Deciphering Slavery at Club 417

(i) In 2008, the High Court of Australia upheld the first ever slavery convictions against Wei Tang, the owner of a licensed brothel in Melbourne known as Club 417. Wei Tang, a Chinese immigrant, was found employing five alien sex workers imported from Thailand. She has been at the receiving end of a trafficking syndicate (here after "the syndicate"), of which these Thai sex workers were brought into Australia under various guises. A Thai woman, named only as DS, was one of the members of the trafficking syndicate (not the focus of the court proceedings) who recruited these sex workers. Before coming to Australia, these sex workers were already working in sex industry in Thailand and they came to Australia by their own volition. Each of these Thai women has received initial payment of AUD 20,000 through the syndicate. Upon arrival, when working for Wei Tang, each of these Thai women was to repay the debt of AUD 45,000. Conditions for work under this “contract” are described by court document as:

"14. In summary, then, while under contract, each complainant was to work in the respondent's brothel in Melbourne six days per week, serving up to 900 customers over a period of four to six months. The complainants earned nothing in cash while under contract except that, by working on the seventh, "free", day each week, they could keep the $50 per customer that would, during the rest of the week, go to offset their contract debts." [#1]

A shrewd exploitation or slavery ?

(ii) Various observations could be made, at first instance, about this unconscionable process of profiteering by Wei Tang. Saved for the moment that we're talking about the sex industry, for those "Greed is good" profit minded people would say Wei Tang is just a shrewd business woman, who prepared to 'goes over the edge' in making profits. To the majority of public, such exploitation of sex workers by Wei Tang is viewed as unethical and unacceptable. However, whether such practice was perceived as unethical or unacceptable, a business person could not be criminally charged for being 'greedy' and for exploiting his/her contracted workers. Then it comes the 'novel' charges of slavery [#2], of which Wei Tang had been found guilty, unanimously, by the Trial Judge and all the High Court Judges [#3]. On HCA considerations:

"1. GLEESON CJ. Following a trial in the County Court of Victoria, before Judge McInerney and a jury, the respondent [ed. Wei Tang] was convicted of five offences of intentionally possessing a slave, and five offences of intentionally exercising over a slave a power attaching to the right of ownership, namely the power to use, contrary to s 270.3(1)(a) of the Criminal Code (Cth) ("the Code"). She was sentenced to a lengthy term of imprisonment.... "[#1]

The similarity and contrast

(iii) From the first look of this case, many in our activist circle -- we are not lawyers, by the way -- have been noting that this slavery case may be of a 'marginal' or 'borderline', in ways of the evidence. As a human rights activist, I myself also was a bit baffled when looking into any hard evidence or the signs of severe deprivation of personal liberty about which, I couldn't obviously find in this case. [In this way, I was occasionally noting that the Manus/Nauru offshore slavery cases are 'stronger' than that of Queen vs. Tang].

But then, how all the Judges, including from HCA, have unanimously found that Wei Tang was guilty of slavery offences ?[#3] We've got to keep in mind that the laws and criminal justice system here in Australia have all time been very strict and that, to found someone guilty, the criminal counts must have to have beyond any reasonable doubts. We -- the activists -- therefore need to revisit this slavery case in detail, deciphering the underlying slavery laws and related international instruments.

Slavery at Club 417 Downloads

The way I see it, 'the owner of Club 417 exploiting alien sex workers' and 'the LNP Government with elite power groups exploiting asylum-seekers on Manus and Nauru' would have both similarity and contrasts. The lack of legal protection by these alien sex workers after that brothel was raided in 2003 is pretty much in parallel with the lack of legal protection for our asylum-seekers on Manus and Nauru. By and large, both those alien sex workers and offshore asylum-seekers are considered 'illegal entrants' and 'unlawful non-citizens', of which generally do not have the proper legal protections. That will be the similarity.

On the one hand, the Australian government in 2003 had decided to bring to the court the owner of Club 417, Wei Tang, on slavery charges. Even the HREOC had intervened on the appeals process to the HCA on the case of Wei Tang vs. alien sex workers. Of these slavery cases in our mind -- the asylum-seekers on Manus and Nauru -- there will be no such cooperation by the government. In the stead, the Australian Government will resist tooth and nail on these slavery cases ever bringing onto 'any court system'. That will be the contrast.

With this similarity and contrast in mind, the primary purpose of this exercise has been to study how the slavery laws can be applied on the cases of exploitation of human beings. I urge all my activist friends, and also those on Manus/Nauru, to carefully have a look into the following discussions, which may be of direct relevance to our offshore slavery cases.

The popular opinion vs. viewpoints of law

(iv) Influenced by popular campaigns, the popular opinions about the slavery have been that the owner must treat the slaves in brutal manner and exact labour in most inhumane ways. For example, a note on early day’s farm slaves in America [#4]:

"A cast mass of the slaves pass their lives, from the moment they are able to go afield in the picking season till they drop worn out in the grave, in incessant labour, in all sorts of weather, at all seasons of the year, without any other change or relaxation than is furnished by sickness, without the smallest hope of any improvement either in their condition, in their food, or in their clothing, which are of the plainest and coarsest kind, and indebted solely to the forbearance or good temper of the overseer for exception from terrible physical suffering..."

Contrary to this popular opinion, the slavery could still be found without any harsh and brutal treatment, as the literature on slavery indicates [#5]:

"Slavery may exist even without torture. Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint. We might eliminate all proof of ill-treatment, overlook the starvation, beatings, and other barbarous acts, but the admitted fact of slavery - compulsory uncompensated labour - would still remain . There is no such thing as benevolent slavery. Involuntary servitude, even if tempered by humane treatment, is still slavery."

(v) As noted in previous discussion [#6], the brutal and harsh treatments in exaction of labour accounts only as the 'indicators' of slavery. In actual view points of law, the slavery is the "exercise of any or all powers attaching to right of ownership" over a person (slave). This exact legal text has been found in 1926 Convention on Slavery as:

“Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership is exercised.”

In Australian Criminal Code, derived from the texts of 1926 Slavery Convention, reads:

"270.3 Slavery offences:
(1) A person who, whether within or outside Australia, intentionally:
(a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; "

(vi) The detailed instruction of how we can "read" the text of 1926 Slavery Convention can be found in [#7] by Jean Allain ( also can be found in many others of his writings). These discussions on the legal texts talked about the "exercise of powers" which attached to the "rights of ownership". One must start with the question of what are the rights of ownership in law. They are being listed as:

1) The right to posses;
2) The right to use;
3) The right to manage;
4) The right to the income of the thing;
5) The right to the capital;
6) The right to security;
7) The right or incidents of transmissibility;
8) The right or incidents of absence of the term;
9) The prohibition of harmful use;
10) Liability to execution; and
11) Incident of residuarity.

(vii) As this point, by reflecting the HCA judgment on Wei Tang (see Paragraph (ii) by Gleeson, CJ), we can now identify that the two words, "possession" and "use", are legally charged words. But how this comes about ? We’ve got to wonder, the judges did not mention the other "rights of ownership" that may be "exercised" by Wei Tang ? Say, for example: Wei Tang, as the owner of Club 417 brothel, isn't she entitled to manage these prostitutes came working under her. Again, shouldn't Wei Tang be entitled to some of the incomes, or the partial "right to the income” that has been generated by these sex workers?[#8] Did the judges also taken into account of the debt occurring financial arrangements, unfair and unethical in many ways, as well? The expected outcome from sex workers, such as to service six clients par day in six days a week; wouldn't that amount to severe exaction of labour in this case ?

Possession and brutal treatments?

(viii) Apparently, there are no such brutal treatments by Wei Tang as to forcing the sex workers to serve clients in the times of illness, for example. In the stead, the trial judge noted working condition for the sex workers as, "... lodged and fed, and their medical requirements attended to. The evidence was that the complainants (ed. sex workers) were well-provisioned, fed, and provided for. [Para 16, HCA #1] ". In fact, Wei Tang's legal defence had raised this question about the lack of evidence for the brutal treatments as:

"..the accused must have possessed the worker in the intentional exercise of what constitutes a power attaching to a right of ownership, namely, the power of possession. For that to be the case the accused must be shown to have regarded the worker as though she was mere property, a thing, thereby intending to deal with her not as a human being who had free will and a right to liberty, but as though she was mere property. However harsh or oppressive her conduct was towards the worker it would not be sufficient for a conviction if, rather than having possessed the worker with the knowledge, intention, or in the belief that she was dealing with her as though she was mere property, the accused possessed her in the knowledge or belief that she was exercising some different right or entitlement to do so, falling short of what would amount to ownership, such as that of an employer, contractor, or manager."

The power of possession

(ix) In paragraph above, Wei Tang's legal defence was raising a very fundamental question of slavery -- namely possession. The power of possession has been the foundation to slavery. Any other powers could only come after having the power of possession. For example, to use an item (i.e. exercise power to use), you must firstly own (possess) that item (i.e. power of possession). Both the terms 'exercise of power' and '(ownership) possession' are abstract concepts and direct proofs can be elusive at times. Nevertheless, the HCA ruled that [Para 144-145, Haynes J]"

"...that appear to present two questions: first, did the accused possess, or exercise some other power attaching to the right of ownership over, the complainant and second, was the complainant a slave? But the two questions merge. ..(Para 145).. It follows that proof of the intentional exercise of any of the relevant powers over a person suffices to establish both that the victim is a slave and that the accused has done what the legislation prohibits."

As regards any evidence on the rights of ownership, HCA ruled that [Para 141, Hayne J]:

"141. It follows that neither the definition of slavery in s 270.1, nor the references to "a slave" in s 270.3, invite attention to what legal rights the "owner" has over the person who it is alleged is "a slave". Rather, the references in s 270.3(1)(a) of the Code to possessing a slave, and exercising over a slave "any of the other powers attaching to the right of ownership", invite attention to what the alleged offender has done. In particular, what powers has the alleged offender exercised over the person who is alleged to be a slave? And what the alleged offender has done must then be measured against a factual construct: the powers that an owner would have over a person if, contrary to the fact, the law recognised the right to own another person."

Justice Hayne is emphasizing that in slavery laws, the focus has been on the actions of alleged offender (perpetrator) on the enslaved. The Court does not specifically need to find the evidence for perpetrator owning (possessing) of a slave. And any instance of 'exercising powers attaching to the right of ownership', such as 'exercise the right to use' or 'exercise the right to security', would be and should be sufficient for criminal conviction.

Slavery at Club 417 Downloads

As has been noted, in Justice Hayne's approach [#10], the slavery is to be understood from the viewpoints of victim whose freedom and liberty were severely deprived off, in the stead of focusing on the criminality of the accused. Remember, the legal tools presented above can be quite useful in an enslavement situation where there might be the difficulty to identify perpetrator(s), most possibly in cases of the slavery in de facto mode.

Powers Attaching to the Right of Ownership

(x) A good discussion about the types of 'powers attaching to the right of ownership' in slavery can be found in this Jean Allain's writing [#9]. Since human beings are not exactly objects, the term 'possession' here becomes broader than merely exerting physical control. The perpetrator must have aggregation of powers to control the enslaved, both physical and psychological. While the control tantamount to possession has been foundational to slavery, such control need not reveal to us that the enslaved were chained up nor be kept under lock and key.

The possession on a human person, by whichever means, can never be absolute of course. In this particular case, Wei Tang only needs to exercise just enough power of "possession" upon which the sex workers comply with her terms of contract. On the one hand, as discussed in above paragraph (ix), it is not necessary for the Court to find out whether Wei Tang had eventually exercised the power of possession, nor to speculate the source and nature of that power. Nevertheless, as a matter of completeness, we can look at this case of Wei Tang and her sex workers, in order to gain a bit further in understanding about this 'power of possession'.

This question of possession can be understood by examining the relationship between the perpetrator, who is at the position of powers (Wei Tang), and the victims (sex workers). To understand how Wei Tang getting this 'power of possession' over sex workers, we will now examine the backgrounds of their relationship.

Putting in their shoes

(xi) In most societies, prostitution has been forbidden and the sex workers are ostracised by general populace. Nonetheless, we must recognize humanity of the sex workers that they have their own values and aspirations. In Thailand though, there's reported to be less ostracization of prostitutes where some sex workers, as destitute and impoverished may they have been, looking after their families or elderly parents from such incomes. In any case, those Thai women who engaged in the prostitution are certain of being destitute but cannot be all "bad in moral characters". These women can be the bread winner for the household and, just like any other business persons, working for themselves and their families. And these sex workers are being able to make sound decisions to look after themselves.

In respect to Wei Tang and the trafficking syndicate, first thing to note is, for the destitute sex workers in Thailand, the AUD 20,000 is a very large sum of money. For those Thai sex workers, from the time they agreed to take part in the arrangement and have taken $20,000 from the syndicate, they may have already slipped into the inescapable debt bondage. The HCA court document does not exhaust as to how that $20,000 down payment was made. However, the significant percentage of it will have been given to the sex workers.

Even with such enticing amount of down payment, $20,000, these sex workers were unlikely to engage in such deals if it were negotiated in Thailand, with the nominated debt repayment for $45,000. The sex workers would rather return the down payment and surely quit the deal.

However, that situation had changed when they were trafficked into Australia. Once sex workers arrived in Sydney, they were naturally isolated from their normal support networks: in a strange country where they had no friends, had nowhere to go, did not speak English. Most importantly, these sex workers have insufficient funds to break their contracts by paying back to traffickers for expenses incurred in getting to Australia.

There can be threats and perceived threats, for not entering the deal. Of course, there are stories of death and disappearance in Australia of alien prostitutes, which would come into play as real or perceived threats. These sex workers are compelled to take the extortionate debt repayment deals.

On the one hand, these sex workers are capable of making their own decision and, under such circumstances, prepared themselves to "plumb through" the deal. There would, of course, be success stories of a kind that the sex worker making a breakthrough and making good money (Court document reveals that there are two sex workers that paid off all the debts and getting full amount for their prostitution). So therefore, in addition to social isolation, there will be persuasion and coercion that would have driven these sex workers entering into the deal.

From the time of the payment of $20,000 had been taken, these sex workers would be under perceived and real threat by criminal underworld where they were not able to break out from the deal. In fact, Wei Tang getting hold of the passports etc. would only have marginal effects in controlling these sex workers. The threat of immediate deportation from Australia can form significant controlling power. However, the 'fear of underworld' has the most important role played in controlling and enslaving these sex workers.

In this way, sex workers may have fallen into the victims of servitude and slavery, driven by Wei Tang and the syndicate.

ICTY Factor Indicia

(xii) The actions of trafficking syndicate and brothel owners, and the events in criminal underworld described above, are just random events that taking place in our human society. That criminal syndicate does not have the capacity to generate nor can control the environment surrounding these Thai sex workers. However, suppose and let us suppose :-), there has been a criminal syndicate that is powerful and sophisticated enough, targeting to 'enslave' that group of sex workers. How can we identify the criminal actions of such a trafficking syndicate? The syndicate's criminal actions can best be understood within the contexts of factors put forward by Prosecutors of ICTY:

"The Trial Chamber is therefore in general agreement with the factors put forward by the Prosecutor, to be taken into consideration in determining whether enslavement was committed. These are the control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour. The Prosecutor also submitted that the mere ability to buy, sell, trade or inherit a person or his or her labours or services could be a relevant factor. The Trial Chamber considers that the mere ability to do so is insufficient, such actions actually occurring could be a relevant factor."

As we all are aware, in the Kunarac cases, the Serb Commanders had randomly selected out some women for sexual or other enslaving purposes whilst carrying out ethnic cleansing of the town of Foca. As such there was no formal relationship of the kind -- e.g. like in the case of Wei Tang and sex workers -- between perpetrators and enslaved victims. Probably because of that, this ICTY approach on Kunarac case, i.e. identifying indicating factors, has contrasted to the case of Wei Tang, where the Australian Judges probe directly at the core of enslavement situation within the meaning of slavery laws.

A more succinct list of ICTY indicating factor for enslavement being put forward by HREOC can be found here [#11]. Some of those are: "(b) Some restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; (d) The psychological control or oppression of [an] individual; (h) ... the use of deception or false promises or the abuse of power in the context of the relationship ....; (i) The threat or use of force or other forms of coercion. .. etc.. etc"

• A factor of 'deception', i.e. lure of good money and making big break, which has been at play when making initial offer of $20,000 to the prostitutes;
• The factors of 'controlling environment' and 'assertion of exclusivity' come into play when these Thai sex workers were brought into (initially Sydney) Australia, making sex workers to isolate from their support networks;
• The factors of "threat of force and coercion" and "psychological control" were at play when persuading these sex workers to enter the debt deal of $45,000; and in controlling workers to comply with that deal for the duration of the debt.

(xii) We can now turn into counting of "powers attaching to the right of ownership" exercised by Wei Tang. Final finding on this "exercise of critical powers" has been given in HCA judgment:

"50. In this case, the critical powers the exercise of which was disclosed (or the exercise of which a jury reasonably might find disclosed) by the evidence were the power to make the complainants (ed. sex workers) an object of purchase, the capacity, for the duration of the contracts, to use the complainants and their labour in a substantially unrestricted manner, the power to control and restrict their movements, and the power to use their services without commensurate compensation. As to the last three powers, their extent, as well as their nature, was relevant. As to the first, it was capable of being regarded by a jury as the key to an understanding of the condition of the complainants. The evidence could be understood as showing that they had been bought and paid for, and that their commodification explained the conditions of control and exploitation under which they were living and working."

When itemised for clarity:

1. the power to make sex workers the object of purchase for the duration of contract: Wei Tang did 'purchase' these sex workers for $20,000 each. However, it can be argued, looking at that conduct in isolation, any employer and contract worker may also make such deal. Wei Tang has exercised that power; but the court did not count it as a crime.

2. the power to use sex workers and their labour substantially unrestricted: Wei Tang, as the brothel owner, did have the power and the right to manage sex workers, such as days and hours of work. Consequently, Wei Tang did have the power to use sex workers, substantially unrestricted manner, so as to get the nominated debt repaid. This fact, 'use of sex workers' cannot be disputed. There was the right to manage, but it is not being counted as a crime. There is harsh imposition of labour condition ( 900 customers in six months), this has been taken into account.

3. the power to control and restrict sex workers movement: Wei Tang has restricted sex workers' movement by taking their passports duration of the contract. Although this conduct, the keeping of passports, might be seen not unreasonable and only has marginal role in control. However, there have been the fear or retaliation by underworld and the fear of deportation by immigration, which in turn, Wei Tang used as her power to control the sex workers. Remember, the power to control means the power of possession. These powers to control are being substantial and that cannot be disputed.

4. the power to use sex workers' services without commensurate compensation: Wei Tang has controlled, utilising the threats of underworld retribution and immediate deportations, the sex workers and subjected them to work six days a week to repay the debt. The sex workers didn't have the choice on the terms of debt repayment. Wei Tang, therefore, is using the sex workers to get the nominated amount of debt. This fact, 'use of sex workers', cannot be disputed.

So therefore, in sum, Wei Tang has exercised the two of the powers attaching to right of ownership, 'possession' and 'use'. Her exercise of 'the power to use' on the sex workers, has been proven beyond any reasonable doubts.

As we can see in (2) and (4), the slavery law is not quite sensitive to the use of person for extraction of labour – at time can be harsh and unreasonable – or the use of person for making profits, as may be in the normal employment situations. However, the slavery law is invoked, i.e. the law is coming into effect, when the perpetrator hold a person under control tantamount to possession, and then "use" that person for making profit or to extracting services and labour.

The power of possession, which is foundational to slavery, has also been established here. The control tantamount to possession must be in place in order to exercise the other powers of ownership. In this case, the fears of retribution by underworld and immediate deportation have generated the substantial and enough power to control, which Wei Tang utilised as her power of control over sex workers.

When talking about the Slavery, we need to be reminded ourselves that we are living in the 21st Century. The enslavement becomes the criminal case of complexity, where the abuse of victim (exploitation) has been tempered and concealed by existing laws and customs. Wei Tang, for example, will use her powers of possession just to get her contract completed. It is unnecessary for Wei Tang to overtly exercising her powers of possession over sex workers, which may invite unwanted attentions; the question on evidences of which the defence lawyers had raised in (viii).

End of Report.

FOOTNOTES:
[#1] Queen vs Tang (2008), the High Court of Australia judgment on Austraian slavery case, available for download here. http://www.aus4iccwitness.org/legal-resources/20080826_the-queen-vs-tang-hca.pdf
[#2] "Novel" here to means strange, new and not resembling something formerly known or used.
[#3] All the judges, and albeit Appeal Court, are in agreement upon Wei Tang being guilty of the slavery offences. However, the Victorian Appeal Court had ordered a new trial on technical ground, which Justice Kerby of HCA agreed it should. With HCA majority judges upheld original verdicts of Wei Tang being guilty.
[#4] https://en.wikipedia.org/wiki/Treatment_of_slaves_in_the_United_States
[#5] NUERNBERG MILITARY TRIBUNAL, NOVEMBER 3, 1947. Case 4. The United States of America -vs- Oswald Pohl, ...
[#6] http://www.aus4iccwitness.org/node/65
[#7] Guest Lecture Series on the Office of the Prosecutor of ICC by Jean Allain (2007). http://www.aus4iccwitness.org/legal-resources/20070426_iccotp-lecture-on-slavery-by-jean-allain.pdf
[#8] For example, the $110 total income generated by a prostitute for each customers, less 10% going to the Government's GST, the $43 was to be given as rent to the Club owner (Wei Tang), the rest $67 have been divided between Wei Tang and the syndicate [para. 8,9,10 of HCA].]
[#9] Contemporary Slavery and its definition in Law by Jean Allain. http://www.aus4iccwitness.org/legal-resources/20160101_contemporary-slavery-and-definition-in-law.pdf
[#10] Methods for Identifying Slavery http://www.aus4iccwitness.org/node/66
[#11] Case Note on Queen vs. Tang by Jean Allain (2009)
http://www.aus4iccwitness.org/legal-resources/20090101_case-note-on-queen-vs-tang-by-jean-allain.pdf