Abstract
In early February 2012, a federal judge threw out a law suit brought by PETA claiming that whales were ‘enslaved’ by SeaWorld (Note 1). While it met a swift and sorry end, the law suit provides an opportunity for reflection upon what constitutes slavery in the modern context. We are familiar with the Roman “Spartacus” slave scenario and the classic American Civil War “Gone with the Wind” slavery scenario – but how comfortably do we connote modern exploitative labour situations, where individuals (human not animal), find themselves with no avenue of escape. The most commonly challenged modern slavery situations are those in brothels: to what extent do modern brothels in Australia cohere with our understandings of slavery? In a recent High Court decision, Justice Michael Kirby took a strongly different view from his fellow judges in that regard. And what are we to make of the PETA lawsuit claiming (unsuccessfully) that orcas in SeaWorld are enslaved to humans to do their unwilling bidding as entertainers? As a logical extension of that claim, ought we not view the doomed horses in the English Grand National as slaves? They also do their unwilling bidding as cash cows, many of them dying in agony as part of the very spectacle. Very many situations that potentially cohere with slavery today will not cohere with our traditional understandings and stereotypes let alone our modern and as yet not fully articulated understandings. This is a debate more familiar in the USA – yet while Australia has not had an entrenched system of human slavery, an emerging jurisprudence points to modern incarnations while also reinforcing arguments about the effective enslavement of many Aboriginal people during the period of assimilation: a period that gave rise to the ‘Stolen Generation’. The purpose of this article is to reflect upon this emerging jurisprudence and to suggest that while we are continuing to unlock new ideas about slavery in the modern context – both human and animal – but we are far from developing, historically, strategies for their abolition. The way forward, it is suggested, is to recognize as a first step in the human context, that exploitative modern labour situations may appear akin to slavery but need perhaps more appropriately to be dealt with as modern servitude; and as a second step that jurisprudential understandings of animal enslavement: exemplified by the orcas but also personified in events like the Grand National; may appear on the comparative legal agenda in future decades.
Highlights
Twenty-first century problems of human trafficking have antecedents in the transatlantic slave trade which began in the fifteenth century, driven by demand for labour in the ‘New World’
While it met a swift and sorry end, the law suit provides an opportunity for reflection upon what constitutes slavery in the modern context
The most commonly challenged modern slavery situations are those in brothels: to what extent do modern brothels in Australia cohere with our understandings of slavery? In a recent High Court decision, Justice Michael Kirby took a strongly different view from his fellow judges in that regard
Summary
Twenty-first century problems of human trafficking have antecedents in the transatlantic slave trade which began in the fifteenth century, driven by demand for labour in the ‘New World’. There is often an underpinning of hysteria about the debate, the current federal (Labor) government rhetoric speaks dispassionately about the need to ‘smash the people smugglers’ business model.’. This refers only to those who arrive to the country by boat. Upon reflection we consider the ways in which the dissenting view sought to steer understandings of slavery in the direction of the incarnation of international law and the diminishing of the status of slavery by its characterization as oppressive work practices in a contemporary environment in an advanced liberal democracy. We ask if those reflections can accommodate the nuances of a slavery narrative which shapes the narrative of Australian Aboriginal people as one of enslavement
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