Conceptualising domestic servitude as a violation of the human right to housing and reframing Australian policy responses

ABSTRACT

This article makes a twofold contribution to a human rights-centred response to domestic servitude as a modern form of slavery. First, it offers a conceptualisation of domestic servitude as a comprehensive and specific violation of the human right to housing, based on a reading of the right to housing as sitting at a crucial juncture of the public and private. Victims of domestic servitude experience a violation of the right to housing, the nature of which strikingly demonstrates both how housing sits at the nexus of the public and the private; and that the enjoyment of rights in both those spheres is crucial to a person’s experience of dignity, peace and security. This conceptualisation deepens our understanding of the right to housing, and the condition of domestic servitude as a violation of human rights. This article’s second aim is to demonstrate how the commitment to fulfilling the human right to housing underpins a better policy response to modern slavery in Australia. It opens a conversation on how a social rights-based response is one that would better serve victim/survivors, offering a more meaningful and targeted response to the harms they suffer.

KEYWORDS:

• Domestic servitude
• right to housing
• human rights
• public/private distinction
• modern slavery

Acknowledgements

This research was supported by a grant from Anti-Slavery Australia. I am grateful to Anaïs Tobalagba for superlative research assistance, to Rebekah Sternberg for referencing, and to Anti-Slavery Australia for the opportunity to pursue the research. Participants at an expert roundtable held at UTS Faculty of Law in September 2021 contributed much to the development of the argument, and I am grateful to the anonymous reviewers for their careful reading. The research and writing has taken place on the unceded lands of the Wadi-Wadi People of the Dharawal Nation, and the Gadigal People of the Eora Nation. I acknowledge and pay my respects to their elders, past, present and emerging. Two sections of this paper draw on (while extending in the context of domestic servitude) my earlier work. These are the section on ‘what is the right to housing and Australia's obligations for it' and ‘the public/private and the right to housing’.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Modern slavery is a contested term. See Vijeyarasa and Bello y Villarino (2002), p 38; Allain (2017); see Stead and Davies (2020) for a critical perspective on the characterisation of ‘modern slavery’ in Australia. I use the term as an umbrella under which to gather contemporary practices of slavery, servitude, forced labour and human trafficking recognised in Australian and international law.

2 See e.g. Davy (2016).

3 Universal Declaration of Human Rights 1948 (UDHR), Preamble; International Covenant on Civil and Political Rights 1966 (ICCPR), Preamble; International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966, Preamble.

4 International Labour Organisation Convention – Decent Work for Domestic Workers 2011, Article 1. See also Bhoola (2018), para 20.

5 Shahinian (2010), para 13.

6 ILO (2013a), pp 2–3.

7 ILO (2018), p 166.

8 ILO (2015a), p 3; ILO 2021, p 12.

9 ILO (2015b).

10 Shahinian (2010), para 12.

11 Mantouvalou (2013), p 2.

12 ILO (2021), p 6.

13 Mantouvalou (2013), p 3.

14 See ILO (2013b), p 51.

15 Shahinian (2010), para 18.

16 Mantouvalou describes this as the ‘legislative precariousness’ of domestic workers. See Mantouvalou (2013), part 2; Shahinian (2010), pp 12–22; Human Rights Watch (2005).

17 See R v Kovacs [2009] 2 Qd R 51 (Kovacs).

18 US Department of State (2009), p 18.

19 Slavery Convention 1926, Article 5.

20 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices of Slavery 1956.

21 ICCPR, Article 8:

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3.

(a) No one shall be required to perform forced or compulsory labour

… .

22 R v Tang (2008) 237 CLR 1 (High Court of Australia) (Tang).

23 Tang at [44] (per Gleeson CJ).

24 Tang at [44] (per Gleeson CJ).

25 Tang at [44] (per Gleeson CJ).

26 See Kovacs [2009].

27 Kovacs [2009] at 44.

28 Kovacs [2009] at 46. See also The Queen v Wei Tang [2006] VCC 637 (The Queen v Wei Tang).

29 See R v Pulini and Pulini [2019] QCA 258 (Pulini); Kovacs [2009] at 47–48. The court did not directly link the sexual abuse and violence in the Kovacs case to the ‘illusory’ nature of the victim’s freedom, but it would be highly relevant in my view.

30 The Queen v Wei Tang [2006] at 8. The High Court affirmed this broader approach in Tang.

31 ILO (2015a), p 3.

32 See Shahinian (2010), paras 43–46; ILO (2017), p 43.

33 See e.g. Pulini (2019).

34 Moore (2019), pp 16–17; Davy (2016), p 195; ILO (2017), pp 29-31, Berg (2016), Ch 8.

35 Shahinian (2010), para 47.

36 Shahinian (2010), paras 47–52.

37 Shahinian (2010), paras 62–82.

38 Stewart (2011). See also Bhoola (2018), paras 24–27.

39 Bhoola (2018), para 25. See also UNANIMA (2021), p 22.

40 Bhoola (2018), para 25. See also UNANIMA (2021), p 22.

41 Bhoola (2018), para 25. See also UNANIMA (2021), p 22.

42 Kovacs [2009] at 7.

43 Cth Director of Public Prosecutions v Kumuthini Kannan and Cth DPP and Kandasamy Kannan [2021] VSC 439 at 6 (Kannan). See also para 220 for further discussion of Ms N’s vulnerability.

44 Lyneham et al (2019), p 192. See also Larsen and Renshaw (2012).

45 Moore (2019), p 11.

46 Moore (2019), p 54.

47 Moore (2019), p 8.

48 Moore (2019), p 8.

49 Lyneham et al (2019), p 195.

50 ILO (2015b), p 78.

51 Moore (2019), Part 1 and p 18; Schloenhardt and Jolly (2010), p 692.

52 The relevant cases are: Kovacs [2009]; Kannan [2021]; Pulini [2019]; Masri v Nenny Santoso and anor [2004] NSWIRComm 108 (Masri v Santoso), and the case of McAleer (https://www.afp.gov.au/news-media/media-releases/sydney-couple-sentenced-forced-labour). It should be noted that while the facts in these cases evidence domestic servitude, they have been prosecuted under various of the Criminal Code’s slavery offences.

53 Kannan [2021] at para 102.

54 Kannan [2021] at para 102.

55 Kannan [2021] at para 223.

56 Kannan [2021] at para 230.

57 Kovacs [2009].

58 Kovacs [2009] at para 10.

59 Kovacs [2009] at 8–9.

60 Kovacs [2009] at 11.

61 Kovacs [2009] at 11–13.

62 Masri v Santoso [2004].

63 Masri v Santoso [2004] at para 29.

64 Masri v Santoso [2004] at para 29.

65 Masri v Santoso [2004] at para 34 and 42.

66 Masri v Santoso [2004] at para 41.

67 Masri v Santoso [2004] at para 43.

68 Masri v Santoso [2004] at para 38.

69 Masri v Santoso [2004] at para 38(g).

70 Lewis (2007).

71 UNANIMA (2021), p 28.

72 Universal Declaration of Human Rights 1948 (UDHR). The Right is also included in over 50 domestic constitutions, a number of which predate its inclusion in the UDHR: Oren et al (2014). For further analysis of the legal content and interpretation of the right to housing in international law and in key domestic jurisdictions, see Hohmann (2013), Part I.

73 Wilson (2020), p 184.

74 UN Committee on Economic, Social and Cultural Rights (CESCR) (1990), para 1. See further Sepúlveda-Carmona (2003).

75 CESCR (1990), para 10.

76 CESCR (1990), para 10.

77 CESCR (2016), paras 24–27.

78 Hohmann (2013), p 231.

79 Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7 (CC) at 17 (Sachs J).

80 Hohmann (2013), p 231.

81 Hohmann (2013), p 231.

82 Hohmann (2013), p 231.

83 Hohmann (2013), p 1.

84 Hohmann (2013), ch 6.

85 Semayne’s Case [1604] 5 Co. Rep 91 a 194 (KB) at 195 (Semayne’s Case).

86 See Chameli Singh and others v State of Uttar Pradesh and others (1996) 2 SCC 549 (Indian Supreme Court) pp 555–56. See also the arguments raised (unsuccessfully) before the Canadian courts in Victoria (City) v Adams (2009) BBCA 563 (British Columbia Court of Appeal) at para 55 that the effect of homelessness ‘was to exclude the homeless from both the benefits and the responsibilities of citizenship - in effect to render the homeless non-citizens’.

87 Hohmann (2013), p 165. I am mindful that to say that housing is the ‘key’ mediation between the public and the private, and in arguing for rights to and in both spheres, I risk re-inscribing this distinction in ways that do not move beyond the classed, gendered and racialized view of liberal legal rights. For this reason, we should be attuned to the possibilities of meaningful lives, and meaningful rights, beyond a world structured on the public private distinction.

88 See, e.g., Article 17 ICCPR which states that:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

and Article 8 ECHR, which protects:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Both Article 8 and 17 may provide important protection for those subjected to domestic servitude. However, it is relevant that both refer only to existing rights or interests in a home, and may offer only limited protection for those who do not already have a home. See Hohmann (2013), p 69. Moreover, Moreover, Article 17 and 8 are normally considered negative rights, whereas the right to housing entails positive obligations, particularly in cases (such as domestic servitude) where people are homeless. See further Hohmann (2013), p 35.

89 Gavison (1992), p 19.

90 See Harris et al (2014), p 367; See also Semayne’s Case [1604].

91 Berns (2003), p 119. Original emphasis. The inverse of this male freedom in the home, is, as Davies notes, that for women the home has ‘often been difficult, dangerous, or, at the very least, normatively and practically problematic. The home has been a primary site of oppression for many women and a place where inequality is reproduced’. Davies (2014), p 156.

92 See Lacey (1993), pp 94–96.

93 For example, Charlesworth et al (1991), p 626.

94 See Romany (1993), p 101.

95 Hochschild (2018), p 32.

96 Romany (1993), p 87.

97 Wright (2003), p 75.

98 US Department of State (2009), p 18.

99 Shahinian (2010), para 83.

100 Moore (2019), p 29.

101 Farha (1999), p 486.

102 In the context of the Covid 19 Pandemic, see Wood et al (2021).

103 On care chains and domestic work see Yates (2009) and Fudge (2012), pp 63–69.

104 See Hohmann (2013), p 158.

105 Porteous and Smith (2003), p 61.

106 MacKinnon (1989), p 70.

107 Hohmann (2013), p 159.

108 Moore (2019), p 52.

109 Moore (2019), p 53.

110 Powell (2020), pp 46–47.

111 Powell (2020), p 5, see also 26–28. See also UNANIMA (2021), p 2.

112 Powell (2020), p 28.

113 Salvos Safe House Staff (Personal communication), 26 July 2021.

114 Criminal Code (Slavery and Slavery-like Offences) Act 1995 (Cth); Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth); Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth); Foreign Passports (Law Enforcement and Security) Act 2005 (Cth); Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth); Proceeds of Crime Act 2002 (Cth); Fair Work Act 2009 (Cth); Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth).

115 Vijeyarasa (2019), p 861.

116 Modern Slavery Act 2018 (Cth). See also Modern Slavery Act 2018 (NSW).

117 See Christ and Burritt (2017), p 105.

118 National Action Plan to Combat Modern Slavery (2020) ‘vision’ p 18, ‘mission’ p 18.

119 See National Action Plan (2020) pp 20–21.

120 Simmons and Burn (2013), p 993; Burn and Simmons (2006), p 553; Richards and Lyneham (2014), p 4; Moore (2019) p 8; The Guardian, ‘Australia urgently needs a compensation scheme for victims of slavery-without it there can be no justice’, https://www.theguardian.com/commentisfree/2021/aug/06/australia-urgently-needs-a-compensation-scheme-for-victims-of-slavery-without-it-there-can-be-no-justice. In the UK context see Mantouvalou (2018).

121 National Roundtable on Human Trafficking and Slavery (2015), p 13.

122 On economic, social and cultural rights as a response to contemporary forms of slavery and servitude more broadly, see Rassam (2005).

123 Davy (2016), pp 194–95; Joint Standing Committee on Foreign Affairs, Defence and Trade (2017), part 7.18–7.30; Chazal and Raby (2021), p 44–45. In the EU and UK context, see Fudge and Strauss (2014).

124 Australian Red Cross (2019).

125 National Action Plan to Combat Modern Slavery (2020), p 13.

126 Australian Red Cross (2019); See also Social Security Guide, ‘Human Trafficking Visa Framework’, https://guides.dss.gov.au/guide-social-security-law/9/1/2/130 for access to the Program for people who do not have a valid visa, and National Roundtable on Human Trafficking and Slavery (2015), p 16.

127 See, e.g. Moore (2019); Chazal and Raby (2021), pp 45–46.

128 Richards and Lyneham (2014), p 4.

129 Moore (2019), pp 52–53; see also National Roundtable on Human Trafficking and Slavery (2015), p 13.

130 According to the National Action Plan to Combat Modern Slavery, the majority of victim/survivors helped by the Support Program between 2014 and 2019 were Australian citizens. National Action Plan (2020), p 15. This may not accurately reflect the nationalities of victims of slavery offences, and may align instead with the limitations of the programme and factors that constrain non-citizens from contacting authorities.

131 See Chazal and Raby (2021), pp 46–47.

132 A recent report found that even if the States (who have responsibility for social housing) were to meet their targets in creating new social housing, ‘they will have failed to meet the immediate housing needs of 100,000 families’ across Australia. Compass Housing Services (2021), p 3. In NSW, for example, the current expected waiting time for social housing in some areas tops 10 years for all property types, with a total of 46,087 applicants registered on the waiting list. See NSW Communities and Justice, ‘Expected Waiting Times’, https://www.facs.nsw.gov.au/housing/help/applying-assistance/expected-waiting-times. The figures are similar in Queensland, where the numbers on the waitlist have increased by 70% in three years. See Brisbane Times, ‘Social Housing Waiting List Could Fill a Town Larger than Gladstone’, https://www.brisbanetimes.com.au/politics/queensland/social-housing-waiting-list-could-fill-a-town-larger-than-gladstone-20210429-p57nd3.html.

133 Communities & Justice, ‘Social Housing Eligibility and Allocations Policy Supplement’, https://www.facs.nsw.gov.au/housing/policies/social-housing-eligibility-allocations-policy-supplement/chapters/urgent-housing-needs; Housing VIC, ‘Social Housing Eligibility’, https://www.housing.vic.gov.au/social-housing-eligibility#priority-categories.

134 See ANROWS (2021).

135 Compass Housing Services (2021), p 2.

136 See Rose (2021); see also Red Cross (2021), p 15.

137 For example, see: Victims of Crime, ‘Violent of Physical Crime’, https://www.victimsofcrime.vic.gov.au/the-crime/types-of-crime/violent-or-physical-crime; but see Victims of Crime, ‘Family Violence’, https://www.victimsofcrime.vic.gov.au/the-crime/types-of-crime/family-violence.

138 See NSW Government, Victims Services, NSW Victim Support Scheme, https://www.victimsservices.justice.nsw.gov.au/.

139 Red Cross (2021).

140 See Detective Sergeant Bevan Moroney, Head of AFP Human Trafficking Programme Melbourne, quoted in Lighthouse Foundation, ‘Young Women’s Freedom Program’, https://lighthousefoundation.org.au/young-women-s-freedom-program. See also Red Cross (2021), pp 7, 23.

141 CESCR (1991), para 7.

142 Red Cross (2021), p 20.

143 On housing affordability and the right to housing in Australia see Hohmann (2020); On welfare support more broadly, see Murphy et al (2011).

144 Vogl et al (2020) generally, and at p 2.

145 Bustamante (2010), paras 15, 16 and 60–61; Shahinian (2010), para 96; UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) (2011), para 21. See also Fudge and Strauss (2014), p 174.

146 See Moore (2019), p 53. See also Richards and Lyneham (2014).

147 The Salvos Safe house supports up to 10 women in the safe house, and up to 20 additional victim/survivors who are assisted but not housed in a safe house or residence. See Others, ‘Filling the Gaps for Victims of Human Trafficking’, https://others.org.au/features/filling-the-gaps-for-victims-of-human-trafficking/.

148 Solomon (2017), p 376.

149 See Parliament of Victoria (2021), pp xxii, xxxvi, Recommendation 34. For a discussion of the potential content and scope of such a right, see Hohmann (2022).

150 See a discussion of this point in Hohmann (2022), part V.

151 The National Action Plan to Combat Modern Slavery records that the majority of victim/survivors helped by the Support Program between 2014 and 2019 were Australian citizens. National Action Plan (2020), p 15.

Additional information

Funding

This research was supported by an internal grant from Anti-Slavery Australia, University of Technology Sydney Faculty of Law.

Notes on contributors

Jessie Hohmann

Jessie Hohmann, Associate Professor, University of Technology Sydney Faculty of Law.