The Queen v Tang [2008] HCA 39 | Case summary

The Queen v Tang [2008] HCA 39 | Case summary | Zoe

There were five complainants. All of them consented to come to Australia to work, on the understanding that, once they had paid off their "debt", they would have the opportunity to earn money on their own account as prostitutes. Upon their arrival the women had very little, if any, money in their possession, spoke little, if any, English, and knew no-one.
Four of the complainants went to work in the respondent's brothel in the circumstances described above. In respect of each of those four complainants, the respondent had a share in a syndicate which, according to DS, "purchased" the complainant for $20,000. The contract "debt" was $45,000, or, in the particular case earlier mentioned, $42,000 or $43,000. In his remarks on sentencing, which were based on the evidence that went to the jury, the trial judge said that this sum took account of the $20,000 paid to the recruiters in Thailand, as well as costs of travel and the complainant's living expenses during the term of the contract. It included a profit margin, but the margin was not the subject of any calculation. The "debt" was a notional liability by reference to which aspects of the complainant's obligations were regulated. It was the amount she had to work off, at the rate of $50 per customer, under her "contract". Two of the complainants ultimately worked off their debts, and were thereafter paid for their prostitution.
The respondent herself paid nothing to the recruiters in the case of the fifth complainant. The evidence was that, after the fifth complainant was brought to Australia, she worked for others at a different brothel. Later, DS arranged for her to work at the respondent's brothel. The arrangements in relation to the fifth complainant were the same as for the other four, save that she had different "owners". DS's evidence was that, in relation to the $110 paid by each of the fifth complainant's customers, the respondent retained $43 as brothel owner and the remaining $67 would be paid to DS, who divided the amount between that complainant's owners. The fifth complainant's "debt" of $45,000 also was being worked off at the rate of $50 per customer.
In summary, then, 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. The complainants earned nothing in cash while under contract except that, by working on the seventh, "free", day each week, they could keep the $50 per customer that would, during the rest of the week, go to offset their contract debts.

The trial judge said in his sentencing remarks that he was satisfied on the evidence that the complainants were financially deprived and vulnerable upon arriving in Australia. He found that the complainants entered Australia on visas that were obtained illegally. Continued receipt of the benefits of the complainants' contracts depended on their not being apprehended by immigration authorities. The benefits were more certain to be obtained when the complainants were kept hidden.
While on contract, the complainants' passports and return airfares were retained by the respondent. This was done so that the passports could be produced to immigration authorities if necessary, and also so that the complainants could not run away. The complainants lived in premises arranged by the respondent, where they were lodged and fed, and their medical requirements attended to. The evidence was that the complainants were well-provisioned, fed, and provided for. The complainants were not kept under lock and key. Nevertheless, the trial judge said that, in the totality of the circumstances, the complainants were effectively restricted to the premises. On rare occasions they ventured out with consent or under supervision. The circumstances to which the trial judge referred included the hours of work involved, as well as control by way of fear of detection from immigration authorities, fear of visa offences, advice to be aware of immigration authorities, advice to tell false stories to immigration authorities if apprehended, and instructions not to leave their accommodation without the respondent, DS or the manager of the brothel. In the case of some of the contract workers, the regime became more relaxed as the contract progressed and, towards the end of their contracts, they were at liberty to go out as they wished. At work, the trial judge found that, while they were occasionally permitted to go out to shop, the complainants were, because of the nature and hours of their work, effectively restricted to the premises.
In the case of the two complainants who ultimately paid off their debts, the restrictions that had been placed on them were then lifted, their passports were returned, and they were free to choose their hours of work, and their accommodation.
In addition to the restrictions that were placed on the complainants, the prosecution pointed to the demands placed upon them as to the numbers of clients they were required to service, their lack of payment, and the days and hours they were required to work as demonstrating that their situation differed materially from that of other sex workers who, however exploited they may have been, were not slaves. The Court of Appeal accepted that the evidence was capable of supporting the jury verdicts, which were held not to have been unreasonable.

As to ground (1), the Court of Appeal held that the relevant provisions of the Code were enacted pursuant to, and sustained by, the power of the Parliament to make laws with respect to external affairs (Constitution, s 51(xxix)). As to ground (2), the Court of Appeal held that s 270.3(1)(a) was not confined to what is sometimes called "chattel slavery". Presumably, the reference in ground (2) to "situations akin to" chattel slavery, and to notional ownership, was prompted by the consideration that chattel slavery is, in Australia, a legal impossibility. If s 270.3(1)(a), in its application to conduct within Australia, were confined to chattel slavery and legal ownership it would have no practical operation. Section 270.2 would eliminate chattel slavery and ownership and s 270.3(1)(a) would be otiose. The Court of Appeal held that the facts alleged in the present case were capable of being regarded as within the scope of s 270.3(1)(a). For the reasons that follow, the decision of the Court of Appeal on these issues should be upheld.
The word "slave" in s 270.3(1)(a) is not defined. It takes its meaning from the definition of "slavery" in s 270.1. That definition, in turn, derives from, although it is not identical to, the definition of "slavery" in Art 1 of the 1926 International Convention to Suppress the Slave Trade and Slavery ("the 1926 Slavery Convention")[5]. That definition was taken up in Art 7 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery ("the 1956 Supplementary Convention")[6], which dealt with institutions and practices similar to slavery "where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the [1926] Slavery Convention"[7].
The 1926 Slavery Convention, in its Preamble, recited the declaration in the General Act of the Brussels Conference of 1889-1890 of an intention to put an end to the traffic in African slaves, the intention, affirmed at the Convention of Saint-Germain-en-Laye of 1919, to secure the complete suppression of slavery in all its forms, and the need to prevent forced labour from developing into conditions analogous to slavery. Article 2 contained an undertaking by the parties to prevent and suppress the slave trade and to bring about the complete abolition of slavery "in all its forms".
Article 1 of the 1926 Slavery Convention was in the following terms:

The definition in Art 1(1) has continued to be used in international instruments. For example, the Rome Statute of the International Criminal Court, which entered into force in 2002, defined "enslavement", a crime against humanity, as "the exercise of any or all of the powers attaching to the right of ownership over a person ... includ[ing] the exercise of such power in the course of trafficking in persons"[8].
The travaux préparatoires of the 1926 Slavery Convention are not especially illuminating as to the meaning of Art 1[9]. Nevertheless, certain observations may be made as to the text and context, including the purpose, of the Convention. First, in 1926, in the case of many of the parties to the Convention, including Australia, the legal status of slavery did not exist, and legal ownership by one person of another was impossible. (In Australia, the law on slavery was based on four 19th century Imperial Acts[10], a matter adverted to in s 270.2 of the Code.) Secondly, a principal object of the Convention was to bring about the same situation universally, as soon as possible. Thirdly, the definition of slavery in Art 1 referred to the status or condition of a person. Status is a legal concept. Since the legal status of slavery did not exist in many parts of the world, and since it was intended that it would cease to exist everywhere, the evident purpose of the reference to "condition" was to cover slavery de facto as well as de jure. This is hardly surprising. The declared aim of the parties to the Convention was to secure the complete suppression of slavery in all its forms, and to prevent forced labour from developing into conditions analogous to slavery. They undertook to bring about "the complete abolition of slavery in all its forms". It would have been a pitiful effort towards the achievement of those ends to construct a Convention that dealt only with questions of legal status. The slave trade was not, and is not, something that could be suppressed merely by withdrawal of legal recognition of the incidents of slavery. It is one thing to withdraw legal recognition of slavery; it is another thing to suppress it. The Convention aimed to do both. Fourthly, the definition turns upon the exercise of power over a person. The antithesis of slavery is freedom. The kind of exercise of power that deprives a person of freedom to the extent that the person becomes a slave is said to be the exercise of any or all of the powers attaching to the right of ownership. As already noted, there was no legal right of ownership in many of the states which were parties to the Convention, and one purpose of the Convention was that there would be no such legal right anywhere.
In its application to the de facto condition, as distinct from the de jure status, of slavery, the definition was addressing the exercise over a person of powers of the kind that attached to the right of ownership when the legal status was possible; not necessarily all of those powers, but any or all of them. In a 1953 Memorandum, the Secretary-General of the United Nations[11] listed such powers as including the capacity to make a person an object of purchase, the capacity to use a person and a person's labour in a substantially unrestricted manner, and an entitlement to the fruits of the person's labour without compensation commensurate to the value of the labour. Each of those powers is of relevance in the present case. On the evidence it was open to the jury to conclude that each of the complainants was made an object of purchase (although in the case of one of them the purchaser was not the respondent); that, for the duration of the contracts, the owners had a capacity to use the complainants and the complainants' labour in a substantially unrestricted manner; and that the owners were entitled to the fruits of the complainants' labour without commensurate compensation.
The reference to "chattel slavery" in the second ground of cross-appeal is a reference to the legal capacity of an owner to treat a slave as an article of possession, subject to the qualification that the owner was not allowed to kill the slave; power over "the slave's person, property, and limbs, life only excepted"[12]. Without doubt, chattel slavery falls within the definition in Art 1 of the 1926 Slavery Convention, but it would be inconsistent with the considerations of purpose, context and text referred to in the preceding paragraph to read the definition as limited to that form of slavery.
In the case of Prosecutor v Kunarac, before the International Criminal Tribunal for the Former Yugoslavia, where the charges were of "enslavement", both the Trial Chamber[13] and the Appeals Chamber[14] adopted a view of the offence that was not limited to chattel slavery. The Trial Chamber, after an extensive review of relevant authorities and materials, concluded that enslavement as a crime against humanity in customary international law consisted of the exercise of any or all of the powers attaching to the right of ownership over a person; the actus reus of the violation being the exercise of any or all of such powers and the mens rea consisting in the intentional exercise of such powers[15]. The Trial Chamber identified, as factors to be taken into account, control of movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour[16]. The Appeals Chamber agreed with those factors[17]. However, it preferred to leave open, as a matter that was unnecessary for decision in that case, the Trial Chamber's added factor of an ability to buy and sell a person, and it disagreed with the Trial Chamber's view that lack of consent was an element of the offence, although accepting that it may be of evidential significance[18].
It is unnecessary, and unhelpful, for the resolution of the issues in the present case, to seek to draw boundaries between slavery and cognate concepts such as servitude, peonage, forced labour, or debt bondage. The 1956 Supplementary Convention in Art 1 recognised that some of the institutions and practices it covered might also be covered by the definition of slavery in Art 1 of the 1926 Slavery Convention. To repeat what was said earlier, the various concepts are not all mutually exclusive. Those who engage in the traffic in human beings are unlikely to be so obliging as to arrange their practices to conform to some convenient taxonomy.
In Siliadin v France[19], the European Court of Human Rights dealt with a complaint by a domestic worker that the French criminal law did not afford her sufficient and effective protection against "servitude" or at least "forced or compulsory" labour. Reference was made to legislative materials which used the term "modern slavery" to apply to some females, working in private households, who started out as migrant domestic workers, au pairs or "mail-order brides"[20]. The Court referred briefly and dismissively to the possibility that the applicant was a slave within the meaning of Art 1 of the 1926 Slavery Convention, saying[21]:

It is understandable, in the context of that case, that the definition of "slavery" was dealt with only in passing and briefly. Nevertheless, it is to be noted that the Court did not refer to the definition's reference to condition in the alternative to status, or to powers as well as rights, or to the words "any or all". It may be assumed that there is, in France, no such thing as "a genuine right of legal ownership" of a person. That Mr and Mrs B did not exercise a genuine right of legal ownership over the applicant was self-evident, but it would not have been a complete answer if there had been a serious issue of slavery in the case.
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.
Although the definition of "slavery" in s 270.1 of the Code is plainly based on the definition in Art 1 of the 1926 Slavery Convention, the wording is not identical. First, s 270.1 refers to "condition", not "status or condition". The explanation for the difference appears from s 270.2. There is no status of slavery under Australian law. Legal ownership of a person is impossible. Consequently s 270.1, in its application to conduct within Australia, is concerned with de facto slavery. In s 270.1, the reference to powers attaching to the right of ownership, which are exercised over a person in a condition described as slavery, is a reference to powers of such a nature and extent that they are attributes of effective (although not legal, for that is impossible) ownership[23]. Secondly, the concluding words of the definition in s 270.1 ("including where such a condition results from a debt or contract made by the person") do not alter the meaning of the preceding words because it is only where "such a condition" (that is, the condition earlier described in terms of the 1926 Slavery Convention) results that the words of inclusion apply. The words following "including", therefore, do not extend the operation of the previous words but make it plain that a condition that results from a debt or a contract is not, on that account alone, to be excluded from the definition, provided it would otherwise be covered by it. This is a common drafting technique, and its effect is not to be confused with that of cases where "including" is used as a term of extension[24].
In the result, the definition of "slavery" in s 270.1 falls within the definition in Art 1 of the 1926 Slavery Convention, and the relevant provisions of Div 270 are reasonably capable of being considered appropriate and adapted to give effect to Australia's obligations under that Convention[25]. They are sustained by the external affairs power. They are not limited to chattel slavery.
The factors accepted by both the Trial Chamber and the Appeals Chamber in Kunarac are relevant to the application of s 270.3(1)(a) of the Code. The Appeals Chamber was right to point out that consent is not inconsistent with slavery. In some societies where slavery was lawful, a person could sell himself into slavery. Peonage could be voluntary as well as involuntary, the difference affecting the origin, but not the character, of the servitude[26]. Consent may be factually relevant in a given case, although it may be necessary to make a closer examination of the circumstances and extent of the consent relied upon, but absence of consent is not a necessary element of the offence. On the point left open by the Appeals Chamber, it should be concluded that, for the purpose of s 270.3(1)(a) of the Code, the commodification of an individual by treating him or her as an object of sale and purchase, if it exists, is a material factor when a tribunal of fact comes to assess the circumstances of a case, and may involve the exercise of a power attaching to a right of ownership. Having regard to all those matters, there was in the present case evidence to go to a jury that was capable of sustaining verdicts of guilty.

The Court of Appeal quashed the respondent's convictions, and ordered a new trial, substantially upon a single ground of criticism of the primary judge's directions to the jury. The point on which the Court of Appeal differed from the primary judge comes down to a question of the application of the provisions of Ch 2 of the Code to charges of breaches of s 270.3(1)(a). Before turning to those provisions, it is convenient to set out what was said in the Court of Appeal by Eames JA, with whom Maxwell P and Buchanan JA agreed.
Eames JA described as "the critical issue" one that "concerns the character of the exercise of power by the accused over the victim." He said that the prosecutor's argument and the trial judge's directions "did not, in terms, [invite or] direct the jury to consider the subjective intention of the [respondent] - her state of mind - when dealing with the complainants." This, he said, "was a critical element of the offence that had to be established if the [respondent] was to be convicted." The jurors, Eames JA held, "were not alerted as to the relevance, when considering the question of intention, of the belief which the [respondent] may have held as to the basis on which she was dealing with each of the complainants." What his Honour understood to be the relevance of that belief was made clear in his reasons. The primary judge had told the jury that, in order to convict, they had to find that the complainants were slaves in accordance with the statutory definition as he explained it to them, that the respondent knew the facts that brought the complainants within that definition (although not that she was aware of the legislation, or the legal definition of slavery) and that she intended to possess or use persons in the condition disclosed by those facts. (It may be noted that the elements of the offence as explained by the primary judge in his directions were somewhat similar to what the Trial Chamber in Kunarac identified as the actus reus and the mens rea for the crime of enslavement.)
Eames JA said that the critical element of the offence of possessing a slave, missing from the primary judge's directions, was "[the respondent's] appreciation of the character of her own actions" (emphasis added). He described the element as follows (references omitted):

This cannot be accepted. What the respondent knew or believed about her rights and entitlements as an employer or contractor, as distinct from rights of property, in the perhaps unlikely event that she knew or believed anything on that subject, was not something that the prosecutor had to establish or that the jury had to consider.
It seems likely that the Court of Appeal was, with good reason, concerned about a problem presented by s 270.3(1)(a), at least in a borderline case: how is a jury to 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. The answer, however, is not to be found in the need for reflection by an accused person upon the source of the powers that are being exercised. Indeed, it is probably only in a rare case that there would be any evidence of such consideration.
It should also be noted that the concluding words of the definition of slavery in s 270.1 of the Code show that the existence of a contract between an alleged offender and a complainant is not inconsistent with the commission of an offence. The legislation, in terms, accepts that a condition of slavery may result from a contract. The above reasoning appears to construct a false dichotomy between employment and effective ownership, in addition to importing a requirement of rights analysis by the offender which is unnecessary.
Chapter 2 of the Code does not provide support for the Court of Appeal's reasoning. In the case of both of the offences alleged in relation to each complainant, the physical element of the offence was conduct, which is defined to include both an act and a state of affairs. It was not suggested by the Court of Appeal that recklessness, as the default element in relation to circumstances, had a role to play[27]. As Brennan J pointed out in He Kaw Teh v The Queen[28], having something in possession is more easily seen as a state of affairs that exists because of what the person who has possession does in relation to the thing possessed. Both possessing a slave and using a slave are conduct, and the prosecution had to establish the existence of the conduct and one of the fault elements specified in s 5.1(1). The prosecution case was conducted on the basis that the relevant fault element was intention. In a footnote earlier mentioned, Eames JA said that all of sub-ss (1), (2) and (3) of s 5.2 were relevant. This is not easy to understand: sub-s (1) applies where the physical element is conduct; sub-s (2) applies where the physical element is a circumstance; sub-s (3) applies where the physical element is a result. Section 4.1 says a physical element may be conduct or a result of conduct or a circumstance in which conduct or a result of conduct occurs.
The physical element was conduct (which includes a state of affairs); the fault element was intention. It was, therefore, s 5.2(1) that was relevant. A person has intention with respect to conduct if he or she means to engage in that conduct. Knowledge or belief is often relevant to intention[29]. If, for example, it is the existence of a state of affairs that gives an act its criminal character, then proof of knowledge of that state of affairs ordinarily will be the best method of proving that an accused meant to engage in the proscribed conduct.
The terms of s 270.3(1) reinforce the conclusion that intention is the relevant fault element. The offences in question were of intentionally possessing a slave or intentionally exercising over a slave another power (here, using) attaching to the right of ownership. It is agreed on all sides that it was unnecessary for the prosecution to prove that the respondent knew or believed that the complainant was a slave, or even that she knew what a slave was. Thus, Eames JA said that the respondent "does not have to have known the definition of a slave, nor even that there was an offence of slavery". So much is uncontroversial. If a person is known by an accused to possess the qualities that, by virtue of s 270.1, go to make that person a slave, then the state of knowledge relevant to intention, and therefore intention itself, may be established regardless of whether the accused appreciates the legal significance of those qualities. An accused does not have to know anything about the law in order to contravene s 270.3(1)(a).
Insofar as a state of knowledge or belief is factually relevant to intention as the fault element of the offence, it is knowledge or belief about the facts relevant to possession or using, and knowledge or belief about the facts which determine the existence of the condition described in s 270.1. This is a condition that results from the exercise of certain powers. Whether the powers that are exercised over a person are "any or all of the powers attaching to the right of ownership" is for a jury to decide in the light of a judge's directions as to the nature and extent of the powers that are capable of satisfying that description. This is not to ignore the word "intentionally" in s 270.3(1). Rather, it involves no more than the common exercise of relating the fault element to the physical elements of the offence[30].
In this case, the critical powers the exercise of which was disclosed (or the exercise of which a jury reasonably might find disclosed) by the evidence were the power to make the complainants an object of purchase, the capacity, for the duration of the contracts, to use the complainants and their labour in a substantially unrestricted manner, the power to control and restrict their movements, and the power to use their services without commensurate compensation. As to the last three powers, their extent, as well as their nature, was relevant. As to the first, it was capable of being regarded by a jury as the key to an understanding of the condition of the complainants. The evidence could be understood as showing that they had been bought and paid for, and that their commodification explained the conditions of control and exploitation under which they were living and working.
It 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, although it is interesting to note that, in deciding to order a new trial, the Court of Appeal evidently took the view that the evidence was capable of satisfying a jury, beyond reasonable doubt, of the existence of the knowledge or belief that the Court of Appeal considered necessary.
The ground on which the Court of Appeal regarded the primary judge's directions as inadequate has not been sustained.

Notwithstanding that these are criminal proceedings, the appellant, on the hearing of the application for special leave to appeal, undertook to pay the costs of the respondent of the application for special leave to appeal and of the appeal to this Court. Consistently with that undertaking, the Court should order that the appellant pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.
There was also an application to the Court of Appeal for leave to appeal against sentence. Because the Court of Appeal allowed the appeal against conviction, it did not deal with the matter of sentence. The matter should be remitted to the Court of Appeal for its consideration of the application for leave to appeal against sentence.
GUMMOW J. I agree with the orders proposed by the Chief Justice and with his Honour's reasons. I agree also with the reasons of Hayne J.
KIRBY J. These proceedings arise out of convictions entered against Wei Tang ("Ms Tang") following jury verdicts. The convictions are said to be the "first convictions in Australia" of "slavery offences" contrary to s 270.3(1)(a) of the Criminal Code (Cth) ("the Code")[32]. These offences are found in Ch 8 of the Code dealing with "Offences against humanity".
Ms Tang sought, and obtained, leave to appeal against her convictions to the Court of Appeal of the Supreme Court of Victoria[33]. That Court, whilst rejecting her submission that verdicts of acquittal should be entered, set aside the convictions and ordered a retrial of the charges[34].
The prosecution, by special leave, has appealed to this Court seeking restoration of Ms Tang's convictions. For her part, Ms Tang has sought special leave to cross-appeal on three grounds. If successful on the cross-appeal, Ms Tang again seeks the substitution of verdicts of acquittal.
The other members of this Court[35] have concluded that the prosecution is entitled to succeed; its appeal should be allowed; the convictions of Ms Tang should be restored; and the cross-appeal rejected. I agree with most of their reasons. However, upon what Eames JA, in the Court of Appeal, described as "the critical issue" in the proceedings[36], I disagree with my colleagues. On that issue, in effect, I concur in the approach and conclusion expressed in the Court of Appeal by Eames JA (with whom Maxwell P and Buchanan JA agreed without additional reasons[37]).
The "critical issue" concerns the accuracy and adequacy of the directions given to the jury at the second trial of Ms Tang. (In the first trial, the jury failed to agree on verdicts in relation to Ms Tang[38].) The controversial point involves the meaning and application of the provisions of the Code that define the offences with which Ms Tang was charged and the content of the "fault elements"[39] (relevantly the "intention" aspect) necessary to constitute those offences. It concerns what the trial judge was obliged to tell the jury in that respect about the law governing these offences.
I concede that there is room for differences of opinion on the issue that separates my opinion from that reached by the majority in this Court. Such differences may arise because of the difficulties in interpreting the novel provisions of the Code[40]; the absence of earlier explorations of those provisions by appellate decisions[41]; the necessary interaction of the applicable Australian law with the relevant provisions of international law - in particular, the Convention to Suppress the Slave Trade and Slavery ("the 1926 Slavery Convention")[42] and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ("the 1956 Supplementary Convention")[43]; and the mass of evidentiary material from the lengthy trial of Ms Tang. Such evidence was relevant for two purposes: first, as to the quality of the relationship between Ms Tang and the five women ("the complainants") whom she was charged with possessing as "a slave" or using as "a slave" contrary to s 270.3(1)(a) of the Code; and secondly, as to the suggested "fault element" ("intention") that the prosecution was required to prove in order to secure convictions[44].
Whilst I agree that the other challenges mounted for Ms Tang fail, in my opinion the approach of the Court of Appeal to the "critical issue" was correct. That approach is more consonant with:

The first question was asked on the first day of the jury's deliberations (after a charge that had proceeded over three days). The question was presented after the jury had already been deliberating for five hours. The second question was asked the following afternoon, after the jury had been deliberating for over a day. It will be necessary to return to these developments[52].
For a complete understanding of my reasons, it is essential to appreciate how the questions emerged; the preceding complex and confusing instructions given to the jury on the subject; and the further instruction that followed which, with respect, was partly non-responsive and partly added to the uncertainty and confusion. This is all set out with admirable clarity by Eames JA. If nothing else, it indicates the confusion of the instructions given to the jury on the subject of the intention necessary to justify guilty verdicts; the correct focus that the jury themselves were giving to the "critical issue"; and thus the great importance of that issue to their deliberations in the forensic circumstances of the second trial.
The successive questions from the jury indicate the significance that they were assigning to the quality and content of the "intention" of Ms Tang which the prosecution had to prove to secure guilty verdicts. The length of the jury's deliberations and their repeated questions on this issue also indicate (correctly in my view) that this jury, like the earlier jury in the first trial, did not find reaching their verdicts in these proceedings an easy task, considering the way in which the evidence emerged in the second trial.
In these reasons, I incorporate by reference the chronicle set out by Eames JA in the Court of Appeal. This includes the lengthy directions given to the jury about the meaning of the words "possession" and "use" of a "slave", contrary to the Code; the jury's successive questions; the supplementary directions then given by the trial judge; and the further supplementary directions given after trial counsel for Ms Tang took exception to aspects of the judge's first attempt[53].
Although additional reference will be made below to these questions and the resulting redirections, because mine is a minority opinion in this Court, I will not set the passages out seriatim. They are not set out in other reasons. Nevertheless, to understand the conclusion that Eames JA and the other members of the Court of Appeal reached, it is essential to appreciate the deficiencies in the directions given to the jury on the critical subject of "intention". No other course would do justice to Ms Tang's case or to the Court of Appeal's analysis.
Evidence against statutory slavery: Allowing, for the moment, that the Code expands somewhat the traditional definition of "slavery" in international law (and in more recent times under the 1926 Slavery Convention and the 1956 Supplementary Convention), and that it may do this in Australia in conformity with the Constitution, there was certainly evidence before the jury in the second trial that, in combination, could have supported the acquittal of Ms Tang:

The issue defined: The issue that divides this Court is whether, in the second trial, the trial judge gave sufficiently accurate and clear directions to the jury on the ingredients of the offences with which Ms Tang was charged.
Juries cannot be expected to know the law. They must rely on the judge, presiding in the trial, to explain to them, accurately and clearly, the legal ingredients of the offences with which the accused stands charged and of any defences that arise for consideration. It is not the duty of the judge to give the jury a general disquisition on the law or to burden them with immaterial or unnecessary directions[104]. However, unless the charges are explained to the jury accurately and clearly, with assistance on the application of the law to the facts as appropriate, a fundamental assumption of trial by jury is undermined.
As the Court of Appeal pointed out, the "trial judge had the misfortune to be the first judge in Australia called on to devise directions for these novel offences"[105]. This is a reason to avoid overly pernickety approaches to Ms Tang's challenge to those directions. But it cannot be a reason for denying Ms Tang an accurate trial that conforms to the law as stated by the Parliament.
The matter that concerned the Court of Appeal was the explanation given by the trial judge "as to the elements of the offences created by s 270.3(1)(a)". Relevantly, that issue concerns the character and quality of the exercise of power by the accused over the victim who is alleged to be a "slave"[106]. In the Court of Appeal, Eames JA, a judge with much experience in criminal trials and law, concluded that the approach urged by the prosecution, and adopted by the judge at the trial, "did not correctly identify the elements of the offences which the [prosecution] had to establish". Specifically, by reference to s 5.2 of the Code (which contains the explanation of the general principles of criminal responsibility in respect of "intention"), Eames JA concluded that, to make good the offences in s 270.3(1)(a), the prosecution had to prove the following against Ms Tang[107]:

I do not take there to be a present dispute concerning the first three "elements of the offences" identified in the foregoing passage. There was also no disagreement over the trial judge's direction to the jury that it was not essential that Ms Tang should know that the "worker" was, in law, a "slave". Although ignorance of the law is no excuse, the provisions of s 270.3(1)(a) of the Code do not postulate that a person, such as Ms Tang, will necessarily be aware of the categories and classifications of Australian law. Still less would such a person be expected to know the provisions of an international treaty dating back to 1926. The Code, however, is intended to bring proved "physical" and "fault" elements together in particular evidentiary circumstances to render a person answerable for "criminal responsibility under laws of the Commonwealth"[108]. This befits a contemporary federal statute that imposes criminal liability on people for their acts and omissions within Australia.
The basic reason for adopting this view arises from the language and structure of the Code itself. That is the starting point for an analysis of the offences with which Ms Tang was charged. However, there are several other reasons that support the approach to the construction of the Code adopted by the Court of Appeal. In the balance of these reasons, I will explain what I consider to be the most important arguments favouring the approach that the Court of Appeal adopted.
Analysis of the statute: Relevant here are not only the "slavery offences" with which Ms Tang was charged under s 270.3(1)(a) of the Code but also the more general "physical" and "fault" element provisions under Ch 2 of the Code. These latter elements are declared by the Parliament to be necessary in Australia for criminal responsibility under federal law[109].
The starting point is the structure of s 270.3(1). In expressing the relevant "slavery offence", the word "intentionally" is placed in the chapeau, above the particular offences that follow. These include the provisions of par (a) under which Ms Tang was charged. By the ordinary application of the principles of statutory construction, it must therefore be accepted that the adverb "intentionally" was designed to modify the entirety of the subsequent paragraphs. Thus, it is not enough for the accused to "possess" a slave or to "exercise" 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".
That paragraph contains descriptors of "physical elements", such as "possessing" a slave or "exercising" powers "attaching to the right of ownership" over a slave. However, the general principles of criminal responsibility contained in Ch 2 of the Code also make it clear that such "physical elements" alone are not sufficient to secure a conviction. There must be a relevant combination of both "physical" and "fault" elements. In the present appeal (as was properly acknowledged by the prosecution in its conduct of Ms Tang's trial) it was common ground that the applicable "fault element" was the "intention" of the accused. This is clear enough because of the inclusion of the adverb "intentionally" in the chapeau to s 270.3(1).
Where "intention" is the applicable "fault element", as here, s 5.2(1) of the Code provides that "[a] person has intention with respect to conduct if he or she means to engage in that conduct". Quite apart from the introductory adverb in the language of s 270.3(1) of the Code, it is clear that the prosecution must prove beyond reasonable doubt that the accused had the "intention" to engage in the relevant conduct. Thus, in a case brought under s 270.3(1) of the Code, the "intention" is not simply an "intention" addressed to the "physical elements" concerned with "possession" or the exercise of powers attaching to the "right of ownership". It is also an intention directed to the underlying entitlement that gives rise to those elements. Without that ingredient of the offence, the word "intentionally" might just as well not have been present in s 270.3(1).
In effect, the construction urged by the prosecution (and now adopted by this Court) either ignores the word "intentionally" at the head of the sub-section or treats it as relevant only to the physical elements involved in the treatment of a person. It does not, as s 270.3(1)(a) indicates by its language and structure, also govern the quality and character of those physical elements so that they amount, in law, to "possession" or to "exercis[ing] over a slave any of the other powers attaching to the right of ownership".
Paragraph (a) of s 270.3(1) of the Code uses legal notions such as "possession" and "rights of ownership" preceded by the statutory requirement that such "physical elements" should be exercised "intentionally". This imports into the constituent elements of the offences charged an appreciation, belief or realisation by the accused ("intentionally") of the entitlement to assert the "physical elements" that go to make up the offences.
Relevant canons of construction: A fundamental canon of construction that supports the Court of Appeal's approach is reflected in the acknowledgment, in extrinsic statutory material, that[110]:

To exercise such a power, as if over property that the person owns or possesses, it is inherent that the person deploying that power does so based upon a notion of that person's entitlement to act as he or she does. What is done is not done mindlessly, thoughtlessly or carelessly. It is done out of a sense of power, founded on a sense of entitlement. Thus the language and structure of the legislation, and the terms of the Explanatory Memorandum, support the approach of the Court of Appeal. And basically that is enough.
Two additional considerations further reinforce the conclusion adopted by the Court of Appeal. The first, which Eames JA noted[111], is that the Code comprises penal legislation which is conventionally construed strictly because of the consequences of serious punishment that may follow from a conviction[112]. To the extent that there is any residual doubt about the meaning and requirement of the provisions of the Code to Ms Tang's case, the Court of Appeal adopted such an approach and that approach is to be preferred.
Secondly, the introduction of "slavery offences" into the Code enacted novel crimes that have to be read together with general principles of the Code governing criminal responsibility. Those principles are, in turn, in some ways new. They must be given meaning according to their terms and in consideration of the context and purpose of the reforms they introduce. Nevertheless, these provisions are themselves written against the background of the basic doctrines of criminal law as they operate throughout Australia. It will generally be presumed that the language of a code that is designed to state criminal offences applicable in Australia is intended generally to reflect, and not to depart from, long-observed basic principles of criminal liability[113].
With respect, it is not persuasive to suggest[114] that the approach favoured by the majority is supported by the "common exercise of relating the fault element to the physical elements of the offence"[115]. The ultimate duty of this Court is to construe the language of the Code[116]. This must be done by reference to the text of the Code and a consideration of the context of the relevant provisions and their purpose of expressing a new approach to the application of the "fault elements" of federal offences. When this approach is adopted, the language of the Code, and especially the structure of the provisions in which that language appears (the chapeau of s 270.3(1)), argue powerfully against the conclusion reached by the majority. This approach instead supports the analysis adopted by the Court of Appeal.
In any case, when considering basic principles of criminal law, one such principle is the common law presumption that no person will be punished criminally "for doing an act which he honestly and reasonably believes to be lawful and right"[117]. To the extent that they are consistent with the Code, fundamental principles of criminal responsibility inform the construction of such statutory provisions[118]. It would require very clear statutory language to render the mere performance of an act criminally blameworthy, without regard being had to the "golden thread"[119] which has been present in Australian (and earlier English) criminal law for at least seventy years. In the present case, this is not to oblige (in effect) that the accused should know the precise terms of the statute or of antecedent treaties. It is simply to apply the statutory postulate of "intention" not only to the physical elements but also to their quality and the "circumstances [that] make [them] criminal"[120].
General considerations such as these[121] confirm the conclusion of the Court of Appeal in this case. The mere existence of what the Code now describes as "physical elements" (relevantly "possession" and "the right of ownership") does not, on conventional theory, ordinarily attract criminal liability to a person accused in Australia of a serious criminal offence. Something more is required. That something is the "mental element" (mens rea as formerly described) on the part of the accused, or as is now described in the Code, the "fault element". This element is essential to constitute, with a "particular physical element", responsibility in law for an offence against federal criminal provisions.
The Court of Appeal's approach gives full force and effect to these basic notions of our criminal law. So much is required by the language and structure of the Code. However, if there were any ambiguity, this is the approach that this Court should take. It conforms more closely to the "general principles of criminal responsibility" expressed in Ch 2 of the Code and also in the basic doctrines of contemporary Australian criminal law. It is against this background that the Code provisions were formulated and enacted.
Further considerations in support: A number of additional considerations lend still further support to the approach adopted by the Court of Appeal.
Traditional approach to "intention": Having something in "possession" (or asserting over something "powers attaching to the right of ownership") will not ordinarily render a person liable for a criminal act unless the mind ("intention") of the person combines with the physical elements. Take, for example, someone who carries a suitcase containing a prohibited drug over a border. The physical elements involved in such "possession" of that drug (or the assertion of powers attaching to the "right of ownership" over the suitcase) would not, on conventional theory, alone be sufficient to render the carrier criminally liable. The prosecution would have to identify and prove that the accused was aware of the nature and quality of the control asserted over the import in question. It is not enough that the suitcase should, in physical fact, contain a prohibited drug. The prosecution must establish, to the requisite standard, that the accused knew that the drug was present and intended to perform the physical acts amounting to a criminal importation[122].
Innocent parties fall outside the ambit of the offences provided by s 270.3(1) of the Code. This is precisely because the requirement of "intentionally", as expressed in the chapeau to the sub-section, imports a necessity of consciousness of the quality, source and purported basis or justification of the "possession" and "right of ownership" being asserted. All of this is simply to insist that, under the Code, as conventionally at common law, the mere acts of "possession" or "ownership" alone are not enough to constitute the criminal offence. The necessary added ingredient is the presence of the intention to which s 270.3(1) refers, addressed to the quality and character of the acts charged.
The Court of Appeal correctly insisted upon the necessity of this ingredient. Correctly, it concluded that its absence from the directions of the trial judge to the jury constituted a serious omission in explaining to the jury the legal components of the offences charged.
Conformability with international law: The present task is to construe and apply the Code, an Australian statute. However, the ostensible purpose of the relevant provisions was to introduce into Australian municipal law offences derived substantially from the 1926 Slavery Convention.
The interpretation of s 270.3(1) favoured by the Court of Appeal is more consonant with that Convention and the extremely grave international crime that "slavery", so expressed, involves. As stated in the Code[123], slavery, like piracy[124], is a crime against humanity[125]. Thus those who engage in "slavery", piracy and other special crimes are enemies of mankind[126]. Such offences arguably attract obligations that attach to crimes of universal jurisdiction[127]. As a rule jus cogens[128], slavery is prohibited as a peremptory norm from which no derogation is permitted[129]. This further reinforces the seriousness of slavery and hence the need to define it very carefully and precisely.
I therefore agree with Gleeson CJ that, without the clearest statutory authority, it is undesirable to banalise slavery crimes by applying them to circumstances that would amount to no more than a seriously exploitative employment relationship[130]. The approach of the Court of Appeal requires consideration by the decision-maker of the quality and extent of the accused's "intention". To that extent, in asserting "possession" and "rights of ownership" over another person as a "slave", the crimes provided by s 270.3(1) are reserved to indisputably serious offences containing a substantial, not trivial, intention element.
To the extent that the intention element is restricted to conduct in relation to a person, with no attention being given to the perpetrator's intention, there is a serious risk of over-expansion of the notion of "slavery". The approach of the Court of Appeal is more rigorous. Such rigour is more appropriate to a crime defined by reference to the universal international offence of "slavery".
Consistency with severe punishment: All of the foregoing is yet further reinforced by a reflection upon the maximum penalty that the Code provides upon conviction of the s 270.3(1) slavery offences.
The maximum penalty of imprisonment for twenty-five years[131] is one of the highest now provided under Australian legislation. This feature helped to reinforce the conclusion of the Court of Appeal that the applicable "fault element" of "intention" should apply in the manner adopted by Eames JA[132]. His Honour remarked[133]:

None of the states mentioned above have implemented the Convention in a similar way to that of the Code here. This affords a further reason why, in respect of the "slavery offences" in s 270.3(1)(a) of the Code, this Court should adopt the more stringent requirement of proof of intention favoured by the Court of Appeal. Doing so would ensure that Australian law remained in broad harmony with the law of similar countries. Especially in relation to crimes having a universal or transnational character, that is a proper interpretive consideration.
Shift in law on sex work: As to the extension of "slavery" to adult consensual participation in the commercial sex industry, it is also important for courts such as this to give due weight to recent changes in Australian law (including in Victoria). Those changes reflect a recognition by Parliament that adults (as the prosecution conceded before this Court) are entitled to participate in the sex industry lawfully. This includes participation as sex workers, consensually, for economic reasons. Attempts to use "slavery offences" to suppress commercial sex work, based upon individual repugnance towards adult sexual behaviour, potentially contradict the law enacted by the Victorian Parliament. The simple fact is that some commercial sex workers have no desire to exit the industry. Some people may find that shocking; but it matters not. In Victoria, so long as the sex worker is a consenting adult with no relevant disability, that is a choice open to her or him. The contrary approach risks returning elements of the sex industry to operate, as was previously the case, covertly, corruptly and underground. This would undermine the fundamental objectives of the recent Australian legislation in this area, such as that of Victoria under which the brothel where the complainants worked was licensed[140].
Such developments could also prove counterproductive to important purposes of the recent legislation. Specifically, such purposes include empowering sex workers to safeguard their own lives and wellbeing and thereby assisting in the reduction of the spread of sexually transmitted diseases, including the human immunodeficiency virus[141]. These policy considerations (although not mentioned by the Court of Appeal) offer additional reasons of legal principle and policy to confine "sexual slavery" offences in Australia to cases where the specific element of "intention" includes exerting powers of possession or ownership over a person because of an established belief, on the part of the accused, that it is his or her right and entitlement to do so.
The jury's repeated questions: The Court of Appeal's approach on this issue was by no means an esoteric one. This is made clear by the questions which the jury in the second trial returned twice to ask. The first question was[142]:

It follows that I agree with Gleeson CJ that special leave to cross-appeal on the first and second grounds in the proposed notice of cross-appeal should be granted. That cross-appeal should be treated as instituted and heard instanter and dismissed. I also agree with Gleeson CJ that special leave to cross-appeal on the third ground in the proposed notice of cross-appeal should be refused.
However, the appeal from the orders of the Court of Appeal of the Supreme Court of Victoria should be dismissed.
HAYNE J. I agree with Gleeson CJ that, for the reasons he gives, the appeal to this Court should be allowed. I also agree with Gleeson CJ that, for the reasons he gives, orders should be made granting the respondent special leave to cross‑appeal, limited to the first two proposed grounds of cross‑appeal, but dismissing the cross‑appeal. I agree that consequential orders should be made in the form proposed by Gleeson CJ.
Section 270.3(1)(a) of the Criminal Code (Cth) ("the Code") makes it an offence intentionally to possess a slave or to exercise over a slave "any of the other powers attaching to the right of ownership". The central issue in the appeal concerns what directions should have been given to the jury at the respondent's trial about the mental element of the offences of possessing or using a slave. I agree with Gleeson CJ that, contrary to the holding of the Court of Appeal[148], the prosecution did not have to prove that the respondent had any knowledge or belief about the source of the powers she exercised over the complainants. What was to be proved was the intentional possession and use of each complainant as a slave, which is to say as a person over whom any or all of the powers attaching to the right of ownership were exercised.
I agree with what Gleeson CJ has said about the application of Ch 2 of the Code to s 270.3(1). The relevant fault element of each of the offences with which the respondent was charged was intention[149]. The conduct, which is to say the act or state of affairs[150], in question in this matter was possessing a slave or using a slave. To establish the relevant fault element in this case it was necessary to show that the respondent meant to engage in the conduct, in respect of each complainant, of exercising powers attaching to the right of ownership.
The remaining part of these reasons is directed to the meaning, and application in this case, of the terms "slavery" and "slave" when used in the relevant provisions of the Code. "Slavery" is defined[151] as follows:

As Gleeson CJ has pointed out, the definition of "slavery" in the Code derives from, but is not identical with, the definition of "slavery" in Art 1(1) of the 1926 International Convention to Suppress the Slave Trade and Slavery[152]. Because the purpose of the Convention was to suppress the slave trade and slavery it was directed to both the status of slavery and the condition of slavery. The status of slavery, in the context of the Convention, is to be understood as referring to a legal status created by or recognised under relevant municipal law. By contrast, the condition of slavery is to be understood as referring to a factual state of affairs which need not, but may, depend upon recognition by the relevant municipal legal system. Yet both that status and that condition were defined in the Convention in identical terms: as a status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
The language of the Convention, whether in its definition of slavery or otherwise, cannot be read as if it gave effect to or reflected particular legal doctrines of ownership or possession developed in one or more systems of municipal law. Nothing in the preparatory materials relating to the Convention suggests that it was intended to embrace any particular legal doctrine of that kind and the text of the Convention itself does not evidence any such intention. Rather, slavery (both as a legal status and as a factual condition) was defined only by a description that assumed an understanding, but did not identify the content, of "the powers attaching to the right of ownership". Yet for the purposes of creating particular norms of individual behaviour enforceable by application of the criminal law, the definition of "slavery" that is adopted in s 270.1 of the Code takes as its origin the definition of slavery, as a condition, that was given in the Convention.
What are the "powers attaching to the right of ownership"? How are they to be identified when the Code is applied, given that the Convention did not use the term "ownership", or the expression "powers attaching to the right of ownership", with a legal meaning that was anchored in any particular legal system? Both "ownership" and the "powers attaching to the right of ownership" must be understood as ordinary English expressions and applied having regard to the context in which they are to be applied. The chief feature of that context is that the subject of "ownership", the subject of the exercise of "powers attaching to the right of ownership", is a human being.
Because "ownership" cannot be read in s 270.1 of the Code as a technical legal term whose content is spelled out by a particular legal system, it is a word that must be read as conveying the ordinary English meaning that is captured by the expression "dominion over" the subject matter. That is, it must be read as identifying a form of relationship between a person (the owner) and the subject matter (another person) that is to be both described and identified by the powers that the owner has over that other.
"Ownership" ordinarily is to be understood as referring to a legal relationship between owner and subject matter. An "owner" has an aggregation of powers that are recognised in law as the powers permissibly exercised over the subject matter[153]. It is a term that connotes at least an extensive aggregation of powers, perhaps the fullest and most complete aggregation that is possible. But s 270.1 cannot be read as requiring the identification of an aggregation of powers that the law permits to be exercised over a person because Australian law does not recognise, and never has recognised, the possibility that one person may own another. There is not, and never has been, legal endorsement in Australia for the creation or maintenance of such a concentration of legally recognised powers in one person over another as would amount to "ownership" of that person. In particular, Australian law does not recognise, and never has recognised, any right to "possess" a person.
It follows that neither the definition of slavery in s 270.1, nor the references to "a slave" in s 270.3, invite attention to what legal rights the "owner" has over the person who it is alleged is "a slave". Rather, the references in s 270.3(1)(a) of the Code to possessing a slave, and exercising over a slave "any of the other powers attaching to the right of ownership", invite attention to what the alleged offender has done. In particular, what powers has the alleged offender exercised over the person who is alleged to be a slave? And what the alleged offender has done must then be measured against a factual construct: the powers that an owner would have over a person if, contrary to the fact, the law recognised the right to own another person.
As explained earlier, to constitute "ownership", one person would have dominion over that other person. That is, the powers that an owner of another person would have would be the powers which, taken together, would constitute the complete subjection of that other person to the will of the first. Or to put the same point another way, the powers that an owner would have over another person, if the law recognised the right to own that other, would be powers whose exercise would not depend upon the assent of the person over whom the powers are exercised.
How are those abstract ideas to be given practical application? It is convenient to approach that question by reference to the particular allegations in this matter, where it was alleged that the respondent had "possessed" each complainant as a slave and that she had "used" each complainant as a slave.
The first step to take is to recognise that both the offence of possessing a slave, and the offence of exercising over a slave any of the powers attaching to the right of ownership, are cast in terms that appear to present two questions: first, did the accused possess, or exercise some other power attaching to the right of ownership over, the complainant and second, was the complainant a slave? But the two questions merge.
The condition that must be proved is that the person meets the description "a slave". The offence is intentionally to possess a slave or intentionally to exercise over a slave any of certain powers. The condition of slavery (which is what provides the content of the term "a slave") is defined as the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. It thus follows that proof of the intentional exercise of any of the relevant powers over a person suffices to establish both that the victim is a slave and that the accused has done what the legislation prohibits.
The next step to take is to observe that the Code's definition of "slavery" in s 270.1 speaks of "the powers attaching to the right of ownership" (emphasis added). Section 270.3 of the Code shows that possessing a slave is one particular power attaching to the right of ownership. And it is also clear that possessing a slave is not the only power attaching to the right of ownership. So much is made clear by the use of the word "other" in the phrase "other powers attaching to the right of ownership". But s 270.1 does not further identify what those powers are.
As Brennan J said in He Kaw Teh v The Queen[154], "'possession' is a term which implies a state of mind with respect to the thing possessed". In that case, Brennan J identified[155] the actus reus of possession of a prohibited import as being that the object of possession was physically in the custody or under the control of the accused. And as Dawson J pointed out in the same case[156], "[p]ossession may be an intricate concept for some purposes, but the intricacies belong to the civil rather than the criminal law". That is why, in the criminal law, "possession" is best understood as a reference to a state of affairs in which there is[157] "the intentional exercise of physical custody or control over something". In considering s 270.3(1)(a) of the Code, however, it will also be important to recognise that the right to possess a subject matter, coupled with a power to carve out and dispose of subsidiary possessory rights, is an important element in that aggregation of powers over a subject matter that is commonly spoken of as "ownership".
Just as the word "ownership" evokes notions of the dominion of one person over another, to speak of one person possessing another (in the sense of having physical custody of or control over that other) connotes one person having dominion over the other. Or to put the same point in different words, possession, like ownership, refers to a state of affairs in which there is the complete subjection of that other by the first person.
One, and perhaps the most obvious, way in which to attempt to give practical content to the otherwise abstract ideas of ownership or possession (whether expressed by reference to subjection, dominion or otherwise) is to explore the antithesis of slavery. That is, because both the notion of ownership and of possession, when applied to a person, can be understood as an exercise of power over that person that does not depend upon the assent of the person concerned, it will be relevant to ask why that person's assent was irrelevant. Or, restating the proposition in other words, in asking whether there was the requisite dominion over a person, the subjection of that person, it will be relevant to ask whether the person concerned was deprived of freedom of choice in some relevant respect and, if so, what it was that deprived the person of choice. In that inquiry some assistance is to be had from United States decisions about legislation giving effect to the Thirteenth Amendment to the United States Constitution.
Those cases explore what is meant when it is said that a person had no choice but to continue to serve a person accused of holding the first in "involuntary servitude". And they show that a person may be deprived of choice to the requisite extent, not just by force or the threat of force, but also by threats to invoke the proper application of the law to the detriment of the person threatened. But examination of the cases will also show why analysis of who is "a slave" by reference only to freedom or absence of choice of the alleged victim, or by reference only to the nature of the coercion applied by an accused, is not determinative of that question.
The Thirteenth Amendment provides, in s 1, that:

Subsequently, the Supreme Court of the United States held in United States v Kozminski[166] that the use, or threatened use, of physical or legal coercion was essential to proof of involuntary servitude[167]. The Court rejected the view that the statute then in question extended to cases the Court identified[168] as the compulsion of services "through psychological coercion". Such a test was rejected[169] as depending "entirely upon the victim's state of mind". Accordingly, while deprivation of the victim's will was essential, the Court held that the deprivation must be enforced by the use or threatened use of the means identified. But as the reference to "legal coercion" reveals, the Court held that involuntary servitude could be established in cases where the coercion applied was not in itself illegal. Thus, threatening an immigrant with deportation was identified[170] as one possible form of threatened legal coercion.
The discussion in the United States cases reveals three points of immediate relevance to the application of the provisions of the Code in issue in this case. First, they show that some assistance can be obtained in the practical application of the abstract concepts of ownership and possession by considering the antithesis of slavery and asking whether, and in what respects, the person alleged to be a slave was free. But the second point revealed by the United States cases is that to ask whether a person was "free", or to ask the more particular questions of when and how a person was deprived of will or freedom of choice, is in each case a question of fact and degree. And because that is the nature of the question, the answer may often be expressed using some word like "real" or "substantial" to describe the quality of the freedom or the denial of freedom that is identified. The third point that emerges from the United States cases is that to ask whether a person has been deprived of free choice presents two further questions. First there is the question: choice about what? Then there is the question: how is the deprivation effected? The United States cases that have been discussed explore choice about provision of labour, and deprivation by means other than close physical confinement. The detail of that discussion may or may not be immediately relevant to the facts of a case brought under the provisions of the Code that are in issue in this case.
Asking what freedom a person had may shed light on whether that person was a slave. In particular, to ask whether a complainant was deprived of choice may assist in revealing whether what the accused did was exercise over that person a power attaching to the right of ownership. To ask how the complainant was deprived of choice may help to reveal whether the complainant retained freedom of choice in some relevant respect. And if the complainant retained freedom to choose whether the accused used the complainant, that freedom will show that the use made by the accused of the complainant was not as a slave. But it is essential to bear three points at the forefront of consideration.
First, asking what freedom a person had is to ask a question whose focus is the reflex of the inquiries required by ss 270.1 and 270.3 of the Code. It is a question that looks at the person who it is alleged was a slave whereas the definition of slavery in s 270.1 looks to the exercise of power over that person. The question looks at freedom, but the Code requires a decision about ownership.
Secondly, what is proscribed by the Code is conduct of the accused. An absence of choice on the part of the complainant may be seen to result from the combined effect of multiple factors. Some of these, such as the complainant's immigration status or the conduct of third parties, may be present independently of the conduct of the accused. Such factors are part of the context in which the conduct of the accused falls to be assessed. However, it is that conduct which must amount to the exercise by the accused of a power attaching to the right of ownership for the offence to be made out.
Thirdly, because the Code requires consideration of whether the accused exercised any of the powers attaching to the right of ownership, it will be important to consider the particular power that it is alleged was exercised and the circumstances that bear upon whether the exercise of that power was the exercise of a power attaching to the right of ownership. To ask only the general question - was a complainant "free" - would not address the relevant statutory questions.
There were two aspects in the present case that were of critical importance in deciding whether the respondent possessed each complainant as a slave and used each as a slave. There was the evidence that each complainant came to Australia following a transaction described as purchase and sale. There was the evidence of how each complainant was treated in Australia, in particular evidence about the living and the working conditions of each. And a critical feature of that evidence was that each woman was treated as having incurred a debt that had to be repaid by working in the brothel. Although there was evidence that one of the complainants was able to secure a reduction in the amount of her initial debt, there was no satisfactory explanation in the evidence of how the so‑called debt of any of the complainants was calculated, or of what had been or was to be provided in return for the incurring of the obligation. To be put against this evidence about the purchase and sale of the women and their living and working conditions was the concession made by the prosecution at the outset of these proceedings that each complainant came to Australia voluntarily.
The evidence at trial showed that the respondent had bought a "share" in four of the five women. The fifth woman had also been bought by a syndicate but the respondent was not a member of that syndicate.
In argument at trial, and on appeal to the Court of Appeal, there was much attention given to what was meant by "buying" the women or a share in some of them. A deal of that debate appears to have proceeded by reference to a supposed distinction between the respondent buying a contract under which a person agreed to provide services, and buying the person[171]. The distinction asserted depends upon directing attention to the legal rights and duties of the parties affected by the transaction. But it is a distinction that is necessarily flawed. One of the asserted alternatives (buying a person) is legally impossible. It is a transaction that could not give rise to legal rights and duties. To the extent, therefore, that the comparison seeks to direct attention to legal rights and duties, it is of no assistance.
Yet because reference to buying or selling the complainants is to speak of what, in Australian law, is a legal impossibility, the significance that is to be attached to the transaction depends upon what the respondent did. And in that respect, each of the transactions identified as a syndicate "buying" one of the women had to take its significance in a context provided by all of the evidence. The way in which all five women were treated in Australia by setting them to work as they did, on the terms that they did, coupled with the restraints on their movement and freedom of other action, permitted a jury to conclude that what the respondent did, when she took up a "share" in four of the women, was to buy them as if they were articles of trade or commerce and thereafter possess and use them.
In the case of the fifth woman, where the respondent was not a member of the syndicate, the respondent's acceptance of that woman as a worker in her brothel on terms that payments were made to the syndicate members for her services was evidence which, when coupled with the evidence of her working conditions and restraints on movement and freedom, was again capable of demonstrating to a jury's satisfaction that the respondent possessed her as if she were an article of trade or commerce that others had bought and sold, and that the respondent thereafter possessed and used her. That is, what was done with respect to the fifth of the complainants could be understood as her "owners" giving the respondent the right to possess her and use her. Those who exercised over the fifth complainant the powers attaching to the right of ownership carved out of that "ownership", and disposed of to the respondent, subsidiary possessory "rights" over the woman.
What permitted the conclusion, in respect of each complainant, that she had been bought and sold as if an article of trade or commerce and thereafter possessed and used by the respondent, was the combination of the evidence about the treatment of each in Australia with the evidence of sale and purchase in Thailand. The respondent's use of each woman in the respondent's business, coupled with the restraints on the freedom of action of the complainants, permitted the conclusion that the reference to their sale and purchase was an accurate reflection of the relationship that the respondent was to have with each complainant. That relationship was to be one in which the respondent was to have the possession and use of each as if the respondent owned her.
Accepting, as the prosecution did at the outset of the trial, that each of the women came to Australia voluntarily did not preclude the conclusion that each was possessed and used by the respondent as if owned by her. Taking the concession at its highest (that each woman had consciously, freely and deliberately submitted herself to the conditions that she encountered in Australia), the evidence permitted the jury to conclude that none of the women thereafter retained any freedom to choose what was done with them in Australia. The practical impediments and economic consequences for each woman, if she refused to complete her performance of the arrangement, were such as permitted the jury to conclude that, if there were choices to be made about those matters, they were to be made by others. In this case the evidence permitted the conclusion that the respondent used and possessed each complainant as a slave because it permitted the conclusion, in each case, that the respondent used and possessed the complainant as an item of property at the disposal of those who had bought the complainant regardless of any wish she might have.
There is one further point to make about the evidence of purchase and sale. There was no evidence at trial about the circumstances in which the transactions were made. In particular, there was no evidence of how it came about that the "vendor" asserted the right to make the sales that were made. Exploration of those matters would very likely have cut down, even eliminated altogether, the notion that the women came to Australia voluntarily. Not least is that so because it is possible, even probable, that examination of those matters would reveal not just great disparities of knowledge and power as between the "vendor" and each of the women concerned, but other circumstances touching the reality of the assent which it was accepted each had expressed. But assuming that each of the women was to be taken to have voluntarily agreed to be the subject of sale and purchase, her assent does not deny that the result of the transaction to which each agreed was her subjection to the dominion of her purchasers.
It was open to the jury at the respondent's trial to find that each complainant was a person over whom was exercised, by the respondent, one or more powers attaching to the right of ownership. The respondent's appeal to the Court of Appeal of Victoria against her convictions should have been dismissed.
HEYDON J. I agree with both Gleeson CJ and Hayne J.
CRENNAN J. I agree with the orders proposed by the Chief Justice, for the reasons given by his Honour. I agree also with the reasons given by Hayne J for concurring in those orders.
KIEFEL J. I agree with Gleeson CJ and with Hayne J.

The Queen v Tang

At a glance

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Before

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Source

Catchwords

Judgment (268 paragraphs)

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Legislation Cited (5)

Cases Cited (55)

Cited By (6)