R v Tang

• Jurisdiction: Australia Federal only
• Court: High Court
• Judgment Date: 28 August 2008
• Date: 28 August 2008

([2008] HCA 39)

Australia, High Court

(Gleeson CJ; Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ)

R

and

Tang1

International criminal law — Offences against humanity — International Convention to Suppress the Slave Trade and Slavery, 1926 — Slavery — Definition — Definition of slavery in Australian Criminal Code (Cth) deriving from definition in Article 1 of Convention — Whether respondent possessing and using complainants as slaves — Whether proof of intention required — Sections 270.1 and 270.3(1)(a) of Code — Meaning and constitutional validity — Convictions in Australia of slavery offences contrary to Section 270.3(1)(a) of Code — Provisions in Chapter 8 of Code dealing with offences against humanity

Relationship of international law and municipal law — Treaties — Effect in municipal law — International Convention to Suppress the Slave Trade and Slavery, 1926 — Sections 270.1 and 270.3(1)(a) of Australian Criminal Code (Cth) — Construction and application of Code — Relevant provisions introducing into Australian municipal law offences deriving from 1926 Slavery Convention — Constitutional validity of Sections 270.1 and 270.3(1)(a) of Code — The law of Australia

Summary: The facts:—The complainants, five Thai women, had voluntarily come to Australia to work as prostitutes, having previously worked in the sex industry. They were treated as ‘owned’ by those syndicate recruiters who had procured their passage to Australia and became ‘contract workers’ for the respondent, Ms Tang, the owner of a licensed brothel. While there was no written contract, each complainant was to work in the brothel for six days per week without earnings, being allowed to keep the $50 per customer on the

seventh ‘free’ day each week to offset the contract debts incurred during the rest of the week.

The County Court of Victoria convicted the respondent of five offences of intentionally possessing a slave and five offences of intentionally exercising over a slave a power attaching to the right of ownership, namely the power to use, contrary to Section 270.3(1)(a) of the Criminal Code (Cth) (‘the Code’),2 and sentenced her to a lengthy term of imprisonment.

The Court of Appeal of the Supreme Court of Victoria upheld an appeal, quashed the convictions and ordered a new trial. It held that Sections 270.1 and 270.3(1)(a) of the Code were within the legislative power of the Commonwealth. It also found that the offences created by Section 270.3(1)(a) extended to this alleged behaviour and were not confined to situations akin to ‘chattel slavery’ or in which the complainant was notionally owned by the accused or another at the relevant time. The prosecution, by special leave, appealed.

Held:—The appeal was allowed. The respondent's convictions were restored.3

Per Gleeson CJ (with whom Gummow, Hayne, Heydon, Crennan and Kiefel JJ agreed): (1) Sections 270.1 and 270.3(1)(a) of the Code were within the Commonwealth's legislative power. The offences created by Section 270.3(1)(a) extended to the behaviour alleged and were not confined to situations akin to ‘chattel slavery’ or in which the complainant was notionally owned by the accused or another at the relevant time (paras. 19–20).

(2) The word ‘slave’, which was not defined in Section 270.3(1)(a), took its meaning from the definition of ‘slavery’ in Section 270.1. That definition was derived from Article 1 of the 1926 Slavery Convention,4 which was taken up in

Article 7 of the 1956 Supplementary Convention.5 The relevant provisions of Div. 270 were reasonably capable of being considered appropriate and adapted to give effect to Australia's obligations under the Convention (paras. 21–34).

(3) It was important not to trivialize crimes against humanity by giving slavery a meaning that extended beyond the limits set by the text, context and purpose of the 1926 Slavery Convention. Harsh and exploitative labour conditions did not of themselves amount to slavery; some factors, such as control of movement and of physical environment, involved questions of degree (para. 32).

(4) The factors accepted by the Trial and Appeals Chambers of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Kunarac were relevant to the application of Section 270.3(1)(a) of the Code.6 Consent was not inconsistent with slavery. For the purpose of Section 270.3(1)(a), the commoditization of an individual by treating him or her as an object of sale and purchase, if it existed, was a material factor when a tribunal of fact assessed the circumstances of a case, and might involve the exercise of a power attaching to a right of ownership (paras. 28–35).

(5) There was cogent evidence of the intentional exercise of powers of such a nature and extent that they could reasonably be regarded as resulting in the condition of slavery, and the conduct, to which Section 270.3(1)(a) was directed (paras. 36–59).

Per Kirby J: (1) The provisions of the Code were constitutionally valid. Section 270.3(1)(a) of the Code gave effect to Australia's obligations under the 1926 Slavery Convention. The definition of ‘slavery’ in Section 270.1 and the consequential offences in Section 270.3(1)(a) were reasonably proportionate to a law giving effect to those obligations (para. 84).

(2) The Court's task was to construe and apply the Code, an Australian statute which introduced into Australian municipal law offences derived substantially from the 1926 Convention. Slavery, like piracy, was a crime against humanity. Such offences arguably attracted obligations that attached to crimes of universal jurisdiction. As a jus cogens rule, slavery was prohibited as a peremptory norm from which no derogation was permitted. Given its seriousness, slavery needed to be defined carefully and precisely. That human trafficking, the movement, recruitment or receipt of persons, often by means of the threat or use of force, for the purpose of exploitation, commonly operated as part of slavery served to reinforce the serious nature of slavery. Slavery should not be overextended to apply to activities amounting to seriously oppressive employment

relationships. The approach of the majority was inconsistent with this aim (paras. 110–17).

(3) To ensure that Australia remained in broad harmony with the law of similar countries, and particularly for universal crimes, the more stringent requirement of proof of intention should be adopted in respect of the slavery offences in Section 270.3(1)(a) of the Code. Neither should slavery offences be used to suppress lawful commercial sex work. While there was evidence upon which a reasonable jury, properly instructed, might have convicted the respondent of slavery offences, the fault element of intention had not been clearly explained to the jury, resulting in a miscarried trial (paras. 118–31).

Per Hayne J (with whom Gummow, Heydon, Crennan and Kiefel JJ agreed): (1) The definition of ‘slavery’ adopted in Section 270.1 of the Code derived from the definition of slavery, as a condition, that was given in the 1926 Convention (paras. 135–7).

(2) ‘Ownership’ and ‘powers attaching to the right of ownership’ had to be understood as ordinary expressions applied in their context. Proof of the intentional exercise of any of the relevant powers over a person established that the victim was a slave and the accused had done that which was prohibited by legislation. Since the evidence permitted the conclusion that the respondent used and possessed each complainant as an item of property at the disposal of the purchaser irrespective of her wishes, it could be concluded that the respondent used and possessed each complainant as a slave (paras. 138–68).

The following is the text of the judgments delivered in the Court:

1. GLEESON CJ. Following a trial in the County Court of Victoria, before Judge Mclnerney and a jury, the respondent was convicted of five offences of intentionally possessing a slave, and five offences of intentionally exercising over a slave a power attaching to the right of ownership, namely the power to use, contrary to s 270.3(1)(a) of the Criminal Code (Cth) (the Code). She was sentenced to a lengthy term of imprisonment. The Court of Appeal of the Supreme Court of Victoria upheld an appeal against each of the convictions, quashed the convictions and ordered a new trial on all counts.1 The prosecution, by special leave, has appealed to this court. The respondent seeks special leave to cross-appeal against the order for a new trial.

2. The Court of Appeal rejected a number of grounds of appeal which, if upheld, would have resulted in an acquittal on all counts. It upheld one ground of appeal, which complained that the directions given to the jury were inadequate. The proposed cross-appeal raises three

grounds. The first two grounds concern the meaning and constitutional validity of s 270.3(1)(a). Both grounds were rejected by the Court of Appeal. Logically, a consideration of those grounds should come before consideration of the Court of Appeal's decision on the directions given to the jury. Special leave to cross-appeal on those two grounds should be granted. It will be convenient to deal with them before turning to the prosecution appeal. It is also convenient to leave to one side for the moment the proposed third ground of cross-appeal, which is that the Court of Appeal erred in failing to hold that the jury verdicts were unreasonable or could not be supported having regard to the evidence.

The Legislation

3. Chapter 8 of the Code deals with ‘Offences against humanity’. It includes Div. 270, which deals with ‘Slavery, sexual servitude and deceptive recruiting’. Division 270, which was introduced by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth), was based on recommendations made by the Australian Law Reform Commission in 1990.2 It includes the following:

4. Later, at a time after the alleged offences the subject of these proceedings, a further offence...