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Prison time for perpetrators but justice eludes victim of modern slavery in Australia

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Last month, a man and a woman were sentenced to between six and eight years in jail for intentionally possessing and exercising the right of ownership over a slave between 2007 and 2015 in Mount Waverley, Victoria. After arriving in Australia from the Tamil Nadu province in India on a 30-day tourist visa, the woman’s passport was taken from her and she was forced to cook, clean and care for the couple’s three children on an average $3 per day. 

Main image: A general view of the Supreme Court (Darrian Traynor / Getty Images)

During her enslavement, the woman was beaten, hit with a frozen chicken, cut, had boiling water poured on her and allowed an hour’s rest every night. Upon finding the victim on the bathroom floor lying in urine in 2015, one of the perpetrators took her children to a school concert before returning and calling paramedics. The victim weighed 40kg, had no teeth, was suffering from diabetes and septicaemia, and spent two months in hospital.

While news reports last week extoled the sentence and judgment of the Victorian Supreme Court, there was little media attention given to what happens next for the victim.

And that is because nothing is likely to happen next for the victim.

Yet again we have seen the successful prosecution of perpetrators of modern slavery, and a victim left with nothing but a future in aged care in Melbourne with a catheter, diabetes and the memory of her treatment as a slave for 8 years.

There is no national compensation scheme available to victims of modern slavery in Australia. Each state and territory within Australia operate their own victims of crime ‘financial assistance’ scheme. These schemes award money to eligible victims of crime who have injuries caused by acts of violence that have occurred within the relevant state or territory, and can be linked to a relevant state or territory law. 

One objective of such schemes, as specified in the Victorian legislation, is to provide assistance ‘as a symbolic expression by the State of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime’.

As modern slavery matters are prosecuted under commonwealth laws rather than state or territory laws, there is no customised scheme available and no easy fit for victims. 

Our courts may try to ensure that the punishment fits the crime but there is nothing to ensure that the compensation fits the crime.

 

‘If we are serious about wanting to identify the risks of modern slavery in order to help victims and ensure no one is subject to slavery in supply chains, why is there still no national scheme to ensure victims are compensated and cared for once identified?’

 

What is required is legal gymnastics to adapt the experiences of the victim to existing state and territory offences. For example, in this case, an application for victims of crime assistance in Victoria will need to be argued on the basis of existing offences against the person under the Victorian Crimes Act, such as physical assault, conduct endangering life or persons, or intentionally or recklessly causing serious injury.

The result is that the victim may receive financial assistance and recognition for crimes that are outside their actual experience, and underestimate and undervalue their experience and their trauma. 

Some of these difficulties are hinted at in the reporting of this case, which noted that the legal team of the accused allegedly told the court during a pre-sentence hearing that the victim’s physical abuse could not be conclusively proven (alongside the breathtaking assertion that slavery was not involved as the woman was never ‘shackled’).

In 2017, the Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade recommended establishing a modern slavery National Compensation Scheme in their report, Hidden in Plain Sight. There is precedent for such a scheme in the National Redress Scheme for those who experienced institutionalised child sexual abuse, the Defence Reparation Scheme for those who suffered serious abuse within the Australian Defence Force, and the Australian Victim of Terrorism Overseas Payment Scheme. A modern slavery National Compensation Scheme has been endorsed by the Law Council of Australia, Monash University, the Freedom Partnership and the Australian Lawyers Alliance and more.

There is widespread awareness, momentum and support for addressing the issue of modern slavery now our commonwealth Modern Slavery Act is operating. If we are serious about wanting to identify the risks of modern slavery in order to help victims and ensure no one is subject to slavery in supply chains, why is there still no national scheme to ensure victims are compensated and cared for once identified?

After years of playing their crucial role in helping prosecute perpetrators, victims are left with trauma, poverty, ill-health and no meaningful way to address the underlying root causes that led to the crimes against them. As we are encouraged to let ‘Victims’ Voices Lead the Way’ on this year’s UN World Day Against Trafficking in Persons, let’s hear and learn from our victims of modern slavery in Australia and establish a National Compensation Scheme to try to ensure some form of justice.

 

Rebecca Dominguez is the Principal Solicitor at the Western Sydney University Justice Clinic within the School of Law, and specialises in human rights and access to justice work.  She currently sits on a Modern Slavery Advisory Board and the Commonwealth Government’s Forced Marriage Protection Order Consultation Group.

 

Main image: A general view of the Supreme Court (Darrian Traynor / Getty Images)

Topic tags: Rebecca Dominguez, modern slavery, Supreme Court, human trafficking, national compensation, commonwealth

 

 

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Existing comments

Thought provoking... Australia is in the quirky situation of legislation of a minimum wage for indentured (temporary migrant) farm labour of $21 per hour of work but currently Federally provides $35 per hour to employees not to work if they've lost 20 hours. This low farm rate "works" according to Nationals party because the home economic circumstances of the visa workers mostly is much lower than what they can earn here. Ummm... that sounds a bit like blackbirding to me; even Benjamin Boyd didn't make slaves pay for their own visa to work. I suggest the redress schemes for child and veterans are somewhat different to what's appropriate for underpaid workers; these schemes include an amount for damages related to trauma whereas the underpayment seems to be a wages case, not too dissimilar to those successfully pursued by Fair Work against (say) 7-eleven, amongst others. Surely there is the avenue for this woman seeking 8 years minimum wage redress and amounts for worker's compensation for injury; I don't doubt the lawyers will be tripping over each other so she'll be adequately provided for (less expenses).


ray | 03 August 2021  

How annoying! You spend all those years in academia honing a quasi-religion called critical race theory only to find that reality has stubbornly made domestic servitude a phenomenon widespread outside the West (Singapore and the Middle East being two such places) and where found within the West, practised by people from outside the West. Citizenship and a Centrelink pension with health card should be given to the victim, given the discrepancy in the quality of aged care between here and her home country.


roy chen yee | 04 August 2021  

Can she not sue the couple for unpaid wages? Eight years' salary would provided at the least some assistance. But yes, a compensation scheme is an obvious step.


Erik Hoekstra | 04 August 2021  

Thank you Rebecca for this article about a very important social issue. We all like to think that slavery is something that died in the early 19th century. However, the Global Justice Centre of the Regency University in Virginia (US) reports that global estimates indicate that there are as many as forty million people living in various forms of exploitation known as modern slavery. This includes victims of forced labor, debt bondage, domestic servitude, human trafficking, child labor, forced marriage, and descent-based slavery.

The worst nations are India (18.4 million), China (3.4 million), Pakistan (2.1 million), Bangladesh (1.5 million)
Uzbekistan (1.2 million) and North Korea (1.1 million).

Many Australians who believe in social justice and fair wages for a fair day's work would be scandalised to learn that slavery exists in Australia. Australians like former PM John Howard who hates the black armband approach to Australia's history do not want us to know that slavery existed during the early days of the European colonisation - eg convicts, Pacific Islanders and Australian Aborigines. Many Australian Aborigines were denied full wages until the 1970s.

However, it is concerning that according to the Global Slavery Index, there were approximately 15,000 people living in illegal "conditions of modern slavery" in Australia in 2016.

Rebecca, is totally correct to call for a body to help the victims of modern slavery to ensure that they obtain compensation as well as justice.

While much wage theft may not be considered as slavery, the very dire forms are. It was good to see that the Retail and Fast Foods Workers Union has won billions for workers employed by Coles, Woolworths Baker's Delight and many US fast food groups (eg Domino Pizzas, McDonalds etc.) for wage theft of a huge numbers of workers.

This is another reason why Australians who care about fairness and freedom must demand that we establishment of an Australian charter of human rights .


Andrew (Andy) Alcock | 04 August 2021  

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