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Court in the Act
8 September, 2008  
High Court draws the line on sex slavery

Victorian brothel keeper goes down in final sex slave round. Court of Appeal’s constrained view on “intention” to enslave not acceptable. But does the High Court’s decision have the potential to extend to slavery across the board – even to “servile marriage”? Jonathan Gadir reports

imageThe High Court has clarified the meaning of Australia’s new slavery laws in a decision that has been met with approval from anti-slavery activists, but reservations by the union representing sex workers.

The court in a 6-1 decision (Justice Kirby dissenting) upheld the slavery convictions of Melbourne brothel owner Wei Tang (pic), overturning the Victorian Court of Appeal’s unanimous order for a new trial.

Tang, who owned the licensed brothel Club 417 at Fitzroy, Victoria, is serving a 10-year prison term with a non-parole period of six years for five counts of intentionally possessing a slave and five counts of intentionally exercising a power of ownership over a slave.

She was sentenced by Judge McInerney of the Victorian County Court in 2006.

The charges related to five Thai sex workers who came to Australia voluntarily and who serviced customers for little or no payment, to pay off in each case a $45,000 “debt” to the syndicate that brought them to Melbourne.

The understanding of the Thai women was they would have the opportunity to earn money on their own account as prostitutes after the notional debt was paid off.

Their passports were taken from them and their personal movement was restricted, although they weren’t kept under lock and key.

Tang had a 70 percent interest in a syndicate that brought four of the women to Australia. The other 30 percent was owned a a co-accused, who negotiated with recruiters in Thailand.

The fifth women was came to Australia through other “owners” but ended up working at Club 417.

The $45,000 debt was reduced by $50 per customer and the women worked six days a week. To pay off the “debt” required each women to service 900 customers.

Two of the woman managed to pay off their “debts” in six months.

The Court of Appeal thought the directions given to the jury were inadequate. It held that the prosecution had to prove that Tang had knowledge or belief that the powers she exercised over the women arose from the power of ownership.

imageThe brief judgment penned by (now former) Chief Justice Gleeson, with whom Gummow, Hayne, Heydon, Crennan and Kiefel agreed, took issue with the appeal court’s view that the jury should be satisfied that Tang was intentionally exercising a power that an owner would have over property – and was doing so with the knowledge or in the belief that the sex workers were no more than mere property.

Justice Eames (pic) in the VCA had carefully limited the slavery offence by saying, however harsh or oppressive Tang’s conduct was towards the sex workers, it would not be sufficient for a slavery conviction if she was operating in the belief she was exercising some different right or entitlement, falling short of what would amount to ownership, i.e. as an employer, contractor, or manager.

Gleeson wrote:

“This cannot be accepted. What the respondent knew or believed about her rights and entitlements as an employer or contractor, as distinct from rights of property, in the perhaps unlikely event that she knew or believed anything on that subject, was not something that the prosecutor had to establish or that the jury had to consider.”

imageA jury could, according to Gleeson (pic), distinguish between slavery and exploitative conditions of labour, in the nature and extent of the powers exercised:

“In particular, a capacity to deal with a complainant as a commodity, an object of sale and purchase, may be a powerful indication that a case falls on one side of the line. So also may the exercise of powers of control over movement which extend well beyond powers exercised even in the most exploitative of employment circumstances, and absence or extreme inadequacy of payment for services. The answer, however, is not to be found in the need for reflection by an accused person upon the source of the powers that are being exercised.”

Kirby’s support for the Victorian appeal court’s position reveals a divide, which is surprising in such a well-worn area as the general principles of criminal responsibility.

Does intention encompass an awareness of, in Kirby’s words, the “quality” or “character” of the physical acts?

imageKirby (pic) believed his was the “traditional approach [to] intention”. He used the example of someone possessing a suitcase of illegal drugs: to be guilty, the accused would need to be “aware of the nature and quality of the control asserted”.

Kirby wrote of the Slavery and Sexual Servitude provisions of the Criminal Code, division 270:

“The ‘intention’ is not simply an ‘intention’ addressed to the ‘physical elements’ concerned with ‘possession’ or the exercise of powers attaching to the ‘right of ownership’. It is also an intention directed to the underlying entitlement that gives rise to those elements. Without that ingredient of the offence, the word ‘intentionally’ might just as well not have been present.”

Kirby said his construction of the statute was backed up by the severity of the punishment for slavery.

Had Wei Tang been facing the (more recently added) debt bondage offence, the maximum penalty would have been just 12 months, as opposed to 25 years.

Kirby also was concerned about undermining the laws which legalise the sex industry, and not returning elements of the sex industry “to operate as was previously the case, covertly, corruptly and underground”.

Elena Jeffreys, president of the Scarlet Alliance, an Australian sex workers’ association, is critical of the High Court decision.

imageShe believes it will make an already unhelpful “raid and forced rescue culture” practiced by law enforcement agencies even worse, opening the gate to more prosecutions, which have negligible benefit for migrant sex workers’ rights and conditions. Jeffreys (pic) told Justinian:

“Migrant sex workers experience a very high level of surveillance, AFP and Department of Immigration interference in their workplaces, being taken away and questioned, being questioned while at work. These are conditions that sex workers of western background have not experienced in Australia probably since the Fitzgerald inquiry.”

The Scarlet Alliance is concerned that migrant sex workers are being silenced because their consent to a debt bondage arrangement is irrelevant under the debt bondage offence. Jeffreys says:

“Now to add to that, thanks to this High Court decision, you don’t really have to effectively prove intent in a slavery case.

So the bar is being dropped lower and lower for how we measure slavery and trafficking in Australia.

We know [the punitive approach] was the wrong approach for the sex industry generally for a hundred years, which is why we have decriminalised the industry in Australia.

However with migrant sex workers it’s like we’re re-creating the corruption of the 1920s, by lowering the bar for police to get involved.”

imageJennifer Burn (pic), Director of the Anti-Slavery Project at the University of Technology, Sydney, views the High Court judgment differently:

“For me the decision is really significant because it clearly applies to slavery across the board … [The court] is looking to the condition of slavery, a constellation of facts that could be found in any kind of activity, including agriculture, cooking, hospitality, domestic servitude, or servile marriage.

The view expressed by Gleeson was absolutely consistent with the 1926 International Convention [on slavery]... All those indicia of slavery and how slavery can be evidenced are really important.”