An appeal before the High Court will decide how Australia defines slavery, giving the legal system a platform to deal with cases of exploitation of migrant sex workers.
IT WAS probably one of the more mixed audiences that Australia’s seven High Court judges have had. Up the back sat a quiet Filipino nun in a habit and veil, interested to see what this nation’s highest court made of issues surrounding the people she works with in her homeland: women trafficked for sex.
In the front row, taking meticulous notes of the complex proceedings, sat sex-worker representative Elena Jeffreys. Her hair was dyed lime-green and coin-gold; she wore a leopard-print coat and fake-croc platform shoes over blue ankle socks; and her top had purple words running down the sleeves – rentboy, slag, slut, harlot, hooker . . .
Welcome to the landmark legal case of the Queen against Wei Tang. This case will decide how Australia legally defines slavery and “possession” of one person by another. It will decide how Australian anti-slavery laws in the 21st century should respond to the nimble evolution of human wickedness into new forms of human exploitation.
Jeffreys, president of the Scarlet Alliance (the Australian Sex Workers Association), says that whatever the outcome, this case will not be the whole answer: “Migrant sex workers deserve labor rights in Australia so that trafficking doesn’t occur.”
It all began in a brothel in Brunswick Street, Fitzroy, where the licensed owner, a Chinese immigrant named Wei Tang, had five Thai women working for her as prostitutes. They arrived in 2002 and 2003 on visas that were fraudulently obtained and worked for her under conditions that prosecutors would later allege amounted to slavery. The women had all worked in the Thai sex industry and knew they were to work as prostitutes here. Four of the women were “purchased” from Thai recruiters for about $20,000 each (one woman was bought from a “Sydney owner”).
Upon arrival in Australia, they had little if any money or English and knew no one. They were told they were “contract girls” who owed a “debt” of between $40,000 and $45,000 that they had to work off (a figure much higher than they had been led to expect). This would involve providing sexual services for no payment for up to 900 men. They were housed in bedrooms in which they slept up to four at a time on mattresses on the floor. Their passports and return tickets were taken from them and locked away and their freedom of movement was restricted. They worked 10-to-12-hour shifts six nights a week just to reduce their “debt”, and if they worked a seventh night could keep that money for themselves.
The brothel was raided in May 2003 and Wei Tang was later charged under 1999 federal laws with five counts of possessing a slave and five counts of using a slave. Her lawyer argued that the contracts were not coercive in that they did not involve violence or fraud, and that this was not slavery but debt bondage. At her first trial, the jury could not reach a verdict, but she was convicted and sentenced to a minimum of six years’ jail at a second trial in 2006.
That was overturned on appeal, Tang was released on bail and a third trial was ordered. Federal prosecutors appealed against that decision to the High Court and Wei Tang cross-appealed to the High Court asking for an acquittal.
If nothing else, the legal tangle suggests that something was amiss with the wording of the laws. Since then, Federal Parliament has passed additional laws naming as separate offences sex trafficking and causing a person to enter into debt bondage.
This case remains important because the questions being raised – such as whether Tang should have been convicted if she did not knowingly intend to possess slaves – have implications for cases even under the new laws.
The High Court must decide the constitutionality of the slavery laws, how slavery should be defined in the 21st century, and what needs to be proved to win a conviction. It must also decide how the crime of slavery should be interpreted in relation to our international human rights obligations.
“It’s the most crucial test of our criminal laws against sexual and all other forms of slavery ever to come before an Australian court,” says Nina Vallins, joint co-ordinator of anti-trafficking group Project Respect.
Vallins says 1000 women are trafficked every year into Australia for the purposes of sex work. Scarlet Alliance claims the figure is only 400 and says the women are not “trafficked” but are migrant sex workers. “The money they earn here sets them up for the rest of their lives in their home country,” Jeffreys argues.
Vallins defines trafficking as having three ingredients: a person is moved from place A to place B; the person has either been kidnapped, or has agreed to go but been deceived about the circumstances that await them at point B; and the purpose of moving the person is to exploit them.
The UN has estimated that between 750,000 and 4 million women, children and men are trafficked internally and across national borders each year.
This week’s case was considered so significant that Solicitor-General David Bennett appeared to speak for the federal Attorney-General, arguing that the slavery laws were supported by the external powers section of the constitution. He said the laws were drafted along the same lines as international anti-slavery treaties to which Australia is party.
Brett Walker, for the Human Rights and Equal Opportunity Commission, also joined the case. He argued that international and Australian lawmakers had intended the definition of slavery to include slavery in all its forms, including sexual servitude and debt bondage.
For the High Court, one of the problems is that the legal definition of slavery is a circular one: a slave is someone over whom another person exercises powers of ownership. Also, there are other relationships, such as employment, in which one person exercises some degree of “ownership” over another.
Justice Michael Kirby said if slavery was not carefully defined, “then lots 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 working in back rooms of restaurants and in the rag trade (whose employers) would be susceptible to . . . prosecutions for slavery.”
Kirby asked whether it was significant that two of the women stayed on to work in the brothel after their “debts” were paid out: “That rather suggests for them that this was an employment, not slavery.”
Wendy Abraham, for the Crown, said, “Your Honour, with respect, a happy slave is a slave nonetheless . . . They worked for six months with next to no money.”
What Wei Tang intended, and how important her thinking was, are other crucial questions for the court. Her lawyer, Neil Young, QC, argued that the trial judge erred in not telling the jury they must be satisfied that she was aware that by her actions she was treating the women as property.
The Crown argues it is necessary only that she knew about the harsh conditions she imposed on the women, not that she turned her mind to whether this might mean she was enslaving them.
Kirby raised concerns about this, saying the requirement that an offence be intentional “is sort of the golden thread of our criminal law”.
Chief Justice Murray Gleeson asked, “Would it suffice if the basis of the respondent’s belief as to how she could deal with these people as she did was simple, ‘They had been bought and paid for, that is why I can deal with them this way’ “?
Justice Kirby asked Young about the disparity between the real costs of importing women – a $2000 air fare and several months’ food and accommodation – and the $45,000 “debt”.
Young replied: “The other aspect of what I call the arrangement . . . was an opportunity to continue to work in Australia . . . there was an opportunity being exchanged.”
The court has reserved its judgement, which will be closely scrutinised by human rights advocates as well as lawyers, police and prosecutors.
Vallins, whose organisation works with trafficked women, hopes the finding will enshrine the principle “that women shouldn’t be enslaved, and that sex workers deserve the same protections as the rest of us”.
Jeffreys says it will take more than changes to legal wording to address the problem of migrant sex workers whose human rights are abused.
She wants the Federal Government to offer more women legal visas so they do not have to go through an agent.
She also wants education programs for brothel owners and workers “so people know they don’t have to put up with conditions of debt bondage. They introduced a whole lot of new laws but at no time has the Government funded (programs) to tell people what the new laws are.
“Prosecutions are not indicators of success. They are the result of a short-sighted failure to understand the issues.”
Karen Kissane is law and justice editor.
SEX SLAVERY AND THE LAW
AUGUST 1998 Wei Tang granted prostitution service provider’s licence to operate a brothel and escort agency business in Fitzroy (Club 417).
JUNE 2002 Paul Pick approved as manager of Club 417 under the Prostitution Control Act.
2002-2003 Five Thai women voluntarily agree to come to Australia to work as prostitutes. Thai recruiters were paid a sum of money, generally $20,000, as a purchase price for each woman. Women are told they must work off a total debt of up to $45,000.
JANUARY 2003 Tang, Pick and an associate, Thai national Donporn Srimonthan, arrested and charged. Srimonthan pleads guilty to three slave-trading offences and is jailed.
MAY 2005 Pick found not guilty of eight counts; the jury is hung in relation to other counts against him and all counts against Tang.
JUNE 2006 Tang is re-tried alone and convicted of five counts of possessing a slave and five counts of exercising over a slave a power attaching to the right of ownership, namely, the power to use. Sentenced to 10 years’ jail with a non-parole period of six years.
FROM JULY 2007 Victoria’s Court of Appeal quashes Tang’s convictions and orders another re-trial. Tang is freed on bail. Federal prosecutors appeal to the High Court against the quashing of the convictions. Wei Tang cross-appeals to the High Court. Case began before the full bench this week.
First published in The Age.