The Queen v. Tang (2008) HCA 39 (28 August 2008).
Author | Harris, Callista |
Position | Debt bondage and prostitution - Australia |
Introduction
The appeal to the High Court in The Queen v Tang ('Tang') (1) concerned the 'first convictions in Australia' for 'slavery offences' contrary to s 270.3(l)(a) of the Criminal Code (Cth) ('the Criminal Code'). (2) In upholding the convictions, the High Court provided insight into how international law relating to slavery will be interpreted and applied in Australia. The approach the majority adopted is in conformity with international law and, in some respects, is an improvement on the existing jurisprudence. However, while these proceedings were pending, a lesser offence of 'debt bondage' was added as S 271.8 of the Criminal Code, which will have an effect on future decisions.
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The Factual Background
The charges against Tang ('the respondent') related to her treatment of five women ('the complainants') who came voluntarily to Australia and worked in the respondent's licensed brothel. (3)
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The 'Purchase' of the Complainants
The complainants (Thai nationals, who had all previously worked in the sex industry) were recruited in Thailand. (4) When each complainant arrived in Australia, her Thai recruiters were paid $20,000 by a 'syndicate'. (5) The respondent held a 70 per cent share in the syndicate which 'purchased' four of the complainants. (6) The respondent was not a member of the syndicate that 'purchased' the fifth complainant (as that complainant originally worked in another brothel). (7) At trial, DS (originally a co-accused) described the $20,000 as 'the money for purchasing women from Thailand to come here'. (8)
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The Debts Incurred by the Complainants
Each complainant acknowledged a debt of approximately $45,000 to their 'purchasing' syndicate. (9) According to the trial Judge, this amount was a notional liability, taking into account the $20,000 paid to the recruiters, the costs of travel, the complainant's living expenses and a 'profit margin'. (10) Customers of the complainants were charged $110 and a complainant's debt was reduced by $50 per customer. (11) The complainants came to Australia on the understanding that once they paid their 'debt', they would be able to earn money on their own account as prostitutes. (12)
Gleeson CJ summarised that 'while under contract, each complainant was to work in the respondent's brothel in Melbourne six days per week, serving up to 900 customers over a period of four to six months'. (13)
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The Complainants' Working Conditions
The trial judge was satisfied that the complainants were financially deprived and vulnerable upon arriving in Australia. (14) They entered Australia on illegally obtained tourist visas, had very little (if any) money, spoke little (if any) English and knew no-one. (15) During the term of their contracts, the complainants' passports and return airfares were held by the respondent. (16) While the complainants were well provided for and were not kept under 'lock and key', the trial judge found they were effectively restricted to the brothel premises. (17)
Two of the complainants worked off their debts within six months and decided to continue working at the respondent's brothel (without the above restrictions). (18)
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The Case in the Lower Courts
At trial before a jury, the respondent was convicted under s 270.3(l)(a) of the Criminal Code of intentionally possessing a slave and of intentionally exercising over a slave a power attaching to the right of ownership (namely, the power of use). (19)
The Court of Appeal (20) upheld an appeal on the basis of the inadequacy of the trial Judge's directions to the jury, quashed the convictions and ordered a new trial. (21)
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The Proceedings before the High Court
The High Court granted the prosecution special leave to appeal the Court of Appeal's decision. (22) The respondent sought special leave to cross-appeal on three grounds, seeking the substitution of verdicts of acquittal. (23) Although the respondent was granted special leave on two grounds, (24) the cross-appeal was dismissed. (25) The prosecution's appeal was allowed and the respondent's convictions restored. (26)
The principal judgment was delivered by Gleeson CJ. Hayne J delivered a separate judgement agreeing with Gleeson CJ. Gummow, Heydon, Crennan and Kiefel JJ agreed with Gleeson CJ and Hayne J. Kirby J generally agreed in a separate judgment, but dissented concerning the trial judge's directions to the jury. (27)
This note discusses, first, the meaning of s 270.3(l)(a) (the second ground of cross-appeal) and, secondly, the adequacy of the trial judge's directions to the jury (the ground of appeal).
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The Relevant Legislation
Division 270 of the Criminal Code states:
270.1 Definition of slavery
For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.
270.2 Slavery is unlawful
Slavery remains unlawful and its abolition is maintained, despite the repeal by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 of Imperial Acts relating to slavery.
270.3 Slavery offences
(1) A person who, whether within or outside Australia, intentionally:
(a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or ...
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The Meaning of s 270.3(I)(a)
In issue was whether s 270.3(l)(a) is confined to situations akin to Chattel slavery. (28) 'Chattel slavery' refers to the legal capacity of a person to treat another as an article of possession. (29)
Gleeson CJ
The Meaning of' 'Slavery'
Gleeson CJ noted that the definition of' 'slavery' in s 270.1 is derived from the 1926 Slavery Convention (30) ('the Convention'), (31) which provides:
Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. (32) Gleeson CJ noted that although the travaux preparatoires of the Convention are not especially illuminating' as to the meaning of the above definition, certain observations can be made about the Convention's text, context and purpose. (33) First, he noted that, in 1926, legal ownership of another person was already impossible in many of the State parties (that is, the legal status of slavery did not exist). (34) Secondly, the Convention refers to the 'status or condition' of slavery. (35) The Convention addressed the 'condition' of slavery so as to cover slavery de facto, as well as the de jure status of slavery. (36) Gleeson CJ stated that this is 'hardly surprising' given that the aim...
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