The case against Melbourne Ms Tang was significant as the first jury conviction under Australia’s Criminal Code (Cth) slavery offences and one of very few successful prosecutions of human trafficking in Australia. It was also the first test of Australia’s slavery and sexual servitude offences before the High Court, with the relative novelty of the legislation providing grounds for much debate within the judgment [A fact noted by Kirby J in R v Wei Tang (2008) 238 CLR 1 at [66] and [72]].

The basic facts of the case and outcome of the High Court appeal have been detailed above and will not be repeated here. It should be noted, however, that Chief Justice Gleeson penned the leading judgment with Hayne J. generally agreeing with his reasons, but providing further analysis on some points. Gummow, Heydon, Crennan and Keifel J.J. agreed with the orders and reasons of both Gleeson C.J. and Hayne J. Kirby J. agreed with the majority on most points but dissented in relation to the proper construction of the fault element of the slavery offences.

The following case note begins by briefly outlining the definition of slavery in the Criminal Code (Cth) and the associated slavery offences. There is then an analysis of the major issues to arise in the High Court decision: the constitutionality of the slavery provisions, the argument over how ‘slavery’ should be defined and recognised in Australian law, and the proper construction of the mental elements of the offence. This case note concludes with a number of comments about the significance and implications of the decision.

I. The Slavery Offences

The case against Ms Tang was based on the prosecution’s argument that she was involved in possessing and utilising slaves, which is criminalised in s 270.3(1)(a) Criminal Code (Cth). The introduction of the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth) [No 104 of 1999] (’The Act’) represented the first attempt by an Australian Parliament to legislate against slavery and, in a general sense, address the issue of human trafficking. The Act inserted a new Division 270 entitled ‘Slavery, sexual servitude and deceptive recruiting’ into Chapter 8 (‘Crimes against humanity and related offences’) of the Criminal Code (Cth). Division 270 sets out the offences of slavery (s 270.3), causing another person to remain in sexual servitude (s 270.6), and deceptive recruitment into sexual services (s 270.7).

Prior to the passage of this legislation, slavery and the slave trade were governed by four 19^th- century British Imperial Acts [See, for example, Act for the Abolition of the Slave Trade 1807 (UK), 47 Geo III, sess 1, c 36; Slave Trade Act 1873 (UK), 36 & 37 Vic, c 88] which employed ‘archaic language and relate to outdated circumstances and institutions that have either changed or long since fallen into disuse’[Australia (Cth), Parliamentary Debates, House of Representatives, 11 Aug 1999, 8495 (Murray Stone)]. In 1990, the Australian Law Reform Commission recommended that these ‘complex Imperial Acts with their uncertain punishments should be replaced with modern and concise Australian statutory offences’ [Australian Law Reform Commission, Criminal admiralty jurisdiction and prize, Report No. 48 (1990) 83]. The slavery offences now contained in the Criminal Code (Cth) are based on the recommendations of the Australian Law Reform Commission [Explanatory Memorandum, Criminal Code Amendment (Slavery and Sexual Servitude) Bill 1999 (Cth) 2] as supported by the Model Criminal Code Officers Committee – MCCOC [Model Criminal Code Officers Committee, Model Criminal Code — Offences Against Humanity — Slavery, (1998) 31].

Sections 270.1–270.3 set out the slavery offences in the Criminal Code (Cth). Section 270.1 provides the definition of ‘slavery’ (see below) and s 270.2 highlights that ‘slavery remains unlawful and its abolition is maintained, despite the repeal by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth) of Imperial Acts relating to slavery’.

Section 270.3 creates offences of possessing a slave or exercising a power of ownership over a slave, engaging in slave trading, entering into a commercial transaction involving a slave and exercising control or direction over, or providing finance for, a commercial transaction involving a slave or an act of slave trading.  While there are separate offences to deal with sexual servitude, the slavery offences ‘may also apply if the control of the sex worker is so far-reaching that it effectively amounts to a right of ownership over him or her’[Australia (Cth), Parliamentary Debates, Senate, 24 Mar 1999, 3076 (Ian Macdonald)]. These slavery offences are divided into intentional offences (s 270.3(1)) and offences involving recklessness (s 270.3(2)). The maximum term of imprisonment for the slavery offences is 25 years imprisonment.

Section 270.1 of the Criminal Code (Cth) defines ‘slavery’ as

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 is modelled on the definition of ‘slavery’ in the 1926 International Convention to Suppress the Slave Trade and Slavery [60 LNTS 253]  and its 1953 Protocol [182 UNTS 51] and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery [226 UNTS3], to which Australia is a State Party [1927 ATS 11, 1949 ATS 19, 1953 ATS 8 1958 ATS 3; cf Explanatory Memorandum, Criminal Code Amendment (Slavery and Sexual Servitude) Bill 1999 (Cth) 18].

The Explanatory Memorandum states that ‘whether a person is a slave for the purposes of this Division is a matter to be determined by the courts on a case by case basis’[Explanatory Memorandum, Criminal Code Amendment (Slavery and Sexual Servitude) Bill 1999 (Cth) 19]. The difficulty is that, because slavery does not legally exist in Australia (s 270.2 Criminal Code), there are complex questions surrounding how the court recognises an incident of slavery and what sort of indicia are relevant in this process [Irina Kolodizner. ‘R v Tang: developing an Australian anti-slavery jurisprudence’ (2009) 31(3) Sydney Law Review 487, 491].

II. Constitutionality: De Jure or De Facto Slavery?

A major ground that Ms Tang’s challenged her conviction on was that s 270.3 Criminal Code (Cth) was not within the legislative power of the Commonwealth Parliament. The definition of ‘slave’ in s 270.3 draws upon the definition of slavery in s 270.1. Slavery is defined as 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 [Criminal Code (Cth) s 270.1].

This definition is based on Article 1 of the International Convention to Suppress the Slave Trade and Slavery of 1926 [212 UNTS 17]. The Commonwealth Parliament added the phrase ‘including where such a condition results from a debt or contract made by the person’, which was not included in the Convention. Parliament also removed the term ‘status’ from ‘status or condition of a person’[Article 1 of the 1926 Slavery Convention states that ‘[s]lavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’]. This may be attributable to fact that the 1926 Slavery Convention was made in contemplation of de jure slavery, the status of chattel slavery, rather than any de facto conditions of slavery. Chattel slavery exists in instances where the slave is the legally recognised property of the owner. This form of slavery was abolished by the imperial acts, and this abolition is maintained under s 270.2. Thus the addition of the ‘debt or contract’ provision to the definition in s 270.1 is aimed at expanding the scope of the offence in s 270.3 to the more modern forms of slavery such as debt bondage or extremely exploitative contracts, as chattel slavery is legally impossible in Australia (s 270.2). The legality of Ms Tang’s conviction was challenged on the basis that this expansion, going beyond the 1926 Slavery Convention on which the offence is purportedly based, was not within the legislative power of the Commonwealth Parliament under the external affairs power in s51(xxix) of the Australian Constitution.

Chief Justice Gleeson considered the phrasing of the definition in s 270.1, noting that the word ‘including’ is used to clarify that de facto slavery arising from a debt or contract falls within the definition of slavery when that debt or contract gives rise to a condition where sufficient powers of ownership are exercised over a person. As such it does not expand the definition, as the condition must be met regardless [R v Wei Tang (2008) 238 CLR 1 at [33] (per Gleeson CJ)].

Furthermore, Gleeson CJ held that the phrase ‘status or condition’ the Convention’s definition of slavery itself makes the distinction between de jure and de facto slavery [R v Wei Tang (2008) 238 CLR 1 at [25] – [27] (per Gleeson CJ)]. Because the Criminal Code (Cth) imports the term ‘condition’ from the Convention, it thereby also recognises de facto slavery [R v Wei Tang (2008) 238 CLR 1 at [33] (per Gleeson CJ)]. Irina Kolodizner notes on this point that in taking this approach ‘the Court neatly avoided the issue of domestic recognition of slavery by drawing on international law’[Irina Kolodizner. ‘R v Tang: developing an Australian anti-slavery jurisprudence’(2009) 31(3) Sydney Law Review 487, 492].

On the basis of the reasons given by Gleeson CJ, it was unanimously held that the offences were reasonably capable of being considered and ‘appropriate and adapted’ [Victoria v Cth (1996) 187 CLR 416, 486–487] implementation of Australia’s international obligations [R v Wei Tang (2008) 238 CLR 1 at [34] (per Gleeson CJ)].

III. The Indicia of Slavery

Having confirmed that de facto and de jure slavery are recognised in Australia, Gleeson CJ turned to international jurisprudence to determine what various powers, the exercise of which, would be relevant to determining whether a de facto condition of slavery existed [For further discussion of the international jurisprudence analysed see, Jean Allain. ‘R v Tang: Clarifying the Definition of 'Slavery' in International Law’ (2009) 10(1) Melbourne Journal of International Law 246].

Gleeson relevantly notes:

It is important not to debase the currency of language, or to banalise crimes against humanity, by giving slavery a meaning that extends beyond the limits set by the text, context, and purpose of the 1926 Slavery Convention. In particular it is important to recognise that harsh and exploitative conditions of labour do not of themselves amount to slavery. The term "slave" is sometimes used in a metaphorical sense to describe victims of such conditions, but that sense is not of present relevance. Some of the factors identified as relevant in Kunarac, such as control of movement and control of physical environment, involve questions of degree. An employer normally has some degree of control over the movements, or work environment, of an employee. Furthermore, geographical and other circumstances may limit an employee's freedom of movement. Powers of control, in the context of an issue of slavery, are powers of the kind and degree that would attach to a right of ownership if such a right were legally possible, not powers of a kind that are no more than an incident of harsh employment, either generally or at a particular time or place [R v Wei Tang (2008) 238 CLR 1 at [32]].

Jean Allain argues that Gleeson C.J. was avoiding an extension of the meaning of slavery to more expansive factors such as ‘oppression of the individual; deception and abuse of power creating a situation of vulnerability; and cruel treatment or abuse’ [Jean Allain. ‘R v Tang: Clarifying the Definition of 'Slavery' in International Law’ (2009) 10(1) Melbourne Journal of International Law 246, 251].

Gleeson C.J. further clarified his position by asking how a jury would ‘distinguish between slavery, on the one hand, and harsh and exploitative conditions of labour, on the other?

The answer to that, in a given case, may be found in the nature and extent of the powers exercised over a complainant. In particular, a capacity to deal with a complainant as a commodity, an object of sale and purchase, may be a powerful indication that a case falls on one side of the line. So also may the exercise of powers of control over movement which extend well beyond powers exercised even in the most exploitative of employment circumstances, and absence or extreme inadequacy of payment for services [R v Wei Tang (2008) 238 CLR 1 at [44]].

His Honour concluded by noting that consent is not inconsistent with the concept of slavery and, although it may sometimes be relevant in the circumstances, its absence is not an element of the offence [R v Wei Tang (2008) 238 CLR 1 at [35]]. For Gleeson C.J., it is ultimately for the jury to decide what ‘ownership’ of a person looks like and what kinds of powers will attach to such a relationship.

Hayne J. agreed generally with the reasons of Gleeson J. [R v Wei Tang (2008) 238 CLR 1 at [133]], but also gave extensive consideration to the definition of slavery, and the situations from which it could be inferred. His Honour highlighted the difficulty of understanding the word ‘ownership’ in the context of the slavery offence, as Australian law does not recognise any right to ‘possess’ a person [R v Wei Tang (2008) 238 CLR 1 at [140]]. He suggested that in dealing with abstract concepts of ‘ownership’ and ‘possession’, some assistance can be obtained by considering the antithesis of slavery and asking ‘whether, and in what respects, the person alleged to be a slave was free’ [R v Wei Tang (2008) 238 CLR 1 at [155]]. His Honour recognised, however, that the Code ultimately requires a decision about ownership and not the state of mind of the complainant [R v Wei Tang (2008) 238 CLR 1 at [159]]. Rachel Harris notes that Hayne J is slightly inconsistent with Gleeson C.J. on this point:

According to Hayne J. […] involuntariness is central to the condition of slavery. Hayne J. deals with the additional words by making a distinction between a person 'freely choosing' to enter into a relationship amounting to slavery, and being inside such a relationship. Once inside a slavery relationship, a slave, by definition, has no freedom of choice. This makes genuine consent and slavery mutually exclusive concepts [Harris, Rachel. ‘Modern-day slavery in Australia: The Queen v Wei Tang’ (Paper presented at the 13^th Annual Public Law Weekend, National Museum of Australia, Canberra, 1 November 2008) Australian National University, accessed at <http://law.anu.edu.au/cipl/Conferences&SawerLecture/2008/2008%20PLW/Wei_Tang_Talk_RH.pdf?> at 14 September 2011, 7].

IV. The Fault Element in the Slavery Offences

The final, and most contentious, issue to be considered by the Court was the proper construction of the fault element of the slavery offences. The Victorian Court of Appeal found that defining the relevant mental element for the offence under s 270.3 Criminal Code (Cth), and the subsequent direction given to the jury by the trial judge, was the ‘critical issue’ in the case [R v Wei Tang (2008) 238 CLR 1 at [38]]. The Court of Appeal found that the trial judge had not directed the jury’s consideration sufficiently to the requisite mental element, intention [R v Wei Tang (2007) 16 VR 454 at [144]]. As a result the Court of Appeal ordered a retrial. The Victorian Attorney-General successfully appealed this finding to the High Court.

Chief Justice Gleeson, with whom all but Kirby J. agreed, found that the Court of Appeal erred [R v Wei Tang (2008) 238 CLR 1 at [43]] in requiring the defendant to have an ‘appreciation of the character’[R v Wei Tang (2007) 16 VR 454 at [144]] of her actions. He instead found that ‘[i]t was not necessary for the prosecution to establish that the respondent had any knowledge or belief concerning the source of the powers exercised over the complainants’ [R v Wei Tang (2007) 16 VR 454 at [144]].

It was on this point that Kirby J. dissented, agreeing with the Court of Appeal that a retrial was the correct course.  He considered the structure given to the offence, specifically, that the adverb ‘intentionally’ was placed in the châpeau of the offence, thus applying to all subsequent clauses. He surmised that it is not enough for the accused to ‘possess’ a slave or to ‘exercise’ control over a slave ‘any of the other powers attaching to the right of ownership’. To be guilty of the offence provided by the Code, the accused must do these things, and all of them, ‘intentionally’ [R v Wei Tang (2008) 238 CLR 1 at [93]].

His Honour thus agreed with the Court of Appeal that there must be an intention on the part of the accused to deal with the complainant as a slave, as if they were mere property [R v Wei Tang (2008) 238 CLR 1 at [126]]. He finds support for this premise in that a penal statute which operates to deprive an individual of their liberty is traditionally construed strictly [He Kaw Teh v R (1985) 157 CLR 523, 583]. It must be noted that despite the criticisms of Gleeson C.J. and Hayne J., Kirby J. does not require the accused to have an appreciation of the source of the powers exercised, but merely an appreciation of the result of exercising those powers, specifically, that it renders the complainant a slave.

In summary, the majority of the High Court favoured a definition that required intention only in relation to the exercise of any the powers attaching to ownership, following the ‘common exercise of relating the fault element to the physical elements of the offence’[He Kaw Teh v R (1985) 157 CLR 523, 568]. Justice Kirby disagreed, requiring the prosecution to show that the accused intentionally exercised those powers in relation to a person the accused knew to be a slave.

V. Conclusion

A significant aspect of the decision, as highlighted by a number of commentators, was that it was a thorough assessment of the meaning of ‘slavery’ in international law and confirmed a definition in Australia that was aligned with it [Irina Kolodizner. ‘R v Tang: developing an Australian anti-slavery jurisprudence’ (2009) 31(3) Sydney Law Review 487, 492; Jean Allain. ‘R v Tang: Clarifying the Definition of 'Slavery' in International Law’ (2009) 10(1) Melbourne Journal of International Law 246; Bronwyn Byrnes. ‘Beyond Wei Tang: Do Australia’s human trafficking laws fully reflect Australia’s international human rights obligations?’ (speech delivered at Workshop on Legal and Criminal Justice Responses to Trafficking in Persons in Australia: Obstacles, Opportunities and Best Practice, 9 November 2009)].

In particular, Jean Allain applauds the High Court for concluding that the 1926 Slavery Convention definition included both de jure and de facto slavery but ‘avoided taking on an expansive notion of ‘enslavement’ as developed in the Kunarac case’ [Jean Allain. ‘R v Tang: Clarifying the Definition of 'Slavery' in International Law’ (2009) 10(1) Melbourne Journal of International Law 246, 250].

What follows from this landmark decision is that the offence of slavery is a viable option for use against human traffickers, as there is no requirement to prove consideration on the part of the traffickers that they were dealing with the complainant as a slave.  It was noted by Chief Justice Gleeson that such evidence would be ‘rare’ [R v Wei Tang (2008) 238 CLR 1 at [44]].  Bronwyn Byrnes also suggests that the decision means more subtle forms of control and possession, rather than physical threats and force, can be used to establish slavery [Bronwyn Byrnes. ‘Beyond Wei Tang: Do Australia’s human trafficking laws fully reflect Australia’s international human rights obligations?’ (speech delivered at Workshop on Legal and Criminal Justice Responses to Trafficking in Persons in Australia: Obstacles, Opportunities and Best Practice, 9 November 2009)]. This predication has perhaps been confirmed in the subsequent case of R v Kovacs [R v Kovacs [2009] 2 Qd R 51.  See separate case report at www.law.uq.edu/humantrafficking] where the expanded meaning of ‘slavery’ accepted by the High Court in R v Tang was used to facilitate the ¾ ultimately successful ¾ prosecution of a novel case that involved domestic servitude. The [Kovacs] decision recognises the view in R v Tang that there are cases of trafficking and slavery where more subtle forms of coercion are used to prevent the victim from leaving [Schloenhardt, Andreas & Jarrod Jolly, ‘Honeymoon from Hell: Human Trafficking and Domestic Servitude in Australia’ (2010) 32(4) Sydney Law Review 671, 686].

However, it could also be argued the decision may have resulted in the watering down of the high threshold historically required for a conviction for serious criminal offences.  To the contrary, it has been suggested that ‘this slight incongruence (potentially alleviated by clear interpretation) is a small price to pay to give effect to a pertinent definition of slavery consistent with international law’[Irina Kolodizner. ‘R v Tang: developing an Australian anti-slavery jurisprudence’ (2009) 31(3) Sydney Law Review 487, 492; Jean Allain. ‘R v Tang: Clarifying the Definition of 'Slavery' in International Law’ (2009) 10(1) Melbourne Journal of International Law 487, 496].

This case has also been used for the Australian "Be Careful What You Pay For" campaign in 2011, see poster.