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. Continue reading