Understanding slavery

What is slavery?

Slavery means that one person, in effect, owns another. What does it mean, to be a slave owner or to be owned? Loss of freedom involves a change of state that goes beyond every day violence, abuse and exploitation. Being treated as if owned is what makes slavery a serious domestic and international crime (and in some settings a crime against humanity). Perhaps 27 million people are enslaved in the world today: Men, women, children, whole families can be enslaved.

Systems of slavery

Some slaves are moved around the world. Others are enslaved close to where they were born, trapped by systems of slavery that have allowed child trading, debt bondage, forced labour, forced marriage and serfdom to persist for generations. Four ‘engines’ have enabled these ancient slave-making systems:

Poverty +
Powerlessness +
Crime/Corruption +
Conflict

= four engines than enable slave making systems to persist. In a global market, Australia is exposed to slavery. Sometimes Australians become involved in slavery through trade, tourism, crime or ‘cultural practices’.

Australia has a strict definition of slavery: The leading judgment for R v Wei Tang (2008) 237 CLR 1, Para 32, noted: ‘It is important not to debase the currency of language, or to banalise crimes against humanity, by giving slavery a meaning that extends beyond the limits set by the text, context, and purpose of the 1926 Slavery Convention. In particular it is important to recognise that harsh and exploitative conditions of labour do not of themselves amount to slavery.’

Understanding slavery

Slavery in Australian law

Slavery is defined in international law (the Supplementary Convention 1956). Slavery is also defined in Australian law (Section 270 of the Criminal Code (Cth)). In each place, slavery is defined in terms of ownership. Slavery does harm in today’s communities; and Slavery Links seeks ways to address that.

Tang’s Case (R v Wei Tang (2008) 237 CLR 1) was a landmark in Australia, when the High Court settled Australian jurisprudence on slavery. The Court had regard to the international Conventions, to Australian law in the Criminal Code (see below) and also to the International Criminal Tribunal for the former Yugoslavia (ICTY) that had tried the crimes of slavery in war that had taken place during that conflict. The High Court followed the ICTY in applying eleven tests (or indicators, indicia in Latin) for the extreme forms of over-control that occur in slavery. These tests, or indicia, were:

control of movement,
control of physical environment,
psychological control,
measures taken to prevent or deter escape,
force,
threat of force or coercion,
duration [i.e. durance],
assertion of exclusivity,
subjection to cruel treatment and abuse,
control of sexuality and
forced labour.

Obvious forms of control (such as chains) might not be used by a slave owner. These tests recognise that slavery can occur in obscure ways. Nevertheless obscure forms of control can become so extreme that a person is treated as if owned.

Why Tang’s Case is important for anti-slavery policy in Australia

In Tang’s Case (R v Wei Tang (2008) 237 CLR 1), people who were free persons came to Australia and were enslaved in this country by people who lived in Australia. They were enslaved in full view of other Australians who did not recognise what was happening and who did nothing to assist. Tang’s Case illustrates why community education is vital. Slavery Links’ broadcasts, workshops and exhibitions have been important contributions to community education.

The Hierarchy of Slavery Offences in Australian law

Australian law on slavery appears in Division 270 of the Criminal Code Act, 1995. Division 270 creates slavery offences, from debt bondage and deceptive recruiting at the least serious end, through forced labour to servitude and slavery at the most serious end. Slavery Links has illustrated how these offences form a ‘hierarchy’ in the chart at right. Division 270 also creates an offence of forced marriage.

What is so-called ‘modern slavery’?

The Commonwealth Modern Slavery Act 2018 asks large entities to investigate if three human rights abuses are present in the entity’s supply chain, and to report on this. The three human rights abuses are:

Slavery
Human trafficking
The worst forms of child labour

It is not clear why the definition of ‘modern slavery’ is different from the definition of slavery in the Criminal Code and in international law. There is an obvious possibility of confusion. The Modern Slavery Act 2018 is due for a review after three years of operation. In Submissions to Parliament [HERE and HERE] Slavery Links sought to have the definitions reconciled with international law. Slavery Links also sought the appointment of an anti-slavery Commissioner, a statutory officer, who could take an independent role in monitoring and education. Slavery Links also recommended that there be penalties for non-compliance. The Senate Inquiry recommended these (and other) changes to the Bill. Regrettably the Morrison government did not accept the Senate recommendations for a Commissioner and for penalties.

What is slavery?

Systems of slavery

Slavery in Australian law

Why Tang’s Case is important for anti-slavery policy in Australia

The Hierarchy of Slavery Offences in Australian law

What is so-called ‘modern slavery’?

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