Rag trade, restaurants may be at risk
AUSTRALIA’S anti-slavery laws could be interpreted in a way that netted employers who exploit workers, High Court justice Michael Kirby has warned.
Speaking from the bench in a sex-slavery case yesterday, he said if the court did not define “slavery” with care, “then a lot of harsh employment contracts are going to slip over into ‘slavery’ and are going to be prosecuted with a potential of 25 years’ imprisonment on conviction”.
“There are an awful lot of people in this country working in back rooms of restaurants and in the rag trade (whose employers) would be susceptible to … prosecutions for slavery, and that cannot be what Parliament intended,” Justice Kirby said.
The lawyer before him, Wendy Abraham for the Crown, said: “But really, with respect, Parliament cannot have intended either that it is OK to possess somebody.”
Justice Kirby was part of a full bench of the High Court hearing an appeal against the conviction of a Melbourne woman on 10 slavery-related charges.
In 2006 Fitzroy brothel owner Wei Tang was convicted by a County Court jury of having possessed and used as slaves five Thai women she imported to work as prostitutes.
The women were told they had debts of up to $45,000 to work off, which would involve servicing up to 900 men. The prosecution alleged their passports were taken away, they were denied freedom of movement, and had to work six days a week for no payment other than reduction of the “debt”.
Wei Tang was sentenced to a minimum of six years in prison, but was released on bail in 2007 when the Court of Appeal ordered a retrial. The Crown appealed to the High Court against that decision. Wei Tang has cross-appealed to the High Court asking for an acquittal.
Wei Tang’s lawyers say she believed she had an employer relationship with the women. The Crown argues that it is not necessary for her to have knowingly enslaved, only that she knowingly set up the conditions that effectively made the women slaves.
The landmark case challenges the constitutionality of the laws. The federal Attorney-General and the Human Rights and Equal Opportunity Commission are appearing to defend them.
Justice Kirby said it would be naive “if we did not keep in the back of our mind that there are very large movements of populations in the world today, including of commercial sex workers … who do so for economic advancement, and that is just part of the reality of the world we live in”.
Ms Abraham replied: “It is considered, in effect, a modern form of slavery, because in many instances what is happening is similar to what happened in this instance. ”
But Justice Kirby said: “The fact that these were women who had worked in the commercial sex industry in Thailand and came to this country in pursuit of an arrangement which they made there, and stayed on in the brothels after they had paid off their debt, is at least arguably evidence against notions of involuntary slavery.”
Justice Kirby said that when he was an articled clerk there were many elements of his employment that were “very similar to slavery: long hours, lack of food and various forms of oppression. But no one would have said it was slavery.”
First published in The Age.