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Slavery in the 21st century
How do you define slavery in the 21st century? That's the question faced by the High Court this week. Five Thai prostitutes whose passports and airline tickets had been confiscated had to work off a $40,000 debt before they received any wages. Is this a valid employment arrangement, or modern-day slavery?
President, Scarlet Alliance - the Australian Sex Workers Association
Melbourne Lawyer who does voluntary work for Project Respect
International lawyer, former adviser on trafficking to the UN
Immigration lawyer, Director Anti-Slavery Project, UTS
http://www.abc.net.au/rn/lawreport/stor ... 241462.htm
This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.
Damien Carrick: In a few hours' time the High Court will be hearing a case about something most of us assume doesn't even exist: slavery.
This morning our country's leading legal minds will be pondering, what is a slave? And what is it to possess a slave? And this isn't some obscure legal point, in fact a sizeable number of investigations, prosecutions and convictions are all awaiting the outcome of this case.
Hui Zhou is a Melbourne lawyer who does voluntary work with Project Respect
, an organisation that works with trafficked women. She's followed the Wei Tang case as it has wound its way up through the Victorian courts, all the way to the High Court.
Hui Zhou: Wei Tang was the owner of a brothel located at 417 Brunswick Street in Fitzroy, in Melbourne.
Damien Carrick: Which is a pretty trendy restaurant strip, isn't it?
Hui Zhou: Yes, it is, it's a cultural centre in Melbourne.
Damien Carrick: And what was she found guilty of by a jury some time back?
Hui Zhou: She was found guilty of five counts of possessing a slave, and five counts of using a slave.
Damien Carrick: Now that case was overturned on appeal, and is now before the High Court. But let's go back to the beginning of the story. What were the facts in this case? Who did it involve?
Hui Zhou: It involved Wei Tang. She was the defendant and the victims in the matter were five women; they were all from Thailand, and what we do know from the Court of Appeal decision is that they recruited in Thailand, they were approached by some people who said to them, 'Look, if you want to come and work in the sex industry in Australia, you can make lots of money.' We don't know very much about the contracts; they were told different things, but essentially when the women got to Australia, they were told that they owed approximately $40,000 to $45,000 and that in order to pay off that debt, they had to work in a brothel. They were sold for approximately $20,000 to Wei Tang who was the owner of the 417 brothel. There's a little bit of contention in relation to the degree of knowledge they had about the amount of debt, and it appears that each woman had a different understanding of what they were agreeing to.
Damien Carrick: These women came to Australia on tourist visas?
Hui Zhou: That's correct.
Damien Carrick: So they were sold by the Thai brokers to Wei Tang and some other people?
Hui Zhou: Yes.
Damien Carrick: Hui Zhou, what happened when these women arrived in Australia? What happened to them then?
Hui Zhou: They were met by someone associated with the brothel owner, Wei Tang, who then took them to a residence in Fitzroy. They were told that they would have to work at the 417 brothel and their passports were taken from them as well as their return airline ticket, and that was locked away in a locker at the 417 brothel.
Damien Carrick: Where did these women live once they arrived in Australia?
Hui Zhou: They lived in a residence in North Fitzroy, which was owned by one of the managers of the brothel. She lived there with them, and it appears that there were three or four women sleeping in one room. There was also another apartment across the road from that residence, and some of the women also lived there. It was, I think, a one-bedroom flat.
Damien Carrick: Now what were the working arrangements of these women at the brothel?
Hui Zhou: Essentially to pay off the $40,000 to $45,000 debt they had to work, and the arrangement was that for every man they saw at the brothel, they would pay off $50 of that debt; it worked out to be approximately 800 to 900 men, and they also worked six days a week at least for 10 to 12 hours per day.
Damien Carrick: And what about that seventh day?
Hui Zhou: That seventh day was what they called a 'free day', and they could either not work on that day, or in order to make money for themselves, they could elect to work, and which they would be paid that $50 for themselves.
Damien Carrick: Were the women free to come and go around Melbourne? Were they under lock and key? I mean were there bars on the window in the place or in the brothel?
Hui Zhou: It appears that there were many bars at the house. There aren't any bars at the brothel
. However because they lived with the manager, essentially someone was with them at all times. They spent 10 to 12 hours a day at the brothel, and the time that they spent at the house was, you know, essentially for sleeping and all that sort of stuff. Some of the women felt that they were locked in, although there's no evidence that they were
. On one occasion there was evidence that they had been physically locked in.
Damien Carrick: Were they free to travel around Melbourne as they pleased?
Hui Zhou: They were driven from the brothel to the house and vice versa, and they were taken—escorted, essentially—to the shops and all that sort of stuff, and sometimes on weekends they were taken to the karaoke bars and things like that for a bit of recreation. But from the evidence it appeared that the women essentially expressed that they didn't feel that they were free, although it wasn't ever really explicitly spoken that they weren't free to come and go.
Damien Carrick: What was the relationship, the personal relationship between the Thai women and Wei Tang and the other people who worked at the brothel?
Hui Zhou: They seemed to have a fairly complex relationship. The Court of Appeal held that there were aspects of ownership. However, it also appeared that the women called the woman that they lived with 'Mummy', and she was the manager of the brothel, and they did go to her with problems, and some of the women expressed that they had a good relationship with her.
Damien Carrick: So it was a complex relationship? It wasn't one of fear and intimidation?
Hui Zhou: Not necessarily.
Damien Carrick: Now these five women came to the attention of authorities when there was I think a raid by Immigration officials on the brothel. At the time of the raids, two of these women had in fact paid off their debts, hadn't they?
Hui Zhou: That's correct.
Damien Carrick: And the restrictions placed on them had been lifted and their passports had been returned to them, and they were free to choose their hours of work, and they were then at that point being paid for their prostitution, and they were also free to live in accommodation of their own choosing?
Hui Zhou: That's right.
Damien Carrick: And once they had paid off the debts, they had chosen to continue working in the brothel
Hui Zhou: That's right.
Damien Carrick: After the raid on the brothel, charges were laid against Wei Tang. This case went to trial; what did the jury find and what sentence did Wei Tang receive?
Hui Zhou: The jury found at first instance, at the first trial, found that they couldn't come to an agreement, so there was a hung jury on all ten counts. Wei Tang was then re-tried. She was found guilty of all ten counts.
Damien Carrick: Of possessing a slave?
Hui Zhou: Yes. Five of possessing, and five of using a slave. She received a 10-year term of imprisonment, with six years to serve as a non-parole period. The defence then lodged an appeal with the Court of Appeal, and the Court of Appeal quashed the convictions.
Damien Carrick: Melbourne lawyer, Hui Zhou.
It was about a year ago that the Victorian Court of Appeal quashed Wei Tang's convictions. The court ruled that the trial judge had erred when he directed the jury about the elements of the offence. The trial judge had told the jury there were three elements, first, that the women were slaves, second that Wei Tang possessed them as slaves, and third that Wei Tang knew they were reduced to slaves.
The Appeal Court ruled that the trial judge was wrong about this third element. It wasn't enough that Wei Tang knew they were reduced to slaves; she also had to have the intention to assert ownership over the women.
Jennifer Burn is an immigration lawyer; she's also the director of the Anti-Slavery project at the University of Technology in Sydney
Jennifer Burn: The main question before the High Court is the definition of slavery in the criminal code. And the actual slavery offences are that a person who intentionally possesses a slave, or exercises over a slave any of the powers attaching to the right of ownership. It's very difficult to know what that means, whether it refers to slavery as it was understood when slaves were transported across the Atlantic between Africa and other countries; or whether it encompasses what we now know as a modern form of slavery.
Damien Carrick: And presumably a whole bunch of other investigations, prosecutions, and convictions will rest on how the High Court comes down on this question?
Jennifer Burn: It's very important. We have been testing the criminal law; significant amendments were made in 1999 and then 2005, but the High Court determination is absolutely critical. So it will be a major advantage to everybody when there is some clarity from the court.
Damien Carrick: Now this is the first time a trafficking case has come before the High Court. Last year, for the first time, a trafficking case came before the New South Wales Victims' Compensation Tribunal
. Tell me about that case.
Jennifer Burn: The case was about a young woman who was trafficked to Australia when she was only 13.
Damien Carrick: A child.
Jennifer Burn: A child. In 1995. And she brought a case for victim's compensation last year in 2007, and she explained that she had come to Australia with the agreement of her father, who thought that she was coming here to work as a nanny to look after children. But instead of that, she was placed in sexual servitude. She was also told that she had a debt of about $35,000 that she had to pay off by having sex with women
. She was restrained, she had no freedom of movement, she didn't have any money and her identity documents were confiscated. She was eventually detected by Immigration compliance officers, after she'd been in Australia for ten days. But the evidence to the Victims Compensation Tribunal was that during those ten days she had had sex with 100 men. Now after that, she was interviewed, and returned to Thailand. And following this case, we are in the process of exploring with other women who've been trafficked to Australia, the applications for Victims Compensation.
I think the case was important also for another reason: it really signals the progress that's been made in Australia since 1995. Really, it's almost a before and an after snapshot. In 1995 there were no slavery offences in the criminal code. In 2007 there are now offences of trafficking, trafficking in children, and debt bondage.
Damien Carrick: Now Nin was a child; I mean presumably there are also adults who come to Australia who don't understand that they're going to work in Australia as prostitutes. But is it fair to say that most women who do come understand that they will be working as sex workers?
Jennifer Burn: Many women do know that they'll be working in brothels in the sex industry. Other women don't know. But for the purposes of the criminal code, it doesn't really matter whether they knew that they were coming to work in the sex industry or not. It's really a whole lot of other factors around that that are critical in the identification of the trafficking and the slavery offences.
Damien Carrick: What are those factors?
Jennifer Burn: They include whether a woman was deceived, for example; about whether she'd be providing sexual services; or even if she knew that sexual services were part of the deal, whether she was deceived about the nature of the services, the conditions of work in other words. Whether or not there was deception about whether she would be free to leave the places that she worked, whether she'd have freedom of movement. And whether there's a debt. So these are now factors that are incorporated into the criminal code, and indeed there's a specific offence of deceptive recruiting for sexual services.
Damien Carrick: Does the state of mind of the woman count? I'm thinking here, we're talking about women from desperately poor developing countries, who might make, in their own mind, a calculation that this is a rational choice, an opportunity.
Jennifer Burn: And it may be a rational choice for them. It's very easy to forget about the global world when we live in Australia, and in very many parts of the world, there is extreme poverty. And it might not be seen as being a hindrance in the mind of a woman who decides to come to Australia to work in the sex industry. But I suppose what the law says is that the law is concerned to ensure that things are appropriate, that there's not exploitation [Ausbeutung], that there's not fraud [Betrug] or deception [Täuschung], that there is no harm [Leid, Nachteil, Schaden], that there isn't a harsh and unreasonable debt [Schuldenfalle], for example. So the law will look at all the conditions around the entry to Australia and the experiences faced by the woman while she is here.
Damien Carrick: Now earlier this year, there was a raid on a brothel in Sydney involving I think something like 10 Korean women; what do we know about that case?
Jennifer Burn: Well that case was reported in the press, and one of the interesting things about that case is that all those women held visas that entitled them to work in Australia. Again, just referring to the media reports, travel documents were taken from some of the women.
Damien Carrick: The Law Report is today looking at women from developing countries who work in Australia's sex industry. It's an issue that was even raised at the recent 2020 Summit.
Elena Jeffreys: I was lucky enough to be representing Australian sex workers at the 2020 Summit recently in Canberra. Scarlet Alliance, the Australian Sex Workers' Association, took to that Summit the importance of reorienting anti-trafficking measures in Australia from a prosecution focus to a prevention focus, and we would include more humane access to visas for migrant sex workers, as a key part of preventing human trafficking into Australia
Damien Carrick: Elena Jeffreys is the president of the Scarlet Alliance, the Australian Sex Workers Association
Elena Jeffreys: Human trafficking is a transnational crime. However, by the time surveillance and detection and prosecution has taken place, the human rights abuse has already occurred. So a fully thought out response to trafficking into Australia will include a range of prevention measures, including allowing women to travel into Australia on visas that they can access themselves without having to go through third party agents and therefore be vulnerable to trafficking.
Damien Carrick: If Australia changed the laws to allow more women from developing countries to come in on work visas to work, bet it in the sex industry or any other industry, it would pull the carpet out from under the traffickers, by allowing women to travel here independently to work and they wouldn't have to resort to third parties or agents.
Elena Jeffreys: What we're calling for is a human rights framework where sex workers receive equal treatment to other people
. That is, that sex workers aren't singled out to be denied visas to enter Australia; that we treat women or men wanting to travel to Australia for work from South East Asian regions with the same dignity and respect as we would treat what we traditionally understand as a skilled background wanting to migrate into Australia.
Damien Carrick: But is providing women from developing countries with bona fide work visas really going to solve the problem? Earlier this year there was a raid on a brothel in Sydney involving I think something like 10 Korean women and some of those, or all of those, did have work visas, and there were questions there about trafficking and about exploitation.
Elena Jeffreys: We have had in Australia what would appear from the outside to be an ad hoc raid and deportation approach to Asian-background sex workers in Australia
, and millions and millions of dollars have been poured into that program with very few actual trafficking convictions in Australia. So we wouldn't like anybody to jump to conclusions about any of the women that were picked up in March until those cases are held in court. We can't say for sure that that's what was being busted in March.
Damien Carrick: If you did have these visas, would that mean that women would come to Australia and not come through an agent or a third party and find themselves entering into a kind of a contract, whereby they have to pay off a debt before they even start earning money from the work that they're doing?
Elena Jeffreys: The vast majority of migrant sex workers in Australia are from an Anglo background, from the UK. The second largest demographic would be from New Zealand and America
. And yes, there is also a demographic of sex workers from South East Asian countries, Thailand, South Korea and China, and other countries around the region as well. Most of the women that are coming into Australia for sex work are accessing visas independently. Some of the women coming in to Australia for sex work are accessing visas through migration agents, or third-party contracts where they will agree to have all of their flights paid for, their accommodation paid for and generally their food paid for, and a lot of their transport paid for when they get to Australia. And they have a place of work when they get here. And in return they will work for a period of time paying off the debt contract to the migration agent that has helped arrange their visa and their travel and their transport
Those debt contracts
, the overwhelming majority of those debt contracts, are trouble-free and arranged in a way that both the sex worker and the person arranging the visa are happy at the end of it, and have a good relationship, and the person has a great time working in Australia, pays off their contract, stays and earns some money, sends money home, saves up some money while they're here, and goes home and has an amazing story to tell their grandchildren about the time that they travelled to Australia, and how much fun and how interesting it was.
Some of those debt contracts have been arranged in a situation where people have taken advantage of the vulnerability and the perceived lack of rights that an individual who's coming in to Australia for sex work may have, and some of those contract fees are ridiculously over-priced
. This is when situations arise that we understand as human trafficking. When a person has been deceived, when their freedom is being curtailed, when their income is being withheld, and when they're basically in slave-like conditions, where they don't have control over their labour in a slave-like situation, with the person who has arranged their contract.
Damien Carrick: Like Elena Jeffreys, Jennifer Burn agrees about the need for strong prevention strategies. But unlike the Scarlet Alliance, Jennifer Burn maintains that Australia's current focus on investigations and prosecutions is a good use of resources. And she doesn't think visas in themselves are the answer.
Jennifer Burn: I'm not so sure that I share the Scarlet Alliance view on this. I look at the numbers of people who are coming to Australia on lawful visas, and I'm also mindful of levels of exploitation. I don't think that a visa itself is going to reduce or minimise exploitation, and in the 2007 year there were 130,000 working holiday visas granted to young people aged between 18 and 30
, who want to come and holiday in Australia. There were also almost 230,000 student visas granted
, and over 132 temporary work visas, such as the 457 visa. And we know that there have been many accounts of exploitation of people who hold these visas. So I don't think that a visa itself is going to operate to reduce or minimise slavery.
Damien Carrick: But coupled with the implementation of a sort of comprehensive labour rights framework for short-term visitors from overseas
, that could be a way of minimising exploitation.
Jennifer Burn: I would agree that the issue is that in Australia we do not have a proper system of protection of overseas workers
, and there are a whole lot of systems and reforms that could be introduced that would go part of the way towards minimising the possibility of exploitation. And I think that the debate in Australia will continue to canvass these issues and I hope that organisations and individuals concerned about these things will contribute to the government review of temporary work visas.
Damien Carrick: What do you say to the argument that sometimes contracts are not in themselves exploitative? Because often women from developing countries have no way of financing their trip unless they enter into a contract.
Jennifer Burn: Well the contracts that we've read about, and that we know about through the court processes and other kinds of evidence, are enormous. The going rate seems to be $45,000. It seems to be exploiting women in the region. We wouldn't imagine a situation in Australia where an Australian worker would consider such a contract. So I think that we need to look at these kinds of issues in a bit greater depth.
Damien Carrick: On that point, the Scarlet Alliance say the great bulk of foreign women who come to Australia and work in the sex industry are women from other rich world countries, and that shows that having foreign women working as sex workers in Australia is not necessarily exploitative.
Jennifer Burn: Oh no, it's not. I mean I think that's absolutely clear, and I'm not commenting about those situations. Many women do choose from such countries to come to Australia and work in the sex industry in Australia. In most parts of Australia the sex industry is not criminalised
. It is possible to work safely in a good environment, and I'm sure that that's part of the decision in the minds of many women when they come to Australia to work as migrant sex workers...when they're not in an exploitative situation.
Damien Carrick: And when we're talking about people from developing countries, can you think of ways which would make working in Australia safer, less prone to gross exploitation?
Jennifer Burn: Nothing is going to work 100%. But it would be very useful in such countries if there was clearer information provided to people who are obtaining Australian visas, about the Australian legal and social environment
. This information should include information on a person's rights and responsibilities; information about the police system that we have; the systems of support that we have. When people are coming on work visas, then there should be information that's given to them about where they can get help: what kinds of work conditions are considered acceptable in Australia? These are some of the areas of information that I would like to see given to foreign workers, especially from developing countries, where English might not be the first language. This would help minimise the risk of exploitation. So it's a bundle of ideas in country of origin, and then information that would apply in Australia, even information such as 000 is the number for emergency police help across Australia. This is not routinely provided to those who are coming here to work or to visit, and I think it would be a good idea.
Damien Carrick: Immigration law expert, Jennifer Burn.
Anne Gallagher is an international lawyer. She's a former adviser to the UN on trafficking and she's worked in over 50 countries.
She reckons that people trafficking needs to be looked at as part of the larger issue of labour movement from poor to rich countries
Anne Gallagher: Worldwide there have been very few prosecutions relative to the agreed size of the problem. And there's a few reasons for this. I think the main problem is probably the most intractable. The economies of many countries depend to a greater or lesser degree on a disposable workforce
, a group of people who can perhaps not be subject to the same kind of protections that the regular workforce is, a group of people who are being paid at a lower rate, and a group of people who can be very quickly moved out, or moved on, if the situation changes.
Damien Carrick: It does throw up some very tricky issues. I mean if you're a woman from a desperately poor developing country, and you choose to work as a prostitute in a Western country as a contract girl, whereby you pay off a debt by sleeping with men and after you've paid off that debt, you can then work and keep the wages, and sometimes apparently they can be very good wages. From the perspective of that woman, that can be a good choice, can't it?
Anne Gallagher: Well I guess there's a couple of points here. First of all the scenario that you paint is an illegal one. It's illegal because it's exploitative according to the laws and standards that have been established in this country. But I guess what you're asking is whether a judgment about what constitutes exploitation should depend on the perspective of the individual who is being exploited or not
. And for me that's a question about human rights, and it's a question about whether we accept that a migrant is subject to a lesser standard than in this case an Australian citizen. Should we accept that employers deserve to work at a higher profit margin? For example, just because their employees are foreigners.
And we can look at other examples that really don't differ from the example that you just presented. Should Thailand tolerate Burmese workers being paid less than $1 a day to work in a glove factory because that Burmese person is getting more than if they'd stayed at home? And even here in Australia, should Australia tolerate farmworkers form China being paid less than the minimum wage
, just because it is still much more than they could hope to make in China. And I think if we answer No to those examples, then the question becomes Why should it be different for sex workers?
And I also think we shouldn't pretend that working in a brothel is like working in a shop. It's not. This is an industry that, as the Netherlands has discovered, no matter how well it's regulated, attracts criminals and exploiters. And there are also very specific occupational hazards that make prostitution different to other jobs
, and that needs to be taken into account as well.
Damien Carrick: Anne Gallagher, a former adviser to the UN on trafficking issues.
That's The Law Report for this week. A big Thank You to produce Anita Barraud and to technical producer Kyla Brettle.