A question of bondage (original) (raw)

By Dr Anne Gallagher

May 15, 2008 — 10.00am

What does it mean to be a slave in the 21st century? A court case in Australia is seeking to define the legalities of "owning" another human being, writes Anne Gallagher.

THIS week in Canberra, the High Court is considering what it means to be a slave in Australia in the 21st century. While the legal questions before the court are highly technical, the real issue is much more straightforward: under what circumstances will Australian law allow us to say that one person is effectively "owning" or enslaving another?

A portion of Australia's sex industry is made up of "contract girls": individuals brought over here from Thailand, Korea, China and other countries to meet Australia's growing demand for commercial and "exotic" sex. Some are under no illusion about the work they are going to do. Others imagine — or are tricked into believing — that they will be employed as waiters, cleaners or bartenders.

All share that universal and most human aspiration for a better life. It is only once they arrive that "contract girls" understand they owe a debt of between 35,000to35,000 to 35,000to50,000, an amount that is often inflated to cover employer "costs" such as medical tests and food. They are required to engage in sex work, without any payment, for as long as it takes to discharge that debt. "Contract girls" are not stupid and most end up understanding the nature of their exploitation very well. Many decide not to fight. They accept their fate and try to make the best of the period of their debt bondage — waiting for a time that they will be free to work normally or to go home. Others try to resist and escape. Physical violence, forced detention, withholding of identity documents and intimidation are used to control recalcitrant individuals.

Many "contract girls" come from countries where law enforcement is not to be trusted and where the sex industry is under the control and patronage of senior government officials. Even under the very worst circumstances, they are unlikely to go to the police. The result is a wall of silence broken only by the occasional brothel raid.

In the decade since we became aware of "contract girls", Australia has investigated and prosecuted only a handful of such cases.

One of the main questions for the High Court in Queen v Wei Tang is whether the scenario described above amounts to slavery. Australia has strong laws against slavery, but they have never been tested in this way before. Our laws on slavery are based on and give effect to Australia's acceptance of one of the oldest of all international rules: the absolute prohibition of slavery. The High Court is being asked to look at this prohibition. What does it mean? Which practices does it cover and which does it exclude?

The international prohibition on slavery was developed a long time ago in response to traditional chattel slavery: the open trading (buying, selling and transportation) of individuals, in massive numbers, for the purpose of exploiting their labour for profit.

The drafters did not predict the forced recruitment of child soldiers in Uganda. They did not imagine Indonesian workers being moved by organised criminal groups into factories, construction sites and private homes in Malaysia. They did not foresee the buying, selling and forced prostitution of East European women by UN peacekeepers in Bosnia. They certainly did not envisage Thai contract girls in Australia's sex industry.

The wheels of international law move slowly, especially when it comes to human rights. It is only over the past few years that the prohibition on slavery has been reconsidered for possible application to more contemporary forms of human exploitation.

The stakes are high. If certain practices can indeed be confirmed as slavery, then they become subject to some of the strongest, least ambiguous and most widely accepted international legal rules

in existence. Linking trafficking, forced prostitution and forced labour to slavery

will provide an alternative way of prosecuting exploiters.

Most importantly, it will also help to clarify the legal obligations of governments when it comes to response and prevention.

One of the early indicators of change was a case in the international criminal tribunal for the former Yugoslavia against three men accused of enslaving Bosnian women during the 1990s conflict. The tribunal judges confirmed that consent is not a relevant element of the crime as it is "often rendered impossible or irrelevant by a series of influences such as detention, captivity or psychological oppression". International treaties developed around the time of this judgement — including the statute of the world's first permanent International Criminal Court — have affirmed this new understanding of slavery.

International law is beginning to acknowledge the awful truth that while the old, government-sanctioned slave trade may indeed be a thing of the past, human beings have just become more ingenious at working out ways to enslave each other. International law is beginning to accept that the shackles of slavery can be fabricated out of lies, deception, false contracts and a cunning manipulation of human desire to change the cards that life has dealt.

International human rights law, including the law on slavery, is woven into the fabric of our legal system through a complex set of conventions, customs, treaties and statutes. These are not rules that have been imposed from outside. Australian diplomats, politicians and intellectuals were among the principal architects of the international human rights system. We should not be afraid to look at those international laws for inspiration and guidance. These laws tell us that slavery remains one of the worst of all crimes because it allows one person to treat another as his or her property. They tell us that the indicators of "ownership" are open-ended and evolving in line with our understanding of the ways in which effective control over a human life can be exercised.

It will be up to the High Court to tell us if slavery is alive and well and flourishing in our own backyard — and, if so, whether our laws are up to dealing with the challenges that lie ahead.

Dr Anne Gallagher is a former UN adviser on human trafficking. She is technical director of ARTIP, an AusAID-funded project that works to strengthen criminal justice responses to trafficking in South-East Asia.

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