.png)
1 month ago
19
Priyanka Danaratna was invisible in Australia.
Behind the closed doors of a house in Canberra’s leafy diplomatic quarter, she toiled as a domestic servant. She spoke no English, had her passport seized and could not leave the house without permission.
Danaratna worked in Australia for three years – seven days a week, on average 14 hours a day. Sometimes, she would start work at 5am and not finish until 1am the next day.
In those three years she had only two days off: she spent them in hospital after being badly burned with oil while working in the kitchen.
For her labour, the mother of two was paid the equivalent of 65 cents an hour.
“When I realised the wages that were usually paid in Australia, I felt foolish for coming for so little money,” she later told the federal court.
Danaratna painted a picture before the court of a quiet, relentless oppression. She told the court her employer was not impolite “and never made threats to me”, but “did not provide me with satisfactory clothing and food”.
“I did not feel like I was being treated properly.”
In August, Justice Elizabeth Raper ordered the diplomat who employed her – the former Sri Lanka deputy high commissioner to Australia, Himalee Arunatilaka – to pay Danaratna more than half a million dollars in unpaid wages and interest.
The judge found Danaratna was employed in a private capacity and her case attracted no diplomatic immunity.
But the diplomat, and the Sri Lankan government that still employs her, have refused to pay the money owed, or to accept the court’s verdict.
In a statement, Sri Lanka’s ministry of foreign affairs said it was “satisfied that the said salary was paid to the domestic assistant by the employer as mutually agreed”.
“The domestic assistant in question served a full three-year term and, on the eve of the employer’s originally intended departure from Australia, absconded from the residence of the employer,” the statement said.
Danaratna, still in Australia, has received none of the money the court found she is owed.
Arunatilaka’s career in Sri Lanka’s foreign service has been unaffected by the court ruling: she is now serving as her country’s permanent representative to the United Nations in Geneva.
She did not respond to a request for comment.
‘I felt like I was a prisoner’
Danaratna’s case is not unique.
Lawyers and campaigners say oppressive working conditions for domestic workers in diplomatic households have been known for many years. In 2015, the Salvation Army’s freedom partnership to end modern slavery told a Senate inquiry many suffered “horrendous abuse” and “absolutely humiliating, degrading treatment”.
Now government sources say private domestic staff are increasingly being brought into Australia on diplomatic visas, which makes monitoring their work conditions more difficult.
An earlier case, also before Raper, highlighted the visa question.
In 2015, domestic worker Seema Shergill came to Australia in the employ of the then Indian high commissioner, Navdeep Suri Singh.
“I worked seven days per week, from around 5am until 11.30pm each day,” Shergill said in an affidavit before the federal court. “I had one hour off each day from around 4pm until 5pm. I never had a day off in the time I worked in Australia, either as a holiday or a sick day.”
Shergill was only allowed outside the house to let the dog out. Otherwise, she spent her entire time inside the house in Red Hill, barely a kilometre from where Danaratna would later work.
“He did not pay me much for my long hours of work. His wife was very demanding. Whenever I asked for a break, she would say … that I should ‘stop complaining and continue your work’.
“Sometimes she would get angry with me and say things such as ‘I will send you back, where you won’t earn much money’.”
Shergill told the court she felt trapped.
“I did not feel that I could escape my situation. I believed that I would be in danger if I tried to leave. I believed that Mr Suri was the most powerful person from India in Australia.”
Shergill knew no one else in Canberra.
“Mr Suri had my passport, and I had no way to get myself back to India. I believed that I had no choice but to stay working for Mr Suri. I felt like I was his prisoner.”
The court heard that after a year, a high commission official presented Shergill with documents purporting to show she was being paid a salary, and instructed her to sign them.
“I refused each time because it did not record how much I was being paid. Mr Suri’s wife kept pushing me to sign the form, and got angrier with me. She told me that I would be sent back to India if I did not sign.
After refusing four days in a row, she fled, Shergill told the court.
“I did not take any belongings with me, and I left behind all of my clothes. I slept on the streets. I was too scared to go back to the residence. I was sure that Mr Suri would punish me for leaving.”
Shergill managed to make contact with the Salvation Army, who arranged for her to travel to Sydney. She is now an Australian citizen.
The federal court heard Shergill was paid less than $2,500 for all of her work in Australia – about $9 a day.
Raper ordered Suri to pay $189,000 in unpaid wages and interest to Shergill, as well as a $97,200 fine.
In her judgment, justice Raper said Shergill had been invisible in Australia, her “entire existence” spent “entrapped within domestic servitude”.
“These workers, by fear, the precarious nature of their employment arising from their visa status, their lack of language skills, complete isolation and their slave-like working conditions, are precluded from participating in our society and huddling under the cloak of our societal protections,” Raper said.
“Their invisibility breeds exploitation.”
after newsletter promotion
But Suri and the Indian government refused to take part in the court case, or pay the ordered amount.
Arindam Bagchi, a spokesperson for India’s Ministry of External Affairs, said the allegations against Suri were “false” and alleged Shergill had “wilfully deserted her post”.
“Her conduct and false representations give rise to suspicions that all this has been motivated by her desire to permanently stay in Australia, and in which she seems to have succeeded.”
He said Australian courts had no jurisdiction to hear cases for India-based staff of the high commission, and that Shergill’s case could only be settled in India. He said the Australian court’s “ex-parte judgment” ignored diplomatic immunity.
In response to questions from Guardian Australia, Suri said Shergill had held diplomatic status in Australia – marked by a white passport – and was employed, not privately, but by the government of India. He said she was “extremely well-treated … as a member of our extended family” and alleged that the court’s judgment that her working conditions were slave-like was “a patent lie”.
Suri said Shergill was an India-based employee “governed by Indian wage norms, just like all other staff at the mission”.
“Bringing India-based staff within the purview of local laws creates a bad precedent for diplomatic missions around the world.
“And as a thinking person who comes from a value system of equity and justice, I believe that to accept the kind of grossly unjust and false judgment given by the court would be a violation of everything that I stand for.”
‘Insufficient scrutiny’
Private domestic staff generally enter Australia on a 403 diplomatic visa for domestic workers.
But government sources have told the Guardian a number of countries are routinely presenting domestic staff hired to work in the private homes of senior officials as diplomats, obscuring them from government oversight and protections.
Statistics from the Department of Home Affairs show the number of 403 domestic worker visas granted fell dramatically during the pandemic and has not yet returned to previous levels. Almost 600 visas were granted over the past decade: the most in 2015-16.
What help is available and what can be done to protect domestic workers?
ShowPreviously, for an exploited worker to access the Australian government-funded Support for Trafficked People Program they had to be referred by a law enforcement agency (usually police). But from July, the social services department has funded the Additional Referral Pathway, led by the Salvation Army, which allows exploited workers to access help without going to police first.
Claudia Cummins, the Salvation Army's modern slavery lead, says “de-coupling” assistance for exploited workers from police reporting will lead to more people being identified and supported.
“We often find that once a person has accessed support, feels safe and understands their rights, they may then choose to engage with police about their experiences,” she said.
The Additional Referral Pathway is a national program and can be contacted by phone for free on 1800 000 277, with interpreters available, or via the website.
But advocates say more needs to be done.
Human trafficking expert and doctoral candidate in law at RMIT, Heather Moore, wrote a report in 2019, Service or Servitude, detailing consistent exploitation of diplomatic domestic staff that was going “undetected or unacknowledged by authorities”. She argues the system needs to be reformed to reduce the isolation faced by domestic workers, "the most isolated workers in the country".
“I’d like to see more frequent welfare checks, and ongoing engagement with community organisations,” she said. “You can’t underestimate the importance of having that personal connection for people who have no other reference point for Australian society.”
Domestic workers are often accompanied by their employer to their annual meeting with officials from the Department of Foreign Affairs and Trade, where they might feel unwilling to speak up near or in the presence of the person who brought them into the country, Moore says.
She says in cases where Australian courts have found workers have been exploited and are owed money, the government could put a ban on any further applications for domestic worker visas from the offending country until the matter – including the money owed – is settled.
Moore also argues diplomatic domestic workers should be allowed to apply for the recently introduced workplace justice visa – from which they are currently specifically excluded. These reforms would diversify the pathways out of exploitation so the onus is not on the worker to “assume enormous risk to rescue themselves”, she said.
David Hillard, pro bono partner at Clayton Utz, which has run successful cases before the federal court on behalf of exploited diplomatic domestic workers, says the onus to protect and properly pay domestic staff should be a condition of a diplomat’s visa and right to work in Australia.
“If these visas are to continue, then it is essential that before a visa is ever issued, there is confirmation that the employment contract has been translated, understood and agreed by the domestic worker,” he said.
He believes it should be a requirement that all wages are paid into an Australian bank account, in the domestic worker’s name and under their control.
Shergill held a 995 visa, a category reserved for diplomatic staff, and for which domestic workers are not eligible.
Anti-slavery advocates argue the visa regime is being consistently breached, even for those on domestic worker visas.
One of the conditions for domestic staff working in the homes of diplomats is that they must “have an employment contract that meets Australia’s workplace laws”. They must also be allowed to leave their place of work, have possession of their passport and be paid in money (not food or clothing) that is accounted for through payslips.
The Guardian has sighted, among the official court files, the employment documents signed by Danaratna – and her high commission employer – stating she would be paid in accordance with Australian laws.
In her judgment, Raper wrote “it would have been clear” to Australian authorities granting Danaratna’s visa that she was not going to be lawfully employed, but that there was “insufficient scrutiny” of her proposed working arrangement.
“It is perplexing that the department, in the circumstances, did nothing and granted the visa.”
Dfat did not respond to a series of questions from the Guardian.
Vulnerable and isolated workers
David Hillard is pro bono partner at Clayton Utz, which represented both Danaratna and Shergill before the federal court.
He told the Guardian a confluence of factors mean such cases can go undetected: workers with little English or understanding of their rights in Australia; a dramatic power imbalance between employer and employee; and the arcane nature of embassies and diplomatic properties.
“It is difficult to imagine more vulnerable and isolated workers, and it is probably inevitable that they end up trapped in slave-like working conditions.
“It is hard to conceive of someone in 21st century Australia literally being trapped in a job and earning 65 cents an hour. How do we describe this as anything other than slavery?”
Hillard said the two cases came to public knowledge only because of the courage of the women involved to escape the homes in which they worked.
“Otherwise, we would be none the wiser as to the slavery that took place behind the locked gates of some of Canberra’s diplomatic residences.
“Personally, I do not think that we should put foreign workers [at] the risk of exploitation that exists under these visas … Why should anyone need to keep a person trapped in their home as a servant, in order to survive life in Canberra?”
Claudia Cummins, the Salvation Army’s modern slavery lead, said the organisation had helped at least a dozen domestic workers who had escaped forced labour within diplomatic residences.
She said the systems designed to protect those workers often failed because they were not understood by workers, or simply can’t be accessed: people can’t leave their employers’ homes, or they don’t know who they can call.
“Migrant domestic workers experiencing modern slavery may fear or distrust authorities due to their experiences in their country of origin … and the fear that coming forward … may lead to deportation or retaliation against them or their family at home.
Danaratna remembers that feeling of being trapped. “I did not believe that I had any options to leave,” she wrote in an affidavit to the court.
When she finally found someone she could tell – the Salvation Army – it was, she said, “the first time I realised that I could get help”.
