The rights of slave-owners

In its last gasp, the Gleeson Court today gave a wide reading to a law aimed at furthering this right:

11(1) A person must not be held in slavery or servitude.
(2) A person must not be made to perform forced or compulsory labour.

Although The Queen v Tang [2008] HCA 39 was about events in Victoria, this was no Charter case but rather the application of federal criminal law. The court gave a broad reading to this definition:

270.1 For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.

The Court unanimously held that the ‘condition’ of slavery doesn’t require any de jure ownership of a person (which is impossible in Australia, and indeed most places), but rather de facto ownership. In particular, it was capable of covering the sitution in this case, where Thai prostitutes had their freedom of movement severely restricted by a combination of social isolation, fear of deportation, continual surveillance and an onerous debt to be paid off by prostitution. A similar reading would presumably be made of ‘slavery’ in Charter s. 11(1) (although the other terms of Charter s. 11 would presumably have filled any shortfall in that term.)

But the real interest of the case isn’t the definition of ‘slavery’ or ‘slave’, but rather the definition of a slave-‘owner’. Under Commonwealth law, that depends on this criminal offence:

270.3 (1) A person who, whether within or outside Australia, intentionally: (a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership… is guilty of an offence.
Penalty: Imprisonment for 25 years.

Wei Tang, the owner of a Fitzroy brothel, Club 417, was found by a jury to have either possessed or used five prostitutes, in the case of four by virtue of her ownership of a share of the debt each was considered to owe to the smugglers who brought them to Australia, and in the case of the fifth by her use of her as a worker at her brothel (although her debt was owned by others.)

So, Tang did things that brought her within the definition of a slave-owner. But did she have the mind of a slave owner? The jury weren’t sure, asking two questions of the trial judge:

Does the defendant have to have known what the definition of a slave is ‘to intentionally possess a slave’ as stated in the indictment?

This has an easy answer: no. Criminal responsibility isn’t a matter of how the law is going to characterise partiular facts, but rather knowing what those facts are. The jury’s second question was:

To intentionally possess a slave is it necessary for the accused to have knowledge that her actions amount to slavery? or Is it sufficient that the accused only have knowledge of the conditions she has imposed (ie slavery has not entered her mind) and the law has decided those conditions amount to slavery.

This question is different to the last one, because it’s about Tang’s conduct, rather than about things external to Tang (like the characteristics of the prostitutes in her brothel.) Nevertheless, you might think that it has the same answer as the last one – that Tang doesn’t have to know how the law would characterise her actions, just what her actions are – and you’d be right. But the jury’s question touched on a tricky issue about criminal responsibility: that our responsibility for our conduct is not just a matter of awareness of facts, but of intention. (And, can I just say, boy this is a sharp jury!)

The Criminal Code defines intention as follows:

5.2(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

The Victorian Court of Appeal held that Tang’s conviction couldn’t stand, because the jury were only told to assess Tang’s awareness of facts, but not what she meant by her actions. The Court of Appeal said that the jury should have been told:

[T]he Crown must prove that in exercising the relevant power over a particular complainant (that is, possessing or using the complainant) the accused was treating that complainant as though she was property, as if she owned her, as if she could do with her whatever she chose to do. You must be satisfied that the accused was intentionally exercising a power that an owner would have over property and was doing so with the knowledge or in the belief that the complainant was no more than mere property.

If it is reasonably possible that the accused acted to possess or to use the complainant with the knowledge or in the belief that she was exercising her rights and entitlements as her employer or contractor and not in the belief that the complainant had no rights or free will, but was property, a thing, over whom she could exercise power as though she owned her then, however exploitative and unfair you may think her treatment of the complainant was, it would not constitute the offences of intentionally possessing or using a slave.

Clearly, this direction would have involved, not only Tang’s sensory perceptions of what she was doing, but her attitude towards it. Was she thinking like a slave-owner?

In today’s judgment, the High Court re-instated Tang’s conviction, rejected the Court of Appeal’s argument and effectively ruled that anyone who knew that a person was a slave could be a slave-owner, by virtue only of their actions, and not their attitudes. Gleeson wrote:

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.

This approach, which was supported by five other judges (guess who the sixth one was!), is an example of the High Court’s classic approach to criminal responsibility, which involves reducing it down to the simplest possible tests of what a defendant perceived about physical facts, rather than more complex mental analysis about the value judgments defendants make or the attitudes they have. That same approach was used in the 1980s to dramatically simplify murder law as largely about knowledge of facts, rather than more complex notions like malice. Such simplicity dramatically benefits lawyers, judges, jurors and law students (and teachers), but it is achieved at a cost of much less subtlety in the criminal law. (This was a matter lamented by Deane J in the only such judgment he was involved in. Interestingly, the Gleeson Court’s other last judgment today rejected the last vestige of Deane J’s proximity jurisprudence in negligence law. As a law student of the late 80s, I’ve always had a soft-spot for Deane. Sigh.)

It might seem that the High Court’s approach in this case was a victory for the war on slavery. But Kirby J, dissenting, was less thrilled:

We do not advance the correct application in Australia of a contemporary statutory provision to tackle modern issues of “slavery” and trafficking in “sexual slaves” by distorting the essential ingredients of serious criminal offences as provided by the Parliament. Nor do we do so by diminishing the elements that the prosecution must prove and that the trial judge must accurately explain to the jury. In this case, that element is the “intention” necessary to constitute such a serious offence, with the exposure that it brings, upon conviction, to special calumny and to extremely severe punitive consequences.

Kirby argued that capturing too many people in the definition of the crime of slavery would ‘banalise slavery crimes by applying them to circumstances that amount to no more than a seriously exploitative employment relationship.’ He was particularly suspicious of the easy application of slavery to the context of sex work, which he argued cut across the legalisation of sex work in Victoria. (Club 417 was a licensed brothel.)

Indeed, it seems to me that the majority’s approach would seem capable of capturing the clients of the brothel, to the extent that those clients were aware (as surely any with half a brain would be) of the limited freedoms of the women they were having sex with. Having sex with a person would surely count as ‘using’ them in a proprietorial sense.  That would be enough to convict them on the majority view. But on the Court of Appeal’s and Kirby’s view, conviction would follow only for those who not only recognised the situation of the women but thought of their own actions in those terms. Views may differ on whether this is a distinction worth drawing, though I for one think that this difference is not just one of degree.

(A purely criminal law aside: One argument that the defendants might have pursued is to focus on the fact that slavery offences are property offences. Such offences have long attracted exceptional treatment in the criminal law in that the defendant’s attitudes are very much at issue, notably in the modern requirement of dishonesty, which is basically an awareness that you were doing wrong. One kinda interesting general defence in the Code is this one:

9.5(1) A person is not criminally responsible for an offence that has a physical element relating to property if: (a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and (b) the existence of that right would negate a fault element for any physical element of the offence.

This provision isn’t quite on point – it’s about things that aren’t owned but could be, as opposed to people who can’t be owned, but could be thought of as owned – but surely it underlines how, when posessing is a physical element of an offence, attitudes about the nature of that possession are key.)

From a Charter perspective, the question comes down to which approach best promotes Charter s. 11: capturing more people in the definition of perpertrators of ‘slavery’, or singling out the worst of them. Being a non-Charter case, but a federal one, there was an issue in the case of whether a widened slavery offence was supported by the external affairs power. Everyone held that it was, but that consideration was limited to the question of ‘de facto’ slavery, rather than the punishment of bare intentional slavery. It’s a little surprising that Kirby didn’t discuss the latter, though perhaps there’re simply no legs to the claim that a simplified fault element could fail the ‘reasonably appropriate and adapted’ test.

From my perspective, this case raises a broader question about the consonance of Australian criminal law – the highly simplified law developed by the High Court and continued by the Commonwealth’s Criminal Code – with modern human rights (not to mention the nuanced definitions of international law that the Commonwealth has taken to enacting within the Criminal Code.) In short, is there too little nuance in the criminal law, given what’s at stake? That’s a question I’d like the government to consider in its upcoming review of many aspects of federal criminal law. But I must confess that such an approach – combining both more burdens for prosecutors and more complexity – is unlikely to be appealing to either the legislature or the executive. The best branch to bring some subtlety into the criminal law is, alas, the judiciary.

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