This article appeared in the Weekend Australian May 17-18 2008 p26

Melbourne brothel Club 417 - editorial photo

Raided: The
brothel Club 417
was embroiled in
a sex slave
scandal in 2003

Sex slavery on high

A well-publicised case bearing on exploitative prostitution in Australia has reached the dry confines
of the nation's High Court, report Elisabeth Wynhausen and Natalie O'Brien

The five women subsequently looped together as the complainants were working in club 417, a brothel in the Melbourne suburb of Fitzroy that was raided in 2003.

The women, then aged between 25 and 35, had been recruited in Thailand to work in the sex industry in Australia. In doing so, they incurred a so-called debt of up to $45,000, Including $20,000 owed to the recruiters who had sold them to the traffickers. This debt had to be worked off, by having sex with up to 900 customers.

This week the Case that started with the 2003 raid reached the High Court. The two days of head-spinning legal arguments before the full bench of the High Court seemed very far removed from the realities of life for a so-called contract girl, having sex with eight more customers a day, six days a week, in a dingy brothel with boarded-up windows.

Before the seven judges even enter the imposing wood-panelled chamber, the seven associates stand to attention, gripping the arms of their chairs: chairs in which justices Bill Gummow and Ken Hayne will intermittently recline, as close to horizontal as you can be without being in bed. It does not inhibit their rarified deliberations.

"We are in a realm of discourse where the rights of ownership in question are the antithesis of rights that are legally enforceable," says Hayne, a lanky, angular man with a long, mobile face.

Behind the realm of discourse are uncomfortable truths, such as the fact that of the $110 charged each time one of the trafficked women had sex with a customer, $67 was paid to their owners, $43 went to the brothel and a nominal $50 was deducted from the debt; a debt one or two eminent High Court judges call a fiction, not because it doesn't exist but because it doesn't exist in law. In 2006 in the County Court of Victoria, Wei Tang, the former owner of Club 417, was convicted under section 270.3 (1A) - the slavery provisions of the Commonwealth Criminal Code – of owning and using five slaves, and sentenced to 10 years in prison.

The case was the first successful prosecution of sex-slave traders under the federal anti-trafficking laws that had been on the books since 1999.

But in 2007, former Justice Geoffrey Eames of the Court of Appeal in Victoria quashed the conviction on the grounds that the trial judge did not adequately directed the jury about the fault elements of the offence.

The Crown successfully sought to leave to appeal.

The proceedings in the High Court are interspersed with the abstruse arguments about degrees of intent because Eames said that to contravene section 270.3 (1A) "the accused must have knowingly treated the person as though he or she was the accused's property … only when that state of mind exists is the exercise of power referable to a right of ownership as the section requires".

Wendy Abraham QC, the counsel for the Commonwealth Director of Public Prosecutions, says the crown submission is that the accused doesn't have to have considered, "Is this an offence slavery I am committing?"

"What you need to intend to do is undertake the conduct which creates that condition," Abraham says. The law as Eames interpreted it shortly before his retirement is that the prosecutor has to prove why someone has enslaved a person, making it difficult to effectively prosecute slavery offences.

Nina Vallins, a co-ordinator of the anti-trafficking organisation Project Respect, says the case is the most important test of the criminal laws against slavery to come before the courts in Australia.

The formidable performances almost seem to obscure the facts of the case.

"While I was listening to the arguments, I was thinking: "This is a long way from a dingy room in a Fitzroy brothel you can't get away from,' " Says Kathleen Maltzahn, the founding director of Project Respect. "These women were guarded day and night and forced to have sex with hundreds of men however rough or repulsive they were."

The money they had been handed in order to get past Immigration on the way into the country was taken from them and locked away with their passports as soon as they arrived.

In court, Abraham argues that whether or not they were locked in, they had no freedom to move at will, even between the brothel and the house where they lived around the corner, under the eye of one of Wei's supervisors. "Being driven home is not all that odd," justice Michael Kirby remarks after Abraham explains that the complainants were so closely guarded that they were driven to the house around the corner when they finished work at the brothel. Such observations are interspersed with legal arguments about the evolving meanings of slavery.

The distinction is critical, of course. You cannot get 25 years in prison, the maximum sentence for slavery under Australian law, for exploiting workers, however harsh and oppressive the conditions, Kirby says, a little complacently adding that when he was an articled clerk there were many aspects of the position "very similar to slavery: long hours, lack of food and various forms of oppression. But no one would have said it was slavery."

If he weren't a High Court judge one might wonder if he was trivialising the subject rather than examining it from all sides. Chief justice Murray Gleeson picks up another angle. "If the respondent had been legally entitled to do what she was doing to these women, would they have been her slaves . . . 100 years ago, would the complainants have been her slaves?"

In quashing Wei's conviction last year, Eames said that under the statute "to be a slave the person must be in a state where he or she is dealt with by others as though he or she was mere property".

Justices Susan Crennan and Susan Kiefel, the two most recently appointed to the High Court, cut straight to what one might have imagined to be part of that question: that four out of five of the women were bought and paid for.

Crennan asked who received the purchase price of $20,000.

Under questioning from Kiefel, Neil Young QC, the counsel for Wei, agrees that his client paid money to a broker for those four. "And does that convert them to a commodity?" Kiefel asks.

Soon after, Hayne asks Young if the debt was "anything more than an arbitrary sum to ensure the provision of services by these women for – what was it? – 600 or 700 men". The judge asks his question almost at the moment a troop of primary school children march into court for their glimpse of Australian law. Fortunately, they are not focused on the matter at hand; they are too busy trying not to stare at the representative from the Scarlet Alliance, the Australian Sex Workers Association: a woman with an aquiline nose and hair dyed emerald green.

Suddenly, Hayne seems to recall the number of men the women had to "provide services" for before they earned any money for themselves. "Nine hundred!" he says, with a barely perceptible shake of his head.

A decision is expected before the chief justice retires in August.

The High Court must seem very far removed from
the realities of life for a so-called contract girl

However, the Queen v Wei Tang could have far wider implications. With the High Court looking for the first time at the operation of the criminal code's provisions around intent, commonwealth Solicitor-General David Bennett QC successfully sought leave to intervene, as did the Human Rights and Equal Opportunity Commission.

A faint but unmistakable air of showmanship pervades the resulting proceedings. The plummy-voiced beetle-browed Mr Solicitor, as Bennett is called, doesn't just look and sound like a character out of Rumpole, he actually resembles John Mortimer. Now and then an observer new to the High Court may wonder if the judges and these learned friends are playing a game called "Who's got the best treaty, then?"

While Hayne quotes "the Official Journal of the League of Nations reporting on the 92nd Session of the council of the league for July 1936", Brett Walker SC, the counsel for HREOC, quotes a book by a certain Monsieur Allain. Holding up the work in question, he says: "I understand I have the only copy in the country."

The HREOC submission argues that this country's international treaty obligations to prohibit all forms of slavery "extends beyond prohibiting chattel slavery to proscribing contemporary forms of slavery that involve the exercise of 'any or all of the powers attaching to the right of ownership' ".

Many of the other legal arguments take it for granted that the sort of slavery that existed in the antebellum American south does not exist in this day and age, not least because it was outlawed in the 1926 convention on slavery on which the Australian statute draws.

In his 2007 book Ending Slavery, Kevin Bales, and leading scholar on the subject, quotes a US State Department estimate it says 17,500 slaves are brought to the US each year and forced to work in agriculture, prostitution, domestic services and sweatshops.

Bales also reports there are 27 million slaves in the world, about twice the number taken from Africa in the years of the Atlantic slave trade. "These are not poorly paid migrant workers; these people are slaves," he writes.