the Protocol Guidelines issued by the Department of Foreign Affairs and Trade (DFAT). The Protocol Guidelines are essentially the orientation manual for foreign diplomats and consular officials in Australia. They are not laws themselves, but they refer to Australian laws and detail entitlements and obligations officials should endeavour to respect and uphold. Reading the Fairfax coverage, I wondered how the ABF will practically sanction guilty diplomats and why money owed to the Australian government is any more important than money owed to individuals working for foreign officials.

Not all diplomats exploit their workers and there are many outstanding public servants who are trying to ameliorate the situation. But the unfortunate reality remains that abuse, labour exploitation and even modern slavery is occurring in the households of the diplomatic corps within Australia. And the Australian government is not doing enough to protect workers and uphold their basic human rights.

The government took some action last year when they overhauled the screening process for Temporary Work (International Relations) visas (subclass 403) for domestic workers, under the auspices of the National Roundtable on Trafficking and Slavery. While this is an important step, it does nothing for those workers who slip through the screening process or who are already in Australia.

The ABF investigation of privileges rorting suggests where there’s a will, there’s a way. It illustrates that when the government is owed money, it is prepared to launch an investigation and publicly threaten sanctions. However, when domestic workers have been exploited in at least four (publicly reported) cases, we have seen a total absence of useful action.

These media reports reveal the complicated web workers must navigate. DFAT refers employment disputes to the Fair Work Ombudsman (FWO); the FWO then declines to investigate on the basis of immunity. Workers whose employer sponsorship is discontinued have only 28 days before being legally required to leave Australia, making it practically impossible to bring a private civil action.

The result is a serious break down in access to justice. All too often, domestic workers employed by diplomats are told by the FWO, police and others that nothing can be done because of diplomatic immunity. However, this is not entirely accurate. Not all diplomats enjoy the same degree of immunity and there are a range of alternatives available to hold them accountable to obligations set forth in the Protocol Guidelines.

Article 31 of the Vienna Convention on Diplomatic Relations provides immunity for diplomats in criminal, civil and administrative jurisdictions, but not for “commercial activity exercised by the diplomatic agent… outside his official functions.” Article 32 allows the sending State to waive immunity, thus exposing their staff to possible prosecution and Article 9 empowers the Australian Government to declare a diplomat “persona non grata”, meaning the diplomat is no longer welcome in Australia. In other cases, receiving States can refuse applications for additional workers until a matters are resolved.

Beyond wage and hour disputes lingers the spectre of more serious violations such as human trafficking. Despite several cases where trafficking is may have occurred (like those referred to above), we cannot know for certain what, if any actions were taken to investigate claims and hold the offenders to account.

The US has made promising progress, having amended its federal anti-trafficking laws to enable trafficking victims of diplomats and employees of international organisations to pursue civil lawsuits without fear of deportation. The US based Human Trafficking Pro Bono Legal Centre and others have brought 25 civil suits against diplomats. While only a small proportion resulted in judgments for the plaintiffs, the pressure of public exposure and a possible judgment led several to settle out of court.

In Switzerland, the Protocols section offers mediation services for employment disputes and refers workers to NGOs for support when more serious allegations are made. In Ireland, workers must report into DFAT for welfare checks and diplomats are now required to permit labour inspections and allow workers to attend workshops on their rights.

The 403 subclass visa is essentially an unmonitored, employer-sponsored visa, and because of the limitations on accessing diplomats’ private residences – a problem that exists for any domestic worker working within a private home – they are among the most marginalised and exploited workers in the world today.  At minimum, our Government could take real action to reduce this exceptional isolation through mandatory welfare checks and facilitating access to civil justice.

For now, the hot pursuit of missing tax dollars, rather than workers’ wages, is another example of the undervaluation of domestic work and lack of meaningful attempts to address systemic exploitation of migrant workers in the Australian workplace more generally. The advantage other migrants have, however, is the political will to strengthen and apply available penalties. Those employed by diplomatic officials have been left out of policies aimed at cracking down on workplace exploitation. Until this changes, justice is just out of reach.