The parameters of illegal labour In this initial phase of the research, the breadth of what could be labeled ‘illegal’ labour ranged from

working within the cash economy to working in breach of or without work rights. Regardless of citizenship or migration status, all those working in the cash economy may, potentially, be identified as being involved in illegal labour activity- due to their status, for example, as welfare beneficiaries who are working without declaring their income (such as recipients of unemployment benefits or disability pensions) or due to their migration status and/or visa restrictions with regards to work. Discussing illegal labour with participants, the interpretation was broad and references were made to the fact that this working within the cash economy to working in breach of or without work rights. Regardless of citizenship or migration status, all those working in the cash economy may, potentially, be identified as being involved in illegal labour activity- due to their status, for example, as welfare beneficiaries who are working without declaring their income (such as recipients of unemployment benefits or disability pensions) or due to their migration status and/or visa restrictions with regards to work. Discussing illegal labour with participants, the interpretation was broad and references were made to the fact that this

…there’s an awful lot of scams going on that we’re aware of. Now one of the scams that I’ve seen in times gone by and this largely involved the hire of Centrelink payment recipients and also temporary visitors and possibly illegals who don’t have work permits, people who have overstayed, we’ve seen unscrupulous providers hire these people. Peter, Australian Government Agency.

However citizens and non-citizens working in the cash economy or working ‘illegally’ are not in a comparable position and are not seen as equally in breach of the law or as ‘illegal’. Across Australia multiple government agencies are working collaboratively and conducting joint raids on work sites to identify any illegal workers, however as the participants in this research explained and this DIAC statement indicates, this is targeted at non-citizens:

“Three government departments – Immigration and Citizenship, Centrelink and the Australian Taxation Office – work together in areas of the cash economy to locate non-citizens who are employed illegally, or claiming welfare payments and benefits to which they are not entitled” (DIAC, 2009).

The statement from this participant typified the stories of raids and the general awareness of the omnipresent threat of ‘illegals’ being caught:

And there’s been lots of cases of Indian labour being picked up, immigration is out here all the time, they’ll be here all the time, they just turn up out of the blue and… arrest 10, 12 people in one go, off to Villawood. Australian government agency employee, regional NSW.

For non-citizens working without work rights the stakes are much higher, largely because they have the additional threat of deportation if found and there are expanded systems of regulation and surveillance (such as the immigration ‘dob-in line’) in operation. What is emerging here is another instance of what McDowell & Wonders (in press) have described as “the interrelated technologies of control, surveillance and enforcement”. Of importance here is that strategies of immigration compliance and visa enforcement may be increase the considerable risks and vulnerabilities associated with working outside the parameters of legality- where criminality and enforcement are prioritised, the focus on offenders prevails.

Conditions of vulnerability Elsewhere it has been established that many women trafficked into the sex industry are often also potential offenders due to their status as non citizens or due to a range of breaches of immigration processes in the country of destination or their country of origin (see Segrave et al, 2009; Goodey, 2003). This has been identified as a key impediment to identifying potential victims in Australia (Segrave et al 2009). These same issues manifest in this research in relation to exploitative labour conditions.

It should be noted, however, that within the broader operation of the cash economy - all undocumented labourers have the potential to be exploited and all have (or see themselves as having) limited recourse to government agencies or police. It is clear that one does not need to be a non-citizen nor an illegal noncitizen to be exploited. However, there is a clear hierarchy of vulnerability operating here as the stakes for non-citizens are much higher. For non-citizens the consequences on top of non-remuneration are immediate detention and deportation. The consequence of this, as many participants connected to or involved in unregulated labour, was silence:

And particularly for some of the traditional people who might be out here on student visas for arguments sake, you know, studying, is that they’re not going to speak up, because then they’ll be prosecuted. If they’ve been working for a contractor and they’re getting underdone or not paid correctly or not paid at all or you know, that sort of thing, they’ve got no-one to really go to. Matthew, Australian government agency

As a consequence of people’s desire to earn money, the fear of being caught and other related concerns, the reporting of experiences of exploitation or abuse is almost non-existent- echoing findings in relation to sex trafficking (see Segrave et al, 2009). While participants consistently referred to the ‘common knowledge’ that exploitative labour practices occur they also acknowledged challenges to bring this to light. The stories of exploitation that were articulated during the interviews highlighted that in order to understand what is happening we must also attend to the context in which it is happening.

Connecting regulation and exploitation The practices revealed in this research shared many similarities to the exploitative practices identified in relation to sex trafficking (see Segrave et al, 2009) and to those noted in government inquiries into exploitative practices under the 457 regime (Deegan 2008, Joint Standing Committee on Migration 2007).

Rather than stories of extreme forms of exploitation, it was stories of people being ‘ripped off’, working for nothing, working in the difficult conditions and of accommodation and transport costs that translated into exorbitant pay deductions that were not optional. For example:

This Turk guy [he organises] a bus to turn up with 40 people on it…. [The farmer] wouldn’t have a clue whether those people got paid or not. And.. they lease houses and put their workers into houses as well and they control that. They control almost everything in their life, the roof over their head, they pay the rent and they take it out of their pay. Australian government agency employee, regional NSW.

One of the contractors… had 15; 15 I think… in a house ….. And of course the Australians were all getting the award [approximately $20]… and then I find that [this contractor] is nominating the price for the Indians; $7, $8.… he’s then using his knowledge of these people and their circumstance and he’s not paying the full wage. Workers advocate, regional NSW

These statements highlight that unregulated practices and the cash economy are one area in which exploitative practices occur but exploitation also occurs and in fact can be increased by practices of regulation. It is clear that there are multiple factors contributing to creating the conditions under which vulnerabilities to exploitation are enhanced, including the impact of regulation designed to ‘protect’ workers and to ensure the legality of the labour force.

Employers and other participants repeatedly identified that there were multiple ‘burdensome’ factors that impact upon labour hire patterns and practices, including workplace regulation (such as Occupational Health and Safety requirements), employee administration (involving tax file numbers, establishing contracts, checking migration status) and the general resistance to union pressures for hourly award rates. These pressures were often identified as antithetical to the demand for reliable workers for short and intense periods of time. Labour hire companies and contractors have arisen to decrease the burden of regulation while meeting the needs of the workplace.

While the interview data suggested that the operation of formal Labour Hire businesses requires close analysis, for the purposes of this paper the focus is on the body of independent labour hire contractors who in regional areas may, for example, approach growers with promises of labour on demand, at a good price, whenever they need it. The stories of these contractors vary considerably- some would operate in a completely unregulated way. For example, one contractor negotiated to have his team harvest a small crop for $50,000- a sum that would be paid to him upon completion of the work for him to then pay the workers under his charge. Once he received the cheque he deposited the cheque and left the country While the interview data suggested that the operation of formal Labour Hire businesses requires close analysis, for the purposes of this paper the focus is on the body of independent labour hire contractors who in regional areas may, for example, approach growers with promises of labour on demand, at a good price, whenever they need it. The stories of these contractors vary considerably- some would operate in a completely unregulated way. For example, one contractor negotiated to have his team harvest a small crop for $50,000- a sum that would be paid to him upon completion of the work for him to then pay the workers under his charge. Once he received the cheque he deposited the cheque and left the country

See in [this town], for arguments sake, there are many individual de facto contractors going around. And they are from various backgrounds, be it Turkish, Indian and Islanders, but they aren’t actually registered labour hire companies. All they are is organizers of labour, that’s what they are. And I know a couple well and some do it not too badly either… they’re not shonky. But they’re still unregulated. Matthew, Australian government organisation

However there were also consistent reports of more organised and more exploitative operations:

This Turk guy [he organises] a bus to turn up with 40 people on it…. [The farmer] wouldn’t have a clue whether those people got paid or not. And not only that, they also, they lease houses and put their workers into houses as well and they control that as well. They control almost everything in their life, the roof over their head, they pay the rent and they take it out of their pay, all that sort of stuff. But they’re reluctant to muck up, I guess, because if they do they might find themselves living somewhere else and haven’t got a roof over their head. Peter, Australian government agency employee.

One of the contractors… had 15; 15 I think… in a house in [xxx], things like this….. The same bloke I heard, a reputable place, [business] he had the contract. And of course the Australians were all getting the award [approximately $20], 'cause they know, the owners know that I’m there watching them. And then I find that [this contractor] is nominating the price for the Indians; $7, $8.… he’s then using his knowledge of these people and their circumstance and he’s not paying the full wage. John, Workers advocate.

What these findings highlight is the complexity of these practices on the ground. Most contractors need to at the very least appear legitimate, yet under the exterior of legitimacy there are a range of unregulated practices happening. Further, there is a demand for these services, as this participant explained:

What you find is that with a lot of the farmers… will use contractors not only because of the immediate supply of labour but the fact that when you hire somebody… the employer is responsible to first of all check if that person has permission to work in Australia so that a fairly… heightened understanding of the visa system [is required], so thereby getting a contractor to then hire that person then pay that contractor a contracting fee that alleviates that requirement. As well as that all the occupational health and safety requirements and so forth that the farmer would be reasonably expected to pay in order to have the person on the property would then be the responsibility of the contractor as well. I would imagine that the farmer or the employer would be well aware that those costs will be passed on to… So a lot of the reason [for the contractors is]… not only the immediate supply of labour… given the seasonal nature of their requirements but also the minimisation of their liability… Peter, Australian Government Agency.

What is clear is that the expansion and cooperation of a range of regulatory frameworks (legislation plus efforts of agencies such as Centrelink, DIAC, the AFP, ATO) are producing complex webs of surveillance that simultaneously create conditions for individuals to work both within and outside of the regulatory What is clear is that the expansion and cooperation of a range of regulatory frameworks (legislation plus efforts of agencies such as Centrelink, DIAC, the AFP, ATO) are producing complex webs of surveillance that simultaneously create conditions for individuals to work both within and outside of the regulatory

Conclusion There are significant consequences that arise from this initial foray into labour exploitation. The first concern, as noted above, is that it is clear that there are people who are working illegally who may also

be victims of exploitation and, depending on the nature of that exploitation, who may also potentially be recognised as victims of trafficking. The irregular or illegal status of these workers, however, serves not only to discourage people from seeking assistance but, critically, further isolates groups of people who for language and cultural reasons may already isolated from the broader geographical community in which they live. Hence placing them in a position of vulnerability of a range of exploitative practices.

A further concern is the concomitant efforts to increase regulatory and policing practices to identify victims of trafficking and unlawful noncitizens working illegally. This translates into a situation where government agencies are pooling resources, intelligence and surveillance efforts to seek out victims and offenders. There is, so far, limited recognition of how these practices impact upon each other. There is no formal recognition that the illegal worker or unlawful noncitizen is also potentially an exploited worker or victim. This research contradicts the presumption that clear distinctions exist.

This raises many issues for further consideration, including the need for the continued interrogation of responses that emphasise regulation and securitisation of national borders and migration regimes (see McDowell & Wonders, in press; Pickering & Weber, 2006). There is a need to interrogate national responses to various forms of exploitation in ways that appear to be (and claim to be) victim focused that This raises many issues for further consideration, including the need for the continued interrogation of responses that emphasise regulation and securitisation of national borders and migration regimes (see McDowell & Wonders, in press; Pickering & Weber, 2006). There is a need to interrogate national responses to various forms of exploitation in ways that appear to be (and claim to be) victim focused that

So too labour, financial and other regulatory systems and policies also operate to create opportunities for some to benefit from the restrictive nature of the migration regime particularly in terms of the limitations on work rights. Within discussions around anti-trafficking efforts there must be recognition that State’s approaches to migration & employment effectively construct groups of non-citizens who can be treated as unequal, and whose inequality can thus be exploited, with impunity (see Anderson & Andrijasevic 2008, 135).

A final issue to consider is how practices of exclusion and control operate more broadly. Weber & Bowling have argued that criminology will be richer if it seeks to understand the social construction of difference and its role in the processes of selection, exclusions and control (Weber & Bowling 2008: 371). It is clear that we need to attend to the ways in which different groups of people are identified as culturally suspect and flawed in their capacity to produce, consume and to move across and within borders. From this perspective, we can begin to identify that the realities of trafficking in all its forms and the realities of illegal labour that are produced through criminal justice and regulatory processes are, at best partial and incomplete stories. The existing frameworks need to be replaced with a new agenda that offers the possibility of more inclusive responses to trans-border movement and labour that does not put the integrity of the border ahead of all other humane concerns.

References Andreas P 2000 Border games: Policing the US-Mexico divide Cornell University Press Ithac. Anderson B & Andrijasevic R 2008 ‘Sex slaves and citizens: the politics of anti-trafficking’ Soundings vol 40

Winter pp 135-145.

[ANAO] Australian National Audit Office 2009 Management of the Australian Government’s Action Plan to Eradicate

of Australia PDF: http://wwwanaogovau/uploads/documents/2008-09_Audit_Report_30pdf (last accessed December 2009).

Deegan B 2008 Visa

Final Report October 2008 PDF: http://wwwimmigovau/skilled/_pdf/457-integrity-reviewpdf (last accessed December 2009).

Subclass

Integrity Review:

[DIAC] Department of Immigration and Citizenship 2009 Fact Sheet 86 – Overstayers and Other Unlawful Non- citizens

Online: http://wwwimmigovau/media/fact-sheets/86overstayers-and-other-unlawful-non- citizenshtm (last accessed December 2009).

Goodey J 2003 ‘Migration crime and victimhood: Responses to sex trafficking in the EU’ Punishment & Society vol 54 pp 415-31.

Minister for Immigration and Citizenship 2009 Media Release: Immigration compliance operation cracks fraud racket

http://wwwministerimmigovau /media/media- releases/2009/ce09027htm (last accessed December 2009).

Joint Standing Committee on Migration 2007 Temporary visas … permanent benefits: Ensuring the effectiveness fairness and integrity of the temporary business visa program August 2007 Canberra: Commonwealth

PDF: http://wwwaphgovau/house/committee/mig/457visas/report/fullreportpdf (last accessed December 2009)

Australia

Lyons L & Ford M 2008 ‘Beyond sex trafficking: the anti-trafficking discourse & its gendered implications for temporary labour migration’ Re-public: reimagining democracy English version December 15 2008 Online: http://wwwre-publicgr/en/?p=465 (last accessed December 2009).

McDowell A & Wonders N in press ‘Keeping Migrants in Their Place: Technologies of Control and Racialized Public Space in Arizona’ Social Problems in press.

Pickering S & Weber L 2006 ‘Introduction: Borders mobility & technologies of control’ in Pickering S & Weber L (eds) Borders mobility & technologies of control Springer The Netherlands.

Segrave M 2008 ‘Trafficking in persons as labour exploitation’ in C Cunneen & M Salter (eds) Proceedings of the 2nd Australian & New Zealand Critical Criminology Conference 19 - 20 June 2008 Sydney Australia p322- 340 PDF: http://wwwcjrnunsweduau/critcrimproceedings2008pdf (last accessed December 2009).

Segrave M Milivojevic S & Pickering S 2009 Sex Trafficking: international context & response Devon UK: Willan Publishing.

[USDOS] United States Department of State 2008 Trafficking in Persons Report 2007 Washington: US Department of State PDF: http://wwwstategov/g/tip/rls/tiprpt/2008/ (last accessed December 2009).

Weber L & Bowling B 2008 ‘Valiant beggars and global vagabonds: select eject immobilise’ Theoretical Criminology Special Issue on Globalization Ethnicity and Racism vol 123 pp 355-376.

The Construction of the Racially Different Indigenous Offender Claire Spivakovsky, Deakin University 1

The parameters of illegal labour In this initial phase of the research, the breadth of what could be labeled ‘illegal’ labour ranged from