R v TANG

  • Country: Australia
  • Case ID: [2008] HCA 39; (2008) 237 CLR 1
  • Case Date: Thursday, 28 August 2008
  • Court: High Court Australia
  • Judges: Gleeson CJ, Gummow, Hayne, Heydon, Crennan, Kiefel JJ (Kirby J dissenting)

Women who consented to engage in prostitution could still be regarded as held in a condition of slavery where they were in fact subject to powers of control generally associated with ownership.

International instruments and law considered

International Convention to Suppress the Slave Trade and Slavery (Slavery Convention)

Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery

Criminal Code (Commonwealth) (CC)

Facts

The respondent (T) operated a licensed brothel in Melbourne, Victoria. Victorian law permits the operation of licensed brothels. She was charged and convicted under CC s270.3(1)(a) for five offences of intentionally possessing a slave and for five offences of exercising power of ownership over a slave.

The charges related to five women who were recruited from Thailand to work in a Melbourne brothel. Under the terms of an oral agreement, each woman owed a debt of about $45,000 to T. This debt was based on the price paid by T to ‘purchase’ the women from their Thai recruiters, as well as travel, accommodation and other expenses.

To pay this debt the women were required to work six nights a week in a brothel servicing clients. For every client serviced the debt was reduced by $50. The women were provided accommodation and food. They were to earn nothing from their work until the debt was paid off. The seventh day was a free day when they could work and keep earnings for that day. The women’s passports and return air tickets were kept by T. Their movements were also supervised, and they were effectively confined to the brothel.

All five women had voluntarily travelled to Australia on the understanding that once their debt was paid off, they would have the opportunity to earn money on their own account by working as prostitutes. They knew about the general nature of the work they were going to perform.

The convictions were quashed in the Court of Appeal of the Supreme Court of Victoria, from which there was a further appeal to the High Court of Australia.

Issue

• Whether T’s conduct was capable of falling within s270.3(1)(a).

Decision

The court found there was evidence on which a jury could have found T guilty, and reinstated the convictions.

In deciding whether the five women could be regarded as slaves, the court made reference to the definition of slavery in CC, namely 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.’ This definition, which is derived from the Slavery Convention, assumes that no one can be a slave in a legal sense in Australia, as ownership of a person is not possible. Instead, the CC targets conduct which treats a person as if they were a slave. In short, it prohibits de facto slavery.

The High Court had to distinguish between slavery and other harsh employment conditions which may not amount to slavery. Gleeson CJ held that this depended on the nature and extent of the powers exercised over the women. Of particular relevance here was T’s capacity to deal with the women as objects of sale and purchase, her extreme control over their movements, and the lack of payment for their services. Gleeson CJ also accepted that lack of consent was relevant, but not essential – it was possible for a person to have agreed to enter the condition of slavery.

Hayne J agreed with Gleeson CJ. His approach was that a person may be said to enslave another human being where one person has ‘requisite dominion’ over the other. Hayne J concluded that a slave is someone ‘deprived of choice.’ He said that ‘asking what freedom a person has may shed a light on whether the person was a slave.’

Hayne J concluded that even if the five women came to Australia voluntarily, knowing well the nature of work they had to perform, the central question was whether they had ‘any freedom to choose what was done with them in Australia.’ They had arrived in Australia with little money and hardly any knowledge of English. They were ‘bought and sold’ and required to pay off a debt that was arbitrarily imposed on them. They had no effective choice about their movements or working hours. His Honour also cast doubt on the reality of the women’s consent, suggesting that factors such as the power imbalance with their recruiters may have well have precluded real consent.

Comment

The discussion endorsed the principle that domestic legislation should be interpreted, as far as possible, to be consistent with a nation’s international obligations, including obligations in relation to human rights. The High Court interpreted the definition of slavery in CC in line with the definition in Article 1 of the Slavery Convention. It also supported the broader interpretation of slavery adopted by the International Criminal Tribunal for the former Yugoslavia in the Kunarac case, Case No IT-96-23 and IT-96-23/1-A (12 June 2002) (Judgment) rather than the more restrictive interpretation of the European Court of Human Rights in Siliadin v France (2005) VII Eur Court HR 333.

This case is an important landmark in that it recognises the realities of contemporary forms of slavery. It is a significant decision in an era when human trafficking is a major international concern.



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