[2008] HCATrans 181
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M5 of 2008
B e t w e e n -
THE QUEEN
Appellant
and
WEI TANG
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 14 MAY 2008, AT 10.19 AM
(Continued from 13/5/08)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: If the Court pleases. I was just completing yesterday my submissions about the additional words in the definition in the Code. May I briefly remind your Honours of what was said in the second reading speech, which your Honours have. The second reading speech was delivered in the Senate on 24 March 1999 by Senator Macdonald, the Minister for Regional Services, Territories and Local Government. It commences at page 3075 of the Hansard report and the relevant passage is on the second page – page 3076. Your Honours see in the first column, the fourth paragraph, Senator Macdonald says:
First, the bill definition of ‘slavery’ has been expanded to make it clear that slavery can also arise from a debt or contract. It is not sufficient for the debt or contract to be exploitative or oppressive to qualify. Rather, it must be such as to place a person in a condition –
Then he repeats the opening words of the definition – the key words, “whereby a power attaching” et cetera. In the previous paragraph he referred to the fact that the definitions are based on the definitions of corresponding terms in the various conventions. Three paragraphs down he says:
It is important to make the point that, although this bill contains separate offences to address the conduct I will refer to shortly as sexual servitude, the slavery offences may also apply if the control over the sex worker is so far-reaching that it effectively amounts to a right of ownership over her or him.
So it is clear that the offences are separate but overlap. One is not taken out of the offence of slavery because it may fall into one of the other definitions. The explanatory memorandum, which your Honours also have - it is the revised explanatory memorandum which takes into account some amendments made by the Senate, and if your Honours see that on the fourth page there are notes on items, and two of the notes are relevant. Note 18 dealing with the definition says:
The definition is modelled on the definition of ‘slavery’ in the 1926 International Convention to Suppress the Slave Trade and Slavery and the 1956 Supplementary Convention on the Abolition of Slavery . . . to which Australia is a party . . .
20. This power can arise in a variety of ways -
again, making it clear that it is talking about the historical way it arose rather than the juridical basis. But the concluding words have been added:
to make it clear that, depending on the circumstances, it could also arise from a debt owed or contract entered into by the enslaved person.
Now, I turn then to the 1926 Convention to make good the submission about the width of the definition.
KIRBY J: By the way, are there any other Western countries that have used the Convention for the purpose of prosecuting slavery of this larger kind?
MR BENNETT: I do not know the answer to that question, your Honour. There have been prohibitions in America under the 13th Amendment since the 18th century.
KIRBY J: Yes, but that is a different kettle of fish.
MR BENNETT: Your Honour, might I put in a supplementary submission, or supplementary document, just answering your Honour’s question and showing what other countries have implemented it.
KIRBY J: One might feel a bit more comfortable about pushing the notion of slavery into different categories than traditionally has been involved if this is a relatively common practice in countries with similar legal traditions.
MR BENNETT: Yes, I will have that looked at, your Honour. The 1926 Convention is at tab 1 of the Court’s folder and your Honour sees it is to the Australian ‑ ‑ ‑
GUMMOW J: Just before you go there, Mr Solicitor, in the revised explanatory memorandum you took us to, paragraph 2 of that memorandum says that:
The slavery offences in the Bill are based on the recommendations of the Australian Law Reform Commission.
Do we have that material?
CRENNAN J: It is Report No 48.
MR BENNETT: Yes. I am told by my learned friend it is in his authorities.
GUMMOW J: Thank you.
MR BENNETT: Yes, they say at page 86 at about point 2 in paragraph 111:
It is recommended therefore that the proposed new Commonwealth slavery offence be based on the 1926 Convention articles 1‑2 and 1956 Supplementary Convention -
Yes, there is some brief discussion in that report.
KIRBY J: Why was this issue dealt with in a report on civil admiralty jurisdiction and prize?
MR BENNETT: I think, your Honour, because part of the prohibitions included transportation by sea and that was ‑ ‑ ‑
KIRBY J: Yes, there was that principle in which it is one of the foundations of universal jurisdiction that British ships could stop any ship on the high seas if they suspected there were slaves in them.
CRENNAN J: It was a report on criminal admiralty jurisdiction.
HAYNE J: See particularly paragraph 96 explains why.
MR BENNETT: Yes. There was also the Model Criminal Code Chapter 9 Report in November 1988 which I think your Honours also have. Page 6 sets out the various conventions and the ‑ ‑ ‑
HAYNE J: Just before you part from the Convention, staying with the criminal admiralty jurisdiction and prize report at ALRC, Mr Solicitor, we would need, would we not, to take account of what is said in paragraphs 111 and following - 111 refers to the old legislation. It expresses the view that:
The Acts do not define slavery, but its meaning is almost certainly restricted to the 19th century common law sense of ‘chattel’ slavery.
You then go through 112. There are other conventions, additional matters addressed by the conventions - debt bondage, serfdom, forced marriage, et cetera and at least a possible reading of this is that the intention was to go well beyond any notion of bare chattel slavery, but perhaps that is ‑ ‑ ‑
MR BENNETT: Well, except they say in paragraph 112, your Honour:
A further issue concerns the additional matters addressed by the Conventions; debt bondage . . . Australia is obliged to bring about the complete abolition or abandonment of these institutions as soon as possible. Some of these practices may fall within the convention definition of slavery and will thus be abolished under the proposed new Commonwealth statutory offence. Insofar as they do not, it is inappropriate to consider the implementation of these provisions in this Report –
and then there is a discussion about that. But the words “Insofar as they do” seem to relate, as your Honours will see from other documents, to what is described as debt bondage.
GUMMOW J: Well, the Commission is saying the Imperial Acts were dealing with the slave trade, in the old‑fashioned sense of the term.
MR BENNETT: Yes, they were, the old Imperial Acts.
GUMMOW J: That was the primary job of the Commission but they were caught up also in the international conventions which were broader, perhaps.
MR BENNETT: Yes. Your Honours, the 1926 Convention - there are a few aspects I should direct your Honours’ attention to. Your Honours see that the second recital refers to the complete suppression of slavery in all its forms. “Slavery” is defined, as we know, by Article 1(1) and then Article 2(b) says:
to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.
There was some width in the language there before ones comes to the later articles and discussions of it. The 1958 Convention – so the 1956 Supplementary Convention, which came into force in Australia in 1958 – is in tab 2 of the Court’s folder. Again there is a recital about the Universal Declaration of Human Rights which says:
that no one shall be held in slavery or servitude and that slavery and the slave trade shall be prohibited in all their forms -
Then Article 1, which your Honours have been referred to, says the States will take all measures to bring about the complete abolition of:
the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in Article 1 -
So this is a second basis for the invocation of the external affairs power on its own, and of course any argument that there is some sort of expressio unius arising out of the later Convention is negated by those opening words. They did not need to decide legal questions as to whether particular things fell within the definition or not, but the fact that they were being expressly prohibited was not to be regarded as demonstrating that they were not otherwise included – and the first one is then debt bondage. Article 6 creates an obligation on States to criminalise it:
The act of enslaving another person or of inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party . . . shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.
Article 7 defines “slavery” as defined in the 1926 Convention, and the words are then repeated. It adds no doubt a more abundant caution that a slave means a person in such condition or status. We of course would get that result under our legislation by virtue of section 18A of the Acts Interpretation Act where different parts of speech are included in definitions.
There is plenty of later international material of the type which the Vienna Convention allows one to look at which discusses some of this. Your Honours have been taken to the 1953 report of the Secretary‑General which is at tab 4 of the Court’s folder. I will not spend much time on this because it has been referred to, but I will just remind your Honours of a couple of key passages which make absolutely clear what was ‑ ‑ ‑
KIRBY J: Did that report lead to the 1956 Treaty?
MR BENNETT: Indirectly. In fact it was part of the overall history.
KIRBY J: They had to change the old treaty because it referred to the League of Nations having a supervisory body.
MR BENNETT: Yes, there was that aspect too. At the end of paragraph 34 on page 26, point 4 of the page, your Honours see:
It will be noted that in preparing the above list, the ad hoc Committee raised, but did not answer, the question whether or not the institutions or practices described above fall within the scope of the definitions contained in the International Slavery Convention of 1926.
Going back a page, (a) in that list was debt bondage. But he goes on to say, and this is the important part:
In this connexion it will be recalled that at the time of the preparation of the International Slavery Convention of 1926, the question was examined whether certain conditions analogous to slavery should be considered as covered by the Convention. An interpretation, contained in the Report of the Rapporteur of the Sixth Committee to the 1926 Assembly of the League, was accepted by the Assembly as the authoritative commentary on the provisions of the Convention. In this interpretation the Rapporteur stated that reference to domestic slavery and similar conditions was omitted:
“because it was believed that such conditions came within the definition of slavery contained in the first article and that no further prohibition of them in express terms was necessary. This applies not only to domestic slavery but to all those conditions mentioned by the Temporary Slavery Commission . . . i.e., ‘debt slavery’ . . . etc. Even if these last practices do not come under the definition of slavery as it is given in Article 1, the Commission is unanimously of the opinion that they must be combatted.
It interprets Article 2 in that way. Then in 36:
It would appear from a study of the International Slavery Convention of 1926, and of the preparatory work leading to its adoption, that the obligations of the Parties thereto extend to all institutions or practices, whether or not designated as “slavery”, provided that, as stated in Article 1 of the Convention, “any or all of the powers attaching to the right of ownership are exercised” over a person in these institutions and practices.
If this conclusion is correct, an examination of the institutions or practices described by the ad hoc Committee . . . indicates that in the main these institutions or practices are covered by the undertaking contained in Article 2 (b) of the International Slavery Convention of 1926 . . . The possible exceptions are some of the institutions or practices described under (b) and (c).
What is important is that the possible exceptions do not include (a), which was debt slavery. So (a) is something which is not a possible exception to something that was included in Article 2(b), et cetera. I will not take your Honours through the long footnote ‑ ‑ ‑
KIRBY J: The points that distinguish, say, articles of clerkship in your day and mine, when in some cases people had to deposit some money with the master solicitor, from debt bondage of the kind to which the Convention is concerned, are in those last words of not being able to exercise rights normally enjoyed by ordinary individuals within the framework of local social custom. So because there are all sorts of employment‑type relationships by which people promise, for various rewards, to spend a long time working for someone ‑ ‑ ‑
MR BENNETT: I am going to come to that, your Honour. But the moneys paid by our fathers to our master solicitors in those days were rather a security for good behaviour than a creation of a ‑ ‑ ‑
KIRBY J: Not stealing the postage stamps.
MR BENNETT: Yes, yes. Now, may I take your Honours next to the second article by Allain, which is in tab 6 of the Court’s folder. This is a highly authoritative study as part of a guest lecture series of the Office of the Prosecutor. Allain seems to be the senior lecturer in public international law at Belfast. At paragraph 7 he refers to the fact that:
In his Report to the Assembly . . . Viscount Cecil considered the notion of ‘domestic slavery and similar conditions’ which he noted was meant to “include all forms of ‘debt slavery’ -
Then he explains the development of the definition. In paragraph 9, the end of the paragraph on page 6, he points out:
Thus, there was an unwillingness to include servitude in the Convention. For his part, Viscount Cecil reported to the Assembly of the League of Nations in 1926 that “the words ‘notably in the case of domestic slavery and similar conditions’ [were] being now omitted. This modification was made because it was believed that such conditions came within the definition of slavery contained in the first article and that no further prohibition of them in express terms was necessary.
Then he repeats that point in the next paragraph. He says:
The argument being put forward here is that without this background the 1926 Report to the Assembly of the League of Nations by Viscount Cecil of Chelwood appears to be ambiguous on the definition of slavery, yet it is not. Viscount Cecil did not seek to give voice to a wider the definition of slavery. That ‘domestic slavery and similar conditions’ was omitted was a result of the understanding that where so-called ‘domestic slavery and similar conditions’ manifested powers attaching to the right of ownership, they fell into the definition of slavery as established by Article 1(a) ‑ ‑ ‑
GLEESON CJ: Well, as the first sentence of the first paragraph of this report indicates, one of the difficulties experienced in the past about defining slavery was that the question of a legally accurate definition became very much mixed up with questions of advocacy, in particular, advocacy by members of the anti‑slavery movement and this author says, they in fact had a monopoly on discussion of the meaning of slavery.
MR BENNETT: Yes.
KIRBY J: The Imperial powers might have been concerned at the time of the 1926 Convention with the widespread practice of dowry, especially in the subcontinent.
MR BENNETT: Yes.
GLEESON CJ: What is troubling me at the moment is this, and this article really points it out. There are really two different lines of thought in play. This definition in the 1926 Convention was written at a time when there was in the world in various places a legal status of slavery and the definition seems to be based on the idea that the definitive aspect of the legal status of slavery was ownership of one person by another.
MR BENNETT: Yes.
GLEESON CJ: That is what a slave was, somebody who was owned by somebody else.
MR BENNETT: Yes.
GLEESON CJ: But there was a proposal to get rid of that status and prevent it arising in the future so that when this was to operate in the future it was to operate in a world in which you could not own another person.
MR BENNETT: Yes.
GLEESON CJ: So the definitive aspect of slavery, that is, legal ownership of one person by another, was going to become impossible.
MR BENNETT: Yes.
GLEESON CJ: The second line of thought was that there was also a desire to get rid of relationships which were not strictly relationships of slavery but were analogous to relationships of slavery. So you had a definition composed that was going to operate in a future when the key element of the definition was going to be legally impossible.
MR BENNETT: Well, your Honour, that ignores, with respect, one aspect of the definition which is, in a sense, a key aspect and that is the words “status or condition”. What your Honour says about legal slavery was covered by the word “status”.
GLEESON CJ: When they drafted this definition they knew that it was going to have to work at a future time when the critical element of the legal status was going to be impossible.
MR BENNETT: Yes, and that is why they use the word “condition”.
GLEESON CJ: And that is the problem then that we have to address. We have to make the definition work, obviously. How do you make it work in a world in which the critical legal element of the status of slavery is now impossible?
MR BENNETT: That is done by the word “condition”, which is the part of the definition adopted in our legislation and which adopts the metaphor.
GLEESON CJ: Yes, now, that brings us to the question. We are now dealing with “condition”, not “status”. How do you distinguish between a condition that is attributable to the exercise of ownership powers and a condition that is attributable to the exercise of other powers?
MR BENNETT: Yes, your Honour, that is the next matter I am coming to. The summary answer to your Honour’s question is that – and this is the answer to Justice Kirby’s question about powers such as the power to direct the performance of work which is clearly a characteristic of slavery as well as a characteristic of normal employment relationships. The answer to that question and the answer to your Honour’s question is that when one looks at the words of the definition “the powers attaching to the right of ownership” one has to look at those at a lower of level of generality.
One does not say the relevant power attaching to the right of ownership is the ability to direct the doing of work. One rather says the relevant power is the power to direct the doing of work in circumstances where the person directed has no ability to terminate the relationship, is prevented by various forms of force or threat from refusing and so on. In other words, one looks at the power in the context and interprets it at that level of generality, not at the broad level of generality, say, of a power to give directions.
That applies even to things such as the exercise of restraint of movement. Now, the exercise of restraint of movement might be thought to be one of the relevant powers, but it is an exercise of restraint of movement in the context of old‑fashioned slavery which is being talked about. In other words, one is not talking about restraint on the power of movement where there is some other reason, for example, a worker on an oil rig, who obviously cannot get off it, or the relationship between governor of a gaol and a prisoner where there is another explanation for the restraint of the prisoner.
HAYNE J: But do the examples you have just given all fall outside a description of power which does not derive from autonomous consent or force of law, that is, are the powers of ownership spoken of to be distinguished from powers which derive from the autonomous consent of the individual or applied by force of law?
MR BENNETT: Your Honour, we would not accept autonomous consent on its own; it has to be a continuing informed and autonomous consent. The consent at the beginning does not get one there if it is - but leaving that detail aside, that would be a characteristic of the power – of the relevant power in most cases. There may be others. There may be an accompaniment of some sort of cruelty. There may be various other things which make the power of the relevant type, but one does not simply take the high level of generality of restraint of movement or ability to give directions as to performance of work.
HAYNE J: The next question is to give content to the notion of autonomous consent, and in particular, whether the Commonwealth says that anything less than force or threat of force will be relevant in determining autonomous consent.
MR BENNETT: Well, that is the controversy which the three American cases discussed - the two Circuit Court cases and the Supreme Court case of Kozminski. Your Honour recalls that the two Circuit Court cases came to different results and then Kozminski was a five/four division.
HAYNE J: Where does the Commonwealth land, Mr Solicitor, or does it choose not to land?
MR BENNETT: Well, it does not need to in this case, your Honour. It is not relevant to validity and there are a lot of questions like that that may have to be answered one day.
HAYNE J: They have to be answered in telling 12 citizens sitting in a jury box what they have to decide, and I would have thought that critical to the question of the sufficiency of the directions in this case is exactly what you tell the jury about notions of autonomous consent, if that is the relevant field of discourse.
MR BENNETT: Your Honour, we do not intervene on that issue. That is a matter between the Director and the respondent on which the Human Rights and Equal Opportunity Commission has some submissions as well, but we do not intervene on the detailed issues ‑ ‑ ‑
KIRBY J: Yes, but Justice Hayne’s question is a pretty fair question. I mean, your legislation has really committed the nuanced decision here to a trial judge tyring to explain things to a jury instead of enacting clear legislation that deals with the issue which in part has been done since. We are having to do battle with very general words and a person’s liberty at risk for 25 years is a pretty serious thing to focus your attention.
MR BENNETT: Yes, and, your Honour, there are difficult questions about the forms of direction and as to how they have to be given when they arise in this case and we do not intervene in relation to them.
KIRBY J: Normally in our country fit people with liability for very, very serious offences carrying very serious penalties in a state of nebulous uncertainty as to what the content of the offence is and of a key word in the offence, namely, slave, we do not normally do that.
MR BENNETT: Well, your Honour, the definition is the one which the international community has adopted and which we have taken from it. It has imperfections when one tries to draft a jury direction and deal with it, but one does what one can.
KIRBY J: Yes, one does what one can, but Ms Tang, how is she to know even under our fiction that everyone is deemed to know the law, she has to go round searching in the 1926 definition in the Convention that would not be available to most citizens.
MR BENNETT: She does not need that, your Honour. She would see the same words are in the statute and she has the words.
KIRBY J: You are spending an awful lot of time trying to explain it by reference to all of these extrinsic materials.
MR BENNETT: Your Honour, I am merely doing that for the purpose of rebutting the submission put against me that the treaty was one dealing with a very narrow concept and that we have gone outside it. I am rebutting that by saying that the treaty dealt with a broader concept and we have adopted what the treaty says. That is the primary matter I am dealing with.
We do say by way of assistance to the Court that the answer to the question which strikes one when one looks at the definition of what about the totally innocent matters which might be regarded as powers attaching to the right of ownership that they are not included, because one looks at them at a low level of generality as they applied in relation to slavery and one does not look at them in some broad way of saying ability to give directions or ability to have work performed for one. The precise detail of that we do not go into as an intervener. We do stress that in relation to coercion and the degree of coercion and so on the majority in Kozminski ultimately took the wide view and that ‑ ‑ ‑
KIRBY J: That is the 13th Amendment to the United States Constitution which itself is a response to the situation of actual old‑fashioned chattel slavery in that country and it has a whole history and a lot of baggage that we do not have in Australia.
MR BENNETT: But went beyond that. It is clear that the 13th Amendment and the legislation that followed it went beyond the mere abolition of strict chattel slavery. It went much further and Kozminski and the other cases all make that clear.
KIRBY J: That was presumably – I do not know – but I assume that was because when slavery was abolished as a result of the Civil War the fear was that there would emerge various things which were not strictly slavery but which were very oppressive.
MR BENNETT: Yes.
HAYNE J: As did the system of peonage and peonage was dealt with under 13th Amendment laws from the middle of the 19th century.
MR BENNETT: Yes. One sees this in the international developments too where there is an extension. Now, I was going through the Allain article. I just want to take your Honours now to what he says about the words “status or condition” because he puts the same argument that I have been putting to the Court. In paragraph 17 he says:
Having sketched out what ownership means, focus now shifts to the definition of slavery as ‘a status or condition . . . This phrase should be broken down into its component parts to demonstrate that where slavery is concerned the issue is not about the legal right of ownership – i.e. the legal right to, for instance, buy, sell, or possess a person and, upon challenge, to have such a right vindicated in a court of law –
as in the Dred Scott decision and that line of cases in America –
but about the powers attached to the right of ownership. The difference between the two is the difference between slavery de jure and slavery de facto.
Then in paragraph 19 he talks about the phrase “status or condition” and discusses the meanings of them. In paragraph 21 after going into that in some detail he says:
From the forgone –
I think by forgone he means forgoing –
textual interpretation, it may be said that the phrase ‘status or condition’ seeks to distinguish between slavery de jure and slavery de facto, whereby slavery as ‘status’ is a recognition of slavery in law; and slavery as ‘condition’ is to be understood as slavery in fact.
He goes on to develop that, and we respectfully adopt that.
GUMMOW J: Paragraph 23 is important I think, Mr Solicitor. It explains the French language.
MR BENNETT: Yes, and that supports the point that it is the phrase – the two words “status and condition” are referring to the two things, de jure and de facto.
GLEESON CJ: Well, it is section 270.2 of our Criminal Code that deals with slavery de jure.
MR BENNETT: Yes, the one that confirms the abolition, yes.
GLEESON CJ: And section 270.3 deals with slavery de facto.
MR BENNETT: Yes, because it picks up the definition which uses the word “condition”. Section 270.2 is confirming that there is not to be such a thing as de jure, and 270.2 in that sense explains why 270.1 does not have the words “status or” because that cannot exist in Australia and 270.2 makes it clear. The abolition of status is rather directed to a government, a legislature than to the individual who engages in the conduct.
Now, he emphasises in paragraph 25 that it only has to be any or all, and one of them may be sufficient. That itself shows that the definition is wider than the old idea of chattel slavery because chattel slavery involves all, rather than any or all in the strict old‑fashioned sense of the word. In paragraph 31 he reminds us that Australia agreed to the amendment adding the words “whether or not they are covered by the definition” and he comes to the conclusion about the 1956 Convention at the end of paragraph 31.
He goes on in paragraph 37 to deal with the cases of Siliadin which is referred to against this and I am only going to spend a couple of minutes on this because it is really by way of disputing it. The problem with the Siliadin Case is that in a case dealing with the European Convention which used the words “slavery or servitude” and in a case which was about servitude, where slavery was not alleged and was not part of anyone’s case, there is one paragraph which is irrelevant to the judgment, which ignores the decision of the International Criminal Court for the former Yugoslavia and which is simply wrong. Allain refers to it that way and makes that point and we repeat it.
It is a paragraph which can accurately be described by the two common law Latin tags, obiter dictum and per incuriam. It is per incuriam because it ignores the decision of the Yugoslav Tribunal sitting only a few kilometres away a few years previously which was a very authoritative discussion of the issue. It just has nothing to do with the rest of the judgment. It is almost as if some clerk or associate in drafting the judgment has decided to put in a reference to something in an early treaty to show off some sort of knowledge about it, but it is clearly wrong and it is a paragraph that just can not be right. It is paragraph 122 in Siliadin which is in – I think your Honours have it.
HEYDON J: We have it and we have read it. It was read to us yesterday.
MR BENNETT: Yes, and I am not going to reread it, except to say that the words of the second paragraph of paragraph 122 are inconsistent with the very words that precede it:
The Court notes at the outset that . . . “slavery is the status or condition –
We know what status or condition mean and the different meanings they have. Yet they then just say – which is totally wrong
It notes that this definition corresponds to the “classic” meaning of slavery as it was practiced for centuries.
Well, it does not. The words “or condition” do not. It is, as I say, just an irrelevant paragraph and it should be ignored in considering the respect otherwise given to a judgment of the European Commission of Human Rights.
GLEESON CJ: Mr Solicitor, getting back to your reference to slavery de jure and slavery de facto, is a possible approach to the definition in the Convention and the definition in the Code to say if the respondent had been legally entitled to do what she was doing to these women, would they have been her slaves?
MR BENNETT: Your Honour, the Convention of course prohibits countries from permitting matters falling within the definition to exist.
GLEESON CJ: I will make the question slightly clearer then. A hundred years ago when slavery existed, if this woman had been legally entitled to do what she was doing to the complainants, would the complainants have been her slaves?
MR BENNETT: Probably yes, your Honour. What we say is that one of the matters one looks at to see, in determining the level of generality at which one looks at the conduct is whether there is another explanation for it. One finds that readily, for example, in the case of military service by conscription, in the case of a prisoner and the governor of the prison, in the case of a parent and child where the parent grounds the child for a week.
There are various situations in which there is another legitimate explanation for what has occurred. Your Honour’s question involves the difficulty that, where local legislation justifies what would otherwise be slavery, that may not be sufficient, certainly within the meaning of the Convention. In Australia, I suppose, it might depend, among other things, on which legislation came first, whether the other legislation was State or federal and on issues of that sort.
State legislation authorising this type of behaviour would probably be struck down or at least be ineffective under section 109 of the Constitution because of the Criminal Code. If it was under federal legislation it might depend whether it was before or after this legislation to see ‑ ‑ ‑
GLEESON CJ: My question was prompted by what appeared in this Article by Mr Allain where he said in paragraph 22:
exercising ‘the powers attaching to the right of ownership’ should be understood as meaning that the enslavement of a person does not mean the possession of a legal right of ownership over the individual . . . but the powers attached to such rights but for the fact that ownership is illegal.
MR BENNETT: Yes. Precisely, your Honour.
GLEESON CJ: In other words, he seems to be saying there the test is to ask whether what is going on here would be the exercise of a right of ownership except for the circumstance that ownership is illegal. That may relate to your reference to other possible explanations.
MR BENNETT: Yes.
GLEESON CJ: I am not saying it is this case at all, but in relation to some examples that have been mentioned in argument a possible explanation of what is going on might just be that you have a harsh and cruel employer, not an owner.
MR BENNETT: Yes, and in such a case one may well get questions of degree which have to be determined. I will just remind your Honours of what Allain says about Siliadin in paragraph 37 where he describes it as a “truly narrow interpretation” and he says, “Siliadin need not detain us” but which I assume is a euphemism for saying he regards it, or at least that paragraph, as wrong and we adopt that.
The final part of my submissions – and I will be brief because I have gone over the time I intended to proceed for – concerns customary international law. There is no doubt, of course, that customary international law can support laws under section 51(xxix). That was said by your Honours Justices Gummow, Hayne and Crennan in passing in XYZ v the Commonwealth 227 CLR 532 at paragraph 47. I will not take your Honours to it. There is also a reference in Koowarta 153 CLR 168 at page 220 point 5 in the judgment by Justice Stephen and 234 point 3 by Justice Mason.
What we submit is that in this long history which everyone has been talking about there has been a gradual evolution of the overall concepts. If your Honours go to the United Nations paper by David Weissbrodt and Anti‑Slavery International, which is tab 10 in your Honours’ folder, your Honours will see in paragraph 3 towards the end of the paragraph there is a reference to the “evolving definition of slavery” and in paragraph 6 says this:
the League of Nations, was very active in its work to eliminate slavery, and as a result international attention focused on the elimination of slavery and slavery‑related practices following the First World War. After the Second World War the United Nations continued working towards the elimination of slavery, and as a result it is now a well‑established principle of international law that the “prohibition against slavery and slavery‑related practices have achieved the level of customary international law and have attained ‘jus cogens’ status.”
There is a footnote which refers to a number of other works.
KIRBY J: Yes, but the question remains, what is the slavery‑related practices that had become jus cogens?
MR BENNETT: The one everyone seems to agree on in the various articles and reports I have been taking your Honours to is the various forms of debt slavery and practices analogous to it. Your Honours have been taken to the Kunarac Case. I will not take your Honours back to it but we do stress a number of matters that appear in the judgment in the Appeals Chamber.
In paragraph 117, the meaning has evolved beyond the conventions – that indicia are such that one cannot enumerate all the contemporary forms of slavery which are comprehended in the expansion of the original idea. I simply remind your Honours of paragraphs 541 and 542 in the Trial Chamber, which of course included Justice Hunt as one of its members.
For those reasons, we submit that – and applying the Victorian v The Commonwealth approach to it – the current status of customary international law in this area more than justifies attempts by the Commonwealth Parliament to control and eliminate slavery and various matters which are the extensions that customary international law has come to cover. One could also get there, subject to the difficulties in that area, by talking about matters of international concern. I will not expand on that; your Honours are familiar with the authorities.
GUMMOW J: Your footnote 96 misspeaks, as they would say in America, what had been said by Justices Hayne, Crennan and myself in XYZ. Footnote 96 refers to paragraph 53. It does not refer to paragraphs 50, 51 and 52.
MR BENNETT: Yes. The primary submission, your Honour, is based on the customary international law rather than matters of international concern as such. I am not going to take time in this case – I do not need in this case to spend any time on customary international law. We do stress that it is not just the original treaty, that the later treaties would justify this legislation, although, of course, the wording is taken from the original one and it is that on which we primarily rely. For those reasons, your Honours, it is our submission that the legislation is justified under the external affairs power.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Young.
MR YOUNG: May it please the Court, we wish to commence by going to section 270 and the phrase “the powers attaching to the right of ownership”. I wish to make a few preliminary remarks about the function that that phrase performs in these sections before turning to a wider source of materials to address the meaning and operation of that phrase, both in terms of Parliament’s intention in relation to this legislation and in relation to the meaning that the phrase has in the relevant international materials.
The phrase is used at two levels in these sections. In both places it is used as the criterion, or the point of discrimination, that identifies the kind of powers that both the definition and the offence is concerned with. Hence, in section 270.1 the phrase is used as the criterion to identify the kind of powers whose current exercise will impose a condition of slavery upon a person.
In the offence provision, and focusing for the moment on section 270.3(1)(a), the phrase appears again. It is introduced by the words “other powers”, signifying that the act of possessing a slave is a power “attaching to the right of ownership”, and also signifying that the second element in paragraph (a), exercising power over a slave, is likewise a power of a particular quality required by the legislation, namely, another power attaching to the right of ownership.
In submissions thus far that two‑level use of the phrase has been described as circular or self-referential. We would raise this suggestion. It is not entirely without logic that the kind of power that imposes slavery is also the kind of power that is criminalised by subsection (1)(a). In other words, the relevant actions that would satisfy the offence provision in paragraph (a) must be actions of the same kind, that is to say, exercises of power attaching to the right of ownership that would impose slavery in the first place.
I will come to this, but there is something of a paradox in the Crown’s position that the words “a slave” in subsection (1)(a) mean, as the Crown accepts, that the accused must know the nature or quality of the powers that have been exercised over the victim to place the victim in a condition of slavery within the meaning of section 270.1, but it is not necessary that the accused have any belief about the nature or character of the powers she, or he or she, is alleged to have exercised so as to commit the offence, but both powers are qualified by the same identifier or discriminator. They must be powers of a nature or quality such that they can be said to be powers attaching or attributable or pertaining to a right of ownership.
I will develop that submission further. Can I make though several other observations again at a preliminary level about these sections. First, the definition in section 270.1 speaks of powers which “are exercised”. That really conveys that a person will be a slave or in a condition of slavery while powers are being exercised of the nature and quality described in section 270.1.
Secondly, this phrase, “powers attaching to the right of ownership” that defines the quality of the conduct in question is relevant within paragraph 1(a) of section 270.3 in two ways. First, it is central to the identification of who is a slave, and then it is central to the nature or quality of the actions that must be found to reach the conclusion that there has been possession or exercise of power within the meaning of paragraph (a).
Therefore, we embrace what Justice Eames said, which is this, the critical issue is the character of the exercise of power in this case, both the power that made person the victim – the slave within the meaning of legislation, and the powers allegedly exercised over the person so as to infringe paragraph 1(a). The definitional phrase used of “attaching to the right of ownership” requires, as Justice Eames said, and I am referring to paragraphs 66 and 67 of his reasons at pages 322 to 323, identification, both of what constitutes a right of ownership within the meaning of this legislation and also what constitutes an exercise of powers attaching to that right of ownership.
Another matter to bear in mind at the outset is the way in which the Crown conducted the trial in these respects. Can I go to his Honour Justice Eames’ reasons at several passages where he makes the same point about how the case was conducted. First at paragraph 58, page 320 - if your Honours are working from the Victorian Reports.
GUMMOW J: Page 467.
MR YOUNG: Yes, it is page 467. I refer to the opening two sentences where the final address to the jury posed the question:
“Have [the victims] been treated as if they were simply property?”
That was repeated more than once. His Honour notes that again at paragraph 81 and this is after his Honour’s identification of the elements that he thought he needed to be addressed by the direction to the jury. His Honour’s comments about the elements of the offence were likewise prefaced by an identification of how the Crown in this respect had conducted the trial. I refer to paragraph 76. In 77 his Honour ‑ ‑ ‑
KIRBY J: Could you give me a hint of where you are going with this. Is the submission that you do not go to all of this international material; that you simply give it an ordinary Macquarie Dictionary meaning?
MR YOUNG: Where I am going, your Honour is that the ordinary meaning coincides with the international meaning and I will go to both respects. Further, I would add that the parliamentary intention as revealed by the extrinsic materials is to adopt the same basic meaning which is essentially that put by the Crown, namely that the phrase “powers attaching to the right of ownership” requires an exercise of powers attributable to, or deriving from, a notional right of ownership such that it can be said that the victim has been treated as a mere piece of property.
GLEESON CJ: Will you accept this test? Is the respondent exercising powers over the complainants of such a nature that they could reasonably be explained only as an exercise of the right of ownership but for the fact that ownership is legally impossible?
MR YOUNG: Yes, your Honour.
GLEESON CJ: The answer to that question might require you to look at other possible explanations of the conduct, such as personal choice by the complainants or legislative context or external circumstances of the kind that explain the worker on an oil rig.
MR YOUNG: Yes, but we would agree with that, your Honour. We would disagree with Mr Bennett in saying that it is simply a question of looking at a lower level of detail to the facts, and I think someone else said it is a question of fact and degree. It cannot only be that, you need to understand what the discriminator is in the way that your Honour has phrased it. That is critical, and that is what Justice Eames said that the jury required practical directions about.
GLEESON CJ: I think the challenge that is made to Justice Eames is the next step he took, which was that he thought it was important to ask whether the respondent asked herself the question whether the power she was exercising were powers of a kind that could only be referable to a right of ownership if a right existed.
MR YOUNG: Well, we would not accept that that is really a fair construction of what Justice Eames did for this ‑ ‑ ‑
GLEESON CJ: You may be right about that, but subject to that qualification you have no problem with the test that I put?
MR YOUNG: No, we have not, your Honour. That is, the first stage is to determine what this formula means, and in terms of looking ahead to the direction to the jury, what Justice Eames was trying to get at is that it is no good in terms of practical guidance to the jury, to repeat the formula, rights attaching to ownership. They needed practical guidance about what discriminator, what criterion in a practical sense, that required the jury to apply precisely in the way that your Honour has explained it, simple, understandable English about what that discriminator was and how you distinguish forms of conduct, actions or exercises as being attributable to a right of ownership rather than to something else.
His Honour’s introduction to the four elements was prefaced by the words given the way the Crown mounted its case. That, in our submission, is a reference to the way in which the Crown explained the concept of “powers attaching to the right of ownership”, namely, that the actions in question must have treated the victims as if they were simply property.
Now, can I then outline our submission so the Court understands where my submissions will then proceed? In our submission, the expression “powers attaching to the right of ownership” is to be understood as an expression that requires those powers to satisfy a particular criterion, namely, that they must be powers that involve an assertion of what would be effective ownership over a person as if the person were a piece of property. That is the way in which it is put in the revised explanatory memorandum and other materials, and we would embrace what the Chief Justice put to me a moment ago.
MR YOUNG: That also means understanding the expression in its historical context. That material shows that that expression was used in a particular context and with a particular objective in mind, not to address other analogous practices but to address the core issue of slavery, which was still prevalent in parts of the world in 1926, and the international material shows to some extent slavery in its traditional sense was still prevalent thereafter.
To explain that submission I am going to go firstly to the provisions of the Criminal Code itself for context that sheds light on the meaning of that phrase; then secondly to the extrinsic materials, very briefly because Mr Bennett has covered some of that, such as the explanatory memorandum and the ALRC report. Then I will go to the treaties upon which the definition was based and then to later treaties and international materials.
HAYNE J: Just before you embark on that course, the proposition, as I understand it, is an assertion of what would be ownership as a piece of property, is that right? That is the proposition you are advancing?
MR YOUNG: That is perhaps slightly too restrictive, your Honour, but that is the heart of it. I accept that.
HAYNE J: What are the words “as a piece of property” intended to add to what appears in the statutory words and is not the content of that the real sting in the submission and what needs to be developed in the course you are about to embark on?
MR YOUNG: Yes, your Honour. I accept that the jury needed more practical guidance about what that meant and I will put submissions about what it means.
HAYNE J: They needed to be given guidance about the issues in the case. They did not need a disquisition on the law or the law of property.
MR YOUNG: Of course that is right, your Honour, but they needed some guidance about how you identify a power attaching to a right of ownership; not by reference to the law but by way of practical guidance or instruction.
HEYDON J: Did your predecessor offer to the judge a form of words which would constitute that practical guidance?
MR YOUNG: I do not believe so, your Honour. It was requested and your Honour has seen the exceptions that were taken.
HEYDON J: Yes. I could not pick it up.
MR YOUNG: And Justice Eames has, we would say, made a fair effort at a set of comprehensible directions in paragraph 145. Of course they merge towards dealing with the different elements of the offence. I accept what Justice Hayne put to me, though, that the reference to treating somebody as if they were a piece of property may require some further articulation to make it meaningful.
GLEESON CJ: And it also requires a warning. I do not think this cuts across your argument or the argument of your opponents, but it also requires a warning that that expression “treating somebody like a piece of property” is an expression that is sometimes used metaphorically. People sometimes complain that they are being treated as property when they do not mean that to be taken literally.
MR YOUNG: Yes. We accept that, your Honour.
KIEFEL J: You may need to concentrate upon the effect upon them, since it is the condition that they are in which is encapsulated in the word “slavery”.
MR YOUNG: Yes. Some of the materials speak of the subjugation of the autonomy or will of the victim to the person exercising the relevant powers, and that may be an indicator, but there may be some danger in trying to seize upon one particular discrimen, be it choice or lack of consent or restriction of physical movement, as if that conveys the entirety of the notion of powers attaching to the right of ownership. We would simply caution against that, which may be an oversimplification. Some of what I am trying to explain will become clear as I work through the materials.
Can I start with the Code itself for the context. Perhaps the best place to start is with the natural meaning of the expression “attaching to the right of ownership” to the extent it has one. “Attaching” is an English word, means fixed or connected or adhering to or pertaining to. From the French source in Allain’s 2007 article we could translate it as attributable to or an attribute of a right of ownership. That suggests that Parliament has chosen as the core of the definition and as the relevant discrimen a particular kind of power or quality of power, namely, one that would be attributable to ownership or exercisable by reason of ownership in a practical sense, accepting that ownership is declared unlawful. But that means, in our submission, that the powers being exercised must of their nature be indicative of rights of ownership.
The legislation itself gives some clues. If we look further down in section 270.3, there are references to slave trading. If we go to subsection (3) of section 270.3, it is defined as:
(a)the capture, transport or disposal of a person with the intention of reducing the person to slavery; or
(b)the purchase or sale of a slave.
So the historical concepts were not foreign to what was being intended here; they were fully embraced by the definition. Secondly, if we go to the next offence of sexual servitude, it is significant that it is dealt with separately. So not all forms of servitude and not even forms of servitude of a sexual nature produced by use of force or threats were thought as encompassed necessarily by the slavery offences. That tells one that Parliament saw a distinction between sexual servitude, even when procured by force and threats, and the concept of slavery.
There is an offence in section 268.10 of enslavement. This is in the different context of crimes against humanity and of attacks against a civilian population, but the idea of enslavement is usefully expanded by subsection (2) of that section and it is expanding the very same phrase that is found in the sections we are concerned with. It is only an inclusive reference but it says that it includes:
sells, lends or barters a person or imposes on a person a similar deprivation of liberty –
And it has got those additional references to debt or contract. But that is perhaps a further indication that the core concept of powers attaching to a right of ownership are linked, strongly linked, to the traditional concept of slavery.
Obviously a mere deprivation of liberty might happen in circumstances that one would not immediately think of slavery. An apprentice may be detained by his master for misbehaviour in some fashion. A crew on a steamer may have their passports taken, as I understand regularly happens, are not permitted to go ashore at foreign ports and are detained on the vessel for a tour of duty that may be six or eight months.
KIRBY J: Yes, but not many apprentices have their passports taken.
MR YOUNG: No, your Honour.
KIRBY J: And locked away. That is an indicium of some degree of control which, at least in Australian culture, I would be prepared to say is very unusual.
MR YOUNG: I will not debate the fact. Your Honour’s viewpoint is ‑ ‑ ‑
KIRBY J: See, your client did not give evidence and therefore we are left to try to work out her case from inferences that we draw and that would be an inference that I would draw, that it would be very unusual to have a foreign worker working in Australia whose employer takes away their passport and locks it away.
MR YOUNG: Yes, well, it is obviously one of the very relevant circumstances that arose in the evidence, your Honour. I will not dispute that. The other section I was going to go to, your Honour, that may give some clue about this phrase is 268.15. It is sexual slavery. It is again in the context of crimes against humanity. Again it is dealt with separately as if the conception was that the specific offences need to be addressed separately because they did not fall within the general prohibition on slavery, such as found in section 270.3(1)(a).
Subsequently, as the Court knows, other offences were introduced in 2005, trafficking and debt bondage amongst them. Just before I do that, I should have mentioned section 270.7 which was in the Act at the time. Deceptive recruiting for sexual services is treated as a separate offence, again perhaps some indication that that was not considered to be something that would fall within section 270.
The offences introduced in 2005 of trafficking, that is section 271.2 and following, and debt bondage, 271.8, were separately defined offences that followed in broad terms the specific terms of separate treaties or treaty provisions addressing those particular practices. As the Court knows, even later amendments can be regarded on a question of interpretation in accordance with the Grain Elevators principle discussed by Justice Dixon in 73 CLR 70 at page 86. That was endorsed in Hunter Resources v Melville 164 CLR 244 to 245 by Justice Wilson and in Taikato v The Queen 186 CLR 454 at 472 it was endorsed perhaps in a slightly more limited sense by Justice Dawson. Justice Dawson’s statement was approved by Justice Kirby in Trust Company of Australia 197 ALR 297. The essence of those authorities is essentially this ‑ ‑ ‑
GUMMOW J: I do not think they are authorities. They are statements by Judges. They are not authorities.
MR YOUNG: Yes, your Honour.
GUMMOW J: I have never subscribed to that ‑ ‑ ‑
GLEESON CJ: I think there have been reservations expressed about them.
MR YOUNG: There have been, your Honour, yes.
GLEESON CJ: If you are right, does it mean that the meaning of section 270 changed in 1975 when section 271.8 was enacted?
MR YOUNG: No, your Honour, that is not the usage we are suggesting. Where it has been suggested that a later amendment might be taken into account really fits this set of circumstances which I will now summarise. First, to avoid a result that would render the amending legislation unnecessary or futile and possibly to avoid rendering the amending legislation deficient, that is what one draws from Grain Elevators and those cases that have referred approvingly to Justice Dixon’s statement. Secondly and separately, the other circumstance is where the later amendments serve to indicate the kind of circumstances which are relevant in determining the application of a phrase such as the one we have here, and that second usage was what was addressed by Justice Dawson in Taikato and Justice Kirby in the Trust Company Case. The other statements do not contradict these usages, they express caution as to the use of later amendments.
GLEESON CJ: But is it your submission that debt bondage can never amount to slavery?
MR YOUNG: No, your Honour. It depends, of course, what one means by debt bondage.
GLEESON CJ: Yes, but if there are circumstances in which debt bondage can amount to slavery, that is difficult to reconcile with the limited use you say you are seeking to make of this, is it not?
MR YOUNG: Your Honour, the later provision follows largely the language of the 1956 Convention which does not define debt bondage by reference to an exercise of the powers of ownership.
GUMMOW J: The 1956 Convention rather significantly says whether or not they would have been in the earlier Convention.
MR YOUNG: Yes, your Honour, but it goes on to define debt bondage in a way that is not unlike section 271.8.
GUMMOW J: Yes.
MR YOUNG: Namely, by identifying a practice in which the debt or alleged debt is one that is either manifestly excessive or fabricated or which cannot be eliminated or defined. But the point is that Parliament has legislated against that practice in particular terms that do not depend upon any criterion that the powers be attributable to rights of ownership.
GLEESON CJ: Yes, but I think, as Ms Abraham has pointed out, it is a common feature of criminal statutes, federal and State, that they have what might be described as cascading offences, and one particular or particularly identified offence in an extreme form may be another offence as well.
MR YOUNG: Yes, that is possible, your Honour, but I am not saying that these factors I am pointing to, any one of them are necessarily conclusive, but they do amount to pointers, particularly when all of the factors I am going to go to are taken together and assessed cumulatively as to what they say about the intended meaning of this criterion of powers attaching to a right of ownership.
HAYNE J: What is the content that you say ultimately these point to?
MR YOUNG: That the legislation purposefully adopted a criterion whose content is largely explained by the historical context and which focuses ‑ ‑ ‑
GUMMOW J: Largely explains.
MR YOUNG: Yes, your Honour – and whose core requires that the powers that are exercised must be indicative of a right of ownership, that is to say, they go so far as to bespeak a subjugation of the person in terms of deprivation of autonomy or will or ordinary freedoms.
GLEESON CJ: It would be reasonably capable of being explained only by reference to a right of ownership if such a right were possible.
MR YOUNG: Yes, your Honour.
HAYNE J: That is the case the prosecution essayed at trail, was it not? See particularly appeal book volume 1, page 55, lines 6 and following, which is at least one place where we see an epitome of the prosecution case at trial between lines 6 and 22 with perhaps a little further explanation at lines 27 and following, namely, “purchase”, see line 10, “controlled all aspects of life”, lines 12 and 13, “controlled their work conditions”, 13 and 14, explained then “13 hours a day with no cash being paid”, keeping of passports, see line 19, and then amplified a little at 27 to 30.
MR YOUNG: Yes, your Honour. But the Crown case was that the various controls exercised over the women was so extensive that the conduct could reasonably be explained only as conduct attributable to a right of ownership, that is to say, they were being treated as a piece of property, and that is how the prosecution went on to put the case to the jury. It is entirely consistent with all of this, your Honour, and we accept that.
HAYNE J: But the factual issue to which the directions ultimately had to go was whether, one, were those facts established? Let us leave that aside, that is a separate part of the directions. But, two, if those facts or some of those facts were established, what then was the issue for the jury?
MR YOUNG: Well, your Honour, the Crown accepts that one issue for the jury was whether these powers so identified, whether exercised by the accused or others, were powers attributable to a right of ownership that subjugated the women to such an extent that they were treated as pieces of property. The Crown accepts that that is an element embraced in the words “over a slave”. The Crown accepts that the accused must have had a belief that the powers were of that nature and quality. What the Crown does not do in respect of the accused is to say, “You must have had that belief about the quality of other people’s actions, strangely including your own actions that impose slavery, but you do not have a belief about the nature and quality of your actions that is said to commit the offence”, even though those actions are characterised by exactly the same set of words.
We say they are both relevant circumstances that both required a direction. That is what Justice Eames said. I am getting into the elements of the offence in Chapter 2 and I will come to those matters, your Honours. The other observation I wanted to make before leaving the Criminal Code is the one we have made in our written submissions, and I will not labour it. Both at the time of the offences and subsequently there was a hierarchy of distinct offences in the legislation ranging from the most egregious slavery offences, 25 years and enslavement and sexual slavery in the human rights context of 25 years at the extreme end; intermediate offences, a sexual servitude offence in section 270.4, the deceptive recruiting offence in section 270.7 that attracted seven years and then they were added to later, in 2005, by further offences of intermediate seriousness such as trafficking, 271.2, and then at the other end of the scale you have the 2005 offence of debt bondage.
That hierarchy, that scheme, existed at the time. It was added to later. It may be possible to refer to the later additions. It does not really matter because the hierarchy existed at all relevant times and that has a bearing upon the distinction between these offences and the meaning to be given to these critical words of identification or discrimination as to the relevant nature and quality of the offences.
Can I then go briefly through some of the extrinsic materials. I will endeavour to do it as expeditiously as possible because Mr Bennett has touched on some aspects of it. First, can I take the Court to the revised explanatory memorandum just to refer to some additional passages. The memorandum is quite clear as to the basis of the slavery offences. The last sentence of paragraph 2, “based on the recommendations of the Australian Law Reform Commission”, then at paragraphs 17 and following. The Court was referred to several passages but not what we would regard as the most important, paragraph 19. It is only paragraph 19 in this group of paragraphs that seeks to address perhaps the critical aspect of the meaning of this phrase. The memorandum says:
slavery is more than merely the exploitation of another. It is where the power a person exercises over another effectively amounts to the power a person would exercise over property he or she owns.
Then can I ask the Court to go to paragraphs 44 and 45 and that point is elaborated in comparing the different offences of slavery and sexual servitude. Next, that idea is repeated in the second reading speech by Senator Macdonald. I am afraid I do not have the pages of Hansard.
KIRBY J: May I ask, was there any direction by the trial judge to the jury in this case akin to the closing words on paragraph 45 that any doubt about the application of the definition should be resolved in the favour of the defendant?
MR YOUNG: No, your Honour.
KIRBY J: I suppose there were general statements about the onus of proof and so on?
MR YOUNG: Yes, there were, your Honour, and in the context of whether a person was a slave there was a reference to the need to or the possibility that what had happened might be explained innocently by an employment relationship, so that that was referred to. The passage I want to go to is just below the passage Mr Bennett went to.
HAYNE J: That is page 3076. What does it begin?
MR YOUNG: Thank you, your Honour. I apologise for not having the page number. The paragraph begins, “It is important to make the point”.
HAYNE J: Page 3076, column 1, about point 7.
MR YOUNG: Yes. Senator Macdonald said after referring to the separate offences that:
the slavery offences may also apply if the control over the sex worker is so far‑reaching that it effectively amounts to a right of ownership over her or him.
There is another passage later in the second reading speech that addresses the difference between slavery and sexual servitude. It is at page 3078, second column at about point 6 on the page. It is the paragraph commencing:
The difference between slavery and sexual servitude in the bill is essentially one of degree. To establish slavery it must be shown that the accused exercises a power of ownership over the victim. Sexual servitude falls short of ownership but the domination over the victim is such as to effectively deny her or his freedom in fundamental respects.
So there is a line, it is a difficult line, but a line was intended by Parliament.
CRENNAN J: With sexual servitude I think it is the freedom to cease is denied and the freedom to move away from a place of ‑ ‑ ‑
MR YOUNG: Yes, by threats ‑ ‑ ‑
CRENNAN J: It is those two freedoms that ‑ ‑ ‑
MR YOUNG: Yes, your Honour, they are curtailed also by threats of the kind described in the statute.
The ALRC report is the next document I wanted to go to. It is helpful to read in its entirety insofar as it deals with slavery. It was being dealt with because previously slavery was prohibited by various Imperial Acts and they were effectively going to be replaced by the Commonwealth provisions we now have. The provision we are concerned with, as the revised memorandum said, was based on the ALRC report.
At page 86 there is a passage I wanted to draw particular attention to. These were referred to earlier, but would the Court note that the discussion of other practices, including debt bondage, proceeds under the heading “Non‑slavery provisions” in paragraph 112. The previous sentence or two is concerned with what became the legislation in section 270 that was based on the 1926 Convention. At the very last line of 86 and the top of page 87 there is an important passage. At the top of 87 the Commission says:
If further action is necessary in any of the areas referred to in these Conventions –
and that is referring to the non‑slavery practices such as debt bondage –
a simple prohibition of the relevant activity or inclusion within the definition of slavery is not an appropriate approach.
GLEESON CJ: The heading “Non‑slavery provisions” is slightly contradicted by a sentence a few lines down that says:
Some of these practices may fall within the Convention definition of slavery.
MR YOUNG: Yes, your Honour. But what, in our submission, one gleans from the Commission’s report is that the prohibition on slavery was to replace the pre‑existing prohibitions on the traditional practice of slavery, and that was its prime purpose, as indicated in this report.
GUMMOW J: Is there any help in the New Zealand legislation?
MR YOUNG: There is a helpful New Zealand decision, your Honour.
GUMMOW J: [1993] 1 NZLR 141?
MR YOUNG: Yes, the name escapes me for the moment.
GUMMOW J: It is R v Decha‑Iamsakun.
MR YOUNG: Yes. The explanation there of the expression “powers attaching to ownership” is in line with the submissions I am putting to the Court.
KIRBY J: This is a partial answer to what I asked Mr Bennett earlier. It does seem that in New Zealand they have a provision of the Crimes Act dealing with this issue under the rubric of slavery.
MR YOUNG: Yes, your Honour. Next could I take the Court to the report of the Model Criminal Code Officers Committee. I trust the Court has access to it. I will only read one passage but I will note some other pages of some assistance. The pages we thought were of some assistance are 11, 13, 15, 23, 24 and then 29 and 35. I wanted to go to page 29. The conclusion of the discussion ‑ ‑ ‑
KIRBY J: Which page are you going to, 29?
MR YOUNG: Just the conclusion, your Honour. It is the last paragraph on page 29, paragraph 9.1.1. The Committee concluded that it:
was anxious not to move away from the traditional understanding of what constitutes slavery so as not to bring in conduct that expands the meaning of the term.
The reasons for that conclusion are explained at the earlier pages I mentioned. That completes what might be called the extrinsic Australian materials. That does shed perhaps a little light on the intention behind the use of the phrase we find in the definition and an intention to, by means of that phrase, adopt essentially the historical concept of slavery, that is, powers attributable to deriving from what would have been lawful ownership and would now be unlawful ownership.
Can I go to the treaties. They are the direct basis of the legislation, that is to say, the definition of slavery in the 1926 Convention as repeated in the 1956 Convention is the direct basis of the language we find in these sections. The Conventions, in our submission, indicate that other analogous or similar practices stand outside the definition, although they are the subject of attention and a requirement for progressive abolition.
The 1926 Convention, the point I wanted to make about that additionally with those already made is that it deals separately with the concept of compulsory or forced labour in Article 5 and it therefore seems that the Convention concept of slavery as defined was not intended to extend it to compulsory or forced labour.
HAYNE J: They were dealing with the countries that were the subject of mandate, were not they, and all those sensitivities that were associated there?
MR YOUNG: Yes, your Honour, and, indeed, what the provisions went on to deal with was to establish a regime under which forced labour could occur, in other words, for public purposes and then subject to various safe guards. The 1926 treaty was soon followed by the 1930 Forced Labour Convention which entered into force in 1932. In the Forced Labour Convention, which is convention No 29, Article 2 defined the term “forced or compulsory labour” to mean:
all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.
Quite a wide definition, but the conception of those who approved the 1926 Slavery Convention was that forced labour, so understood, fell outside the concept of slavery. Presumably that is because the compulsory exaction of labour under a menace of penalty and in circumstances where it is not voluntary was to be distinguished on the basis that there was no exercise of powers attributable to ownership.
Can I then go to the 1956 Supplementary Convention which the Court has in the folder at tab 2. In addition to the points that have already been made, can I add this. The treaty separately identifies additional institutions or practices, amongst them debt bondage, defined in a particular way. It is not every situation of debt bondage that falls within the Convention. It is a debt bond in circumstances where the value of services is not reasonably assessed or not applied to eliminating the debt.
GUMMOW J: Would that have put the definition of been satisfied on the evidence in this case?
MR YOUNG: No, your Honour, we would submit.
GUMMOW J: Why not?
MR YOUNG: Because the so‑called debt ‑ ‑ ‑
GUMMOW J: Exactly.
MR YOUNG: ‑ ‑ ‑was removed over the course of a period of time at a stipulated rate of $50 per service and so ‑ ‑ ‑
GUMMOW J: It is the size of the debt in the first place, is it not? It bears no relation to anything provided.
MR YOUNG: The definition here is concerned with the value of the services. I mean, there are two matters, your Honour. There is the size of the debt and then there is the services whose value is applied to extinguish the debt. Here debts in two cases were extinguished and the women continued to work.
HAYNE J: But the difficulty is, the presupposition is there is a debt and that presupposition carries with it all sorts of consequences. Challenge the presupposition, that is, that it is anything more than an arbitrary sum to ensure the provision of services by these women for, what was it, 600 or 700 men.
MR YOUNG: I think it was more, your Honour.
HAYNE J: Nine hundred.
MR YOUNG: I think it was 800 or 900.
HAYNE J: Well, call it a debt if you like.
MR YOUNG: If we put aside the language of debt, your Honour, for the moment, the evidence was there was some kind of monetary arrangement under which airfares, accommodation and meals would be supplied.
KIRBY J: I did a little calculation for that. I do not know whether one can take judicial notice. The airfare would be about 2,000.
MR YOUNG: I think there was some evidence that it was less than 2,000, your Honour, but thereabouts.
KIRBY J: And the accommodation for six months would be, what, about 2,000 or 3,000. So you are really talking in sums which are much less than 40,000. It does not bear any real similarity to the costs.
MR YOUNG: No, but the other aspect of what I call the arrangement, your Honour, was – and despite the elements your Honour has mentioned – an opportunity to continue to work in Australia so long as they could achieve that under the protection visa.
GUMMOW J: Continue to work illegally in Australia.
MR YOUNG: Yes, your Honour, but so long as that could be achieved, there was an opportunity being exchanged.
KIEFEL J: Do I take it, then, Mr Young, that you no longer rely upon what is said in paragraph 17 of your submissions which refers to an assignment of the debt incurred by the complainants which does tend rather to suggest some pre‑existing contractual arrangement, not the arrangement that you are now speaking of?
MR YOUNG: Your Honour, I am not really in a position to make any concession one way or the other about the facts.
KIEFEL J: I would like to know what they are because what you are saying now does not sit with the second sentence in paragraph 17.
MR YOUNG: Your Honour, what I was trying to address was an argument, and I was prepared to make an assumption for the purposes of the argument that it was a monetary arrangement, not an enforceable debt; and for the purposes of the argument the figure was way in excess of what the evidence was about the airfares. But, your Honour, that is not to deny the fact that the evidence was that there was regarded by these people involved some kind of debt or monetary arrangement ‑ ‑ ‑
KIEFEL J: Not just as between the respondent and the women. This suggests a pre‑existing contractual arrangement.
MR YOUNG: The arrangement was not between the respondent and the women.
KIEFEL J: Exactly. It talks about an assignment. Now, I know that you have been taken away from your argument about construction and treaties, but at least in relation to the direction, but at some point we will have to be told what the facts are.
MR YOUNG: Can I come back to that after the luncheon adjournment, your Honour, if I may?
KIEFEL J: Yes, of course.
MR YOUNG: The point I was going to make about the Conventions in dealing with these other practices is that the Convention goes on in Article 7 to differentiate between the two areas. Article 7 defines slavery in the same way as the 1926 Convention. It then proceeds to define “A person of servile status” as “a person in the condition or status resulting from any of the institutions or practices mentioned in Article 1”.
The 1956 Convention also contained an extension of the provisions to deal with slavery in the strict sense, or stricter sense, in Article 4 and Article 6.2. Articles 3 and 4 were concerned with the slave trade and it is treated as a continuing issue. Article 4 provided:
Any slave who takes refuge on board any vessel of a State Party to this Convention shall ipso facto be free.
That article, Article 4, also appears in the 1958 Geneva Convention on the High Seas.
KIRBY J: What is the point you are making by reference to that article?
MR YOUNG: The point I am making, your Honour, is that the 1956 Convention has a set of provisions addressing slavery as defined in the 1926 Convention and some of those provisions are really addressing the position of a person who is not free, has lost their freedom, yet another group of provisions deal with persons in servile status as being the victim of those other practices. It cannot be said, in our submission, that the 1956 Supplementary Convention shows any intention to widen the definition of “slavery” as enshrined in the 1926 Convention and as adopted in our legislation. That is the point, your Honour.
GUMMOW J: Just going back to your paragraph 17, Mr Young, that Justice Kiefel dealt with. That seems a selective presentation of what appears at paragraph 15 on page 277:
Before the women were cleared to start work in Australia, the Thai recruiters had to be paid a sum of money, described by [one of the persons] as a purchase price for the woman. This was generally $20,000. The Applicant paid 70% of the purchase price of the contract –
et cetera. It is not all that far from the New Zealand case actually.
MR YOUNG: Your Honour, paragraph 15 reflects the evidence as summarised and agreed, subject to the qualifications there added, when the matter was before the Court of Appeal.
GUMMOW J: But the primary indicium of ownership is purchase and sale, is it not?
MR YOUNG: It is a primary, yes, your Honour. The issue here though is ‑ ‑ ‑
GUMMOW J: Dressed up as the assignment of a contract.
KIRBY J: I did not understand you to be here to defend either the legal contractual enforceability or even perhaps the relationship between your client and the complainants. You are here to argue whether it is slavery, whether it is valid under the Constitution and whether the directions given by the trial judge were correct.
MR YOUNG: Yes, your Honour, whatever the ‑ ‑ ‑
KIRBY J: They are the only real issues.
GUMMOW J: The reason why I took paragraph 17 up with you is that one of the indicium of ownership is what the Chief Justice just put to you.
MR YOUNG: Yes, your Honour.
GUMMOW J: That is somewhat obscured by the representation in paragraph 17 in your submissions, that is all I am putting to you.
MR YOUNG: Yes, but, your Honour, what I am putting is that the directions to the jury were inadequate to address ‑ ‑ ‑
GUMMOW J: I understand that.
MR YOUNG: ‑ ‑ ‑ what proofs were required in this case, even accepting all of the prosecutions here of the evidence, your Honour.
HAYNE J: When you come to that, as you will after lunch, not immediately, would you take note of the question then whether in truth there was anything more than an issue of fact for the consideration of the jury? You say there is an additional question of intention and directions about intention and in that regard, when you come to it, not now, is not your contention that there should have been directions about legal concepts; not factual issues, legal concepts of ownership, property and the like?
GUMMOW J: And assignment of contract.
HAYNE J: Yes. Now, those are issues which are joys that await you after the adjournment, Mr Young.
MR YOUNG: I was proposing to come to them, your Honour. The short proposition we make is that the matters we say require direction are no more questions of law than the matter addressed in the second direction, the second element, identified by Justice Eames. That is a question of fact; what is the quality of the actions that impose slavery? Likewise, the question, what are the quality and nature of the actions alleged against the accused? That is exactly the same question governed by exactly the same words in the statute and it is as much a question of fact, it is not a question of law, and I will come to that, your Honour.
GLEESON CJ: Ms Abraham asserted to us yesterday morning that the only issue between the two of you in relation to the judge’s directions was what Justice Eames dealt with in the fourth paragraph.
MR YOUNG: Yes, your Honour.
GLEESON CJ: That is a matter you might like to keep in mind also.
MR YOUNG: Yes, your Honour. Now, moving to other international materials, I will endeavour to be brief. We have addressed it fairly comprehensively in our written submissions. The travaux is fairly comprehensively explored by Mr Allain in his articles. We would say particularly his 2007 article that the Court has been taken to is helpful. The travaux does not indicate any intention to expand the definition of slavery beyond concepts of powers attributable to ownership.
Can I briefly do two things. Can I take the Court the 1953 Secretary‑General’s Report under tab 4 of the folder. I just wanted to say something to explain a bit of the context. The paragraphs from 33 onwards that the Court has been taken to mention two things. One is the actual report of the ad hoc committee as of approximately 1953 which was considering what changes, if anything, need to made to the 1926 Convention. It was the ad hoc committee’s report which referred to other institutions or practices at page 25.
At paragraph 45 there is a reference to proceedings of one of the committees leading to the 1926 Convention and there is a quotation from a statement by the rapporteur concerning a reference to domestic slavery in similar conditions. That goes back to 1926, or before 1926. The reference to domestic slavery in similar conditions were words appended at the end of Article 2, not Article 1 of the draft 1926 Convention, but Article 2 which referred to an exhortation to eliminate all forms of slavery and the words were added at the end “including domestic slavery and similar conditions”.
The history of the elimination of those words is fully discussed by Mr Allain in his 2007 article. This Secretary‑General’s report adds the important point in paragraph 36 that the proviso, that is, provided all of the powers attached to a right of ownership are exercised, was what had to be satisfied if any practice was to qualify as slavery and that was never departed from in 1926 and not departed from by the Secretary‑General’s report. Mr Allain’s article addresses the matters I have just mentioned. That is under tab 6 and can I refer the Court to page 4 of the article.
KIRBY J: What page?
MR YOUNG: Page 4, your Honour, of Mr Allain’s 2007 article, tab 6. In the middle of the page the Court will see appended at the end of a draft Article 2(b) the words about domestic slavery and similar conditions. Then what follows between paragraph 7 and 10 is an explanation of the fact that those words were deleted on the ground that where domestic slavery manifested powers attaching to a right of ownership they already fell within the definition.
The burden of that is that all that was intended to be covered by the definition was an exercise of powers attaching to the right of ownership and not practices such as domestic slavery and similar conditions where that proviso was not satisfied. Therefore, one does not get out of the 1953 Secretary‑General’s report what was suggested by Mr Walker and Mr Bennett.
Can I make one other observation which picks up something the Chief Justice said? Justice Eames notes the disagreement between Mr Allain and Mr Weissbrodt concerning the travaux and the scope of the meaning of the definition of “slavery”. Justice Eames addresses it at page 312 to 315. The observation is simply this, that Mr Allain was actually reviewing in detail all of the travaux for the relevant conventions. Mr Weissbrodt’s 2002 remarks are part of a broad review of contemporary forms of slavery for the UN Office of the High Commissioner, which was commissioned of Mr Weissbrodt’s organisation, called Anti‑Slavery, some time before 2002.
There is perhaps an element of advocacy in Mr Weissbrodt’s article about the need to expand the definition of “slavery”, or as Mr Allain was undertaking, a more academic task of investigating the actual travaux preparatoires of the 1926 Convention and the 1956 Convention as well. Later treaties do not depart from the definition of “slavery” in the slavery convention. Understood in the sense I have tried to explain, the International Covenant on Civil and Political Rights distinguishes between slavery, servitude and compulsory labour. The Rome Statute of the International Criminal Court from 1998 defines crimes against humanity, including enslavement. “Enslavement” was defined in that Convention in Article 7 as follows:
exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.
The noticeable feature is that in 1998 the international community adhered to a definition of “slavery” in strict terms, or a definition of “enslavement” and used the same phraseology: “exercise all or any of the powers attaching to the right of ownership over a person”. Of course there are treaties that attack particular practices and they do it in defined terms. They do not invoke any reference to rights of ownership as the discrimen. Those other treaties support offences that we now find in our legislation such as the debt bondage provision.
But none of that gainsays the proposition that the course has been taken in the international community of leaving unmodified, unextended, the definition of “slavery”, which takes its colour from historical practices and that has been a deliberate course, as Mr Bassiouni explained in his article. That article is, we think, unfairly criticised on the grounds that his conclusion cited only the 1926 Convention itself.
KIRBY J: Where is this article?
MR YOUNG: I am not sure if the Court has it. It is an article “Enslavement as an International Crime” by Monsieur Cherif Bassiouni. I think the Court, fortunately, may have it.
GLEESON CJ: We do.
MR YOUNG: It is page 459 that we quoted. The passage we quoted is the second paragraph, commencing, “The primary reason”. Footnote 56 cites the 1926 Convention, but that is a conclusion to the analysis that proceeds over the previous 10 or so pages in which all of the various international materials are considered and it is that analysis that supports the conclusion. For instance, at page 457 there is reference to a 1975 Working Group on Slavery and the second sentence is:
The definitions in the existing relevant conventions did not, therefore, cover the concept of slavery under all its present aspects.
GLEESON CJ: How was that proposition on page 459 reconcilable with the expression “any or all” in the definition of “slavery”?
MR YOUNG: I am not sure it is entirely reconcilable, your Honour, but if we are speaking about some but not all of the powers being exercised, they must nonetheless be powers that are only reasonably explicable on the basis that they derive from or pertain to a right of ownership. The “any and all” becomes, of course, a necessary legislative technique when one comes to the offence provisions, because then you are concerned to make criminal actions that have that same attribute, namely, on any reasonable view, they bespeak a right of ownership being asserted even though the actual action that is charged may not be all of the relevant actions.
KIRBY J: Does Professor Bassiouni express an opinion specifically on the question of expanding the notion of slavery into the type of activities involved in this case?
MR YOUNG: No, not beyond those pages that I think run from about 446 to 459, your Honour.
HAYNE J: But do you read the definition, or would you have us read the definition of “slavery” as if it read “the condition of a person over whom all of the powers attaching to the right of ownership could be exercised, but in respect of whom any or all is”? That is, do you say it is an essential element that to find slavery that all of the powers of ownership could be exercised in respect of the person?
MR YOUNG: The answer to that, I think, your Honour, is yes. Perhaps we might substitute “are exercisable” for “could be exercised” because it is a question of capacity rather than probability ‑ ‑ ‑
HAYNE J: Yes, and we are talking about fact, not legal right, of course, I understand that.
MR YOUNG: Yes I know, your Honour.
HAYNE J: But you say that the essential element is that the condition is such that all of the rights of ownership could be exercised, all of the powers of ownership?
MR YOUNG: Yes, but we would not be advocating that it should be necessarily construed that way, your Honour. That may be a consequence of the construction that we have advocated because you do not need to go further than to say the powers that are being exercised, being some or all or any, are powers that are only reasonably explicable on the basis that they are powers that pertain to or derive from a right of ownership.
HAYNE J: But the relationship between the two actors is one in which one purports to own the other.
MR YOUNG: But there may be much more than two actors, your Honour. In this case the way it was put to the jury by the Crown was that slavery was imposed by a group, not by the respondent but by a group and by antecedent actions.
GLEESON CJ: One of the typical powers or one of the typical rights attaching to ownership of a slave, as the Secretary‑General pointed out in that list of typical powers, is a right of inheritance, that a slave was somebody ownership of whom could be transmitted by inheritance.
MR YOUNG: Yes.
GLEESON CJ: In other words, if you owned a slave and you died your heirs would then own the slave.
MR YOUNG: Yes. Your Honour, that may be why there is a difference between what we are putting and what Justice Hayne put to me a moment ago which is that on our construction you do not need to conduct a survey as to whether all of the powers are excisable, you just need to identify those powers which are being exercised and make an assessment whether the powers that are being exercised are attributable to rights of ownership without having to exclude the field.
GLEESON CJ: Just before we adjourn, can I ask you a minor factual matter about the evidence in this case, and you may not know the answer off the cuff, but was there any evidence in this case about whether there was any system of marketability of these complainants as between what I might call different entrepreneurs in this line of business?
MR YOUNG: I will have that checked over lunch, your Honour.
GLEESON CJ: Thank you.
MR YOUNG: Thank you.
GLEESON CJ: We will adjourn until 2.00 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.03 PM:
GLEESON CJ: Yes, Mr Young.
MR YOUNG: To complete what we wish to say about the international materials, I need to make a few further submissions. First, we submit that the case of Siliadin v France is of assistance. It is not correct that the statement was obiter or per incuriam. The question squarely arose because the issue in the case was whether the French criminal provisions under which the charges were laid complied with Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Article 4 of the Convention provided that:
1.No one shall be held in slavery or servitude.
2.No one shall be required to perform forced or compulsory labour.
That is at paragraph 52, page 20 of the decision. The Criminal Code provisions that were the subject of the prosecution are extracted at page 9, paragraph 46. The criminal prosecution was ultimately overturned and a civil finding was made, but only that, and hence the disappointed complainant took her case on the basis of Article 4.
So the question squarely arose whether what had occurred amounted to a holding in slavery or servitude and, if so, whether the French provision adequately gave effect to the prohibition on such conduct. Hence, what was said about the meaning of slavery and the meaning of servitude was directly in issue in the case. I do not need to go again to the decisive paragraphs.
KIRBY J: But what are we to do with this? We have one international body saying one thing and another international body saying another thing. I mean, where is your submission going on this? You presumably say we should prefer the European Court.
MR YOUNG: The next step, your Honour, is to say that the international tribunal in the Kunarac case did not say anything to the contrary. The submission is that there is no international decision or material to the contrary of the core meaning of slavery and there is really no support for the proposition that subsequent events have somehow expanded the concept of slavery beyond the conception that existed at the time of the 1926 Convention. That is the principal submission and hence it is that definition which was deliberately adopted. It might be described as a narrow definition, but it is the core definition that was deliberately adopted by our Parliament. That is our submission.
KIRBY J: The Parliament added a few words of its own.
MR YOUNG: I will deal with those separately, if I may, your Honour. None of the parties suggests those words make a difference. The Commonwealth Attorney‑General does not suggest those words add anything. They are subservient to the requirement of powers attaching to the rights of ownership. It is only HREOC which in a somewhat muted fashion suggests those words achieve some kind of extension. But I will deal with that separately, if I may, your Honour.
Can I turn to Kunarac. In our submission, the case does not advance an alternative broader meaning of slavery from that for which we have contended. Rather, the case is primarily concerned with a practical question of what factual circumstances do you look at in considering whether the traditional definition is satisfied. Can I make that good by going briefly to Kunarac. The indictment in question was for enslavement within the meaning of the relevant statute. There was no definition of enslavement, so therefore the question was, what was the general meaning of the expression “enslavement”?
At the trial level, can I direct without reading the Court to several paragraphs from the trial decision, paragraph 533. That paragraph commences a discussion of slavery or related concepts. There is no suggestion in the paragraphs that follow that the definition has expanded. The conclusion is at 539 and 540 which simply mirrors the language of the traditional definition. Then the judgment simply turns to address indications of enslavement and we have no quarrel with any of that, but the various indications are not elevated as some kind of substitute for the definition.
Turning to the appeal decision, the appeal decision followed a similar course. I direct the Court to paragraph 117. There can be no argument that there are contemporary forms of slavery other than African slavery, but paragraph 117 does not suggest that the definition has in its core altered in any respect. The concluding words on my print at page 35 say this:
in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of “chattel slavery” but the difference is one of degree.
That is not moving away from the concept that the powers must be of such a nature or quality that one can say of those powers they are not reasonably explicable on any basis other than the fact that they involve an assertion of powers of ownership treating someone as if property. Then the Appeal Chamber turns to consider factors or indicia, again not elevating any of them as a substitute for the definition. The conclusion in paragraph 122 is entirely compatible with the traditional definition of “slavery”.
There is, if we may point out, only a limited contest between the parties here about the meaning of slavery. We say that for this reason. The appellant has not addressed it. The Commonwealth Attorney‑General does not dispute that powers of effective ownership lie at the core of the definition of “slavery” - Commonwealth submissions at paragraphs 20 to 27, 33 and 41. They acknowledge that the definition is unchanged since the 1926 Convention in paragraph 7 of the Commonwealth Attorney-General’s submissions.
KIRBY J: Yes, but the Commonwealth does submit that it is of varying content, the denotation has changed and that we can have regard to international customary law in order to give a wider ambit to the denotation.
MR YOUNG: Well, your Honour, there may be a flavour of that. I do not know if it has ever been squarely said or submitted.
KIRBY J: That is how I understood it. Otherwise why are we all here?
MR YOUNG: Well, it is certainly said and submitted by HREOC, your Honour, that it is an evolutionary concept and the statute picks up the evolutionary notion or concept which has expanded over the years. Now, in our submission, that does not find any support in the subsequent international treaties and, moreover, it is not consonant with the standard approach to the identification of treaty obligations. Can I take the Court the text by Sinclair on the Vienna Convention on the Law of Treaties. I will hand up copies.
The passage we have handed up addresses the question whether in construing and applying a treaty you regard its meaning as fixed at the time of the making of the treaty.
KIRBY J: What year is this text?
MR YOUNG: It is 1984, your Honour. Can I draw attention to several passages at page 139, in the middle of the page just above the French quotation, the sentence before that? There is then a discussion whether changes in international understanding can be taken into account and the conclusion at 140 is not generally – only in very limited circumstances. That appears towards the foot of page 140. Reading from about 10 lines from the bottom:
there is scope for the narrow and limited proposition that the evolution and development of the law can be taken into account in interpreting certain terms in a treaty which are by their very nature expressed in such general terms as to lend themselves to an evolutionary interpretation.
That was by reference to such things as the concept of sacred trust in the context of the Namibia case. It would not apply in the context of a definition of the kind we have here, which has remained in international treaties firmly fixed and which has a particular historical meaning. Indeed, the US cases are instructive, although the US has a different history in relation to the 13th Amendment.
The upshot of the line of cases running from Shackney, Mussry to Kozminski was that the Supreme Court held that the expression “involuntary servitude” was to be interpreted by reference to its special historical context and although literally the words could be stretched so far, it was not to be extended – that is, involuntary servitude as a concept – to all oppressive forms of service achieved by various forms of coercion or the like. The same approach seems to be generally indicated by the Sinclair text in relation to international treaties.
KIRBY J: Well, the Sinclair text has got a bit of each side here, a bit like the decision of the International Court of Justice. It is not very stable; the principle does not seem very stable.
MR YOUNG: Your Honour, it does seem to admit of a limited exception – we would accept that – but beyond that you interpret the treaty in accordance with the state of international law at the time of its making.
KIRBY J: This must have come up in previous decisions on the implementation of treaties. We have never said anything about this?
MR YOUNG: Not this issue of contemporaneity, your Honour. Applicant A is the leading decision dealing with it, which explores Article 31 of the Vienna Convention.
KIRBY J: That is a good example, is it not? I think the reasons in that – Justice Gummow, Justice McHugh and my own, I think, in Applicant A pointed out that recognised social group began in the context of the European mass migrations of people fleeing communism, but then it grew to take on a whole range of other meanings. Sometimes phrases are pregnant with possible new interpretations.
MR YOUNG: Yes, your Honour, but we would submit that when you have a definition like this definition, repeatedly adhered to, that is not in the same category as words like sacred trust or – I forget the particular words of Applicant A, but there was an expression ‑ ‑ ‑
KIRBY J: But even with slavery, I mean, in 1926 it probably meant one thing to most people, but after the Holocaust and the war, then slave labour, pressed into service of the axis powers, it took on a new connotation.
MR YOUNG: Well, your Honour, we would submit that new forms of conduct might fall within the existing connotation. That is different from saying that the definition has expanded itself. We say what the materials indicate is that this is an expression that falls into the former category, that is, there has been no expansion of the definition. Other forms of conduct might be caught by it which were not envisaged which had a different concept of slavery in mind, but that is different from saying there has been an expansion or alteration of the definitional requirements to identify slavery.
Now, that review of material leads me to this submission concerning Parliament’s intention. Our submission is that the definition has not altered over time and its meaning is discernible from the materials. We say Parliament intended to adopt that meaning. Alternatively, even if international treaties and the like have developed an expanded or evolved concept of slavery, in this case we would say the materials make it fairly plain that Parliament intended to adopt the traditional meaning of slavery, not any different or altered meaning ‑ ‑ ‑
KIRBY J: That is although Senator Macdonald referred to sexual slavery, or sexual ‑ ‑ ‑
MR YOUNG: By way of distinguishment, your Honour. Other offences were created to deal with other practices. In adopting the definition of “slavery” for these offences, Parliament, in our submission, showed that it intended to adopt the core traditional concept and took the view that other practices analogous to slavery would be addressed by other specific provisions.
KIRBY J: Mr Young, Senator Macdonald a t 3076 of the Hansard said:
may also apply if the control over the sex worker is so far‑reaching that it effectively amounts to a right of ownership over her or him.
MR YOUNG: We accept that, your Honour. I was not meaning to dispute that proposition, but it still adds the qualification that it must be so far‑reaching as to effectively amount to a right of ownership. It is that element that we say is unchanged, your Honour, and that Parliament intended to retain by this definition.
KIRBY J: But we have a statute and it is intended to operate in the real world of Australia, in which you are not going to have slaves in shackles, and therefore the question is, is there an apt jury question of fact that can be framed that can allow a jury to distinguish between a case of slavery in the Australian context in a brothel and distinguish that from merely a case of very oppressive employment.
MR YOUNG: Yes, and the practical guidance could be framed in Senator Macdonald’s language, that is, are the facts relied upon here so far‑reaching in their impact upon the condition of the victim as effectively to amount to a right of ownership over her.
That, we would say, is entirely consistent with what we have said ought to be construed as the meaning of the definition. The adoption by Parliament, if that was its intention, of the definition for which we have contended, or the meaning of the definition, would involve no conflict or lack of conformity with international law or subsequent international treaties. It would simply mean that Parliament has pursued international obligations by retaining slavery in its well‑understood sense and addressing other practices by other provisions. There is no lack of conformity with international law in adopting that mechanism for addressing the problem, rather than trying to push it all within the envelope of slavery.
I need to turn to the elements of the offence which is really the second stage of our argument and this will come directly to the adequacy of the direction to the jury and Justice Eames’ criticisms of it.
GLEESON CJ: Just before you go into that – and you may wish to reserve your answer to this question – we find the judge putting the defence case to the jury between pages 187 and 194 of volume 1. Was there any ground of appeal to the Court of Appeal that the judge failed adequately to put the defence case to the jury or may we take what the judge says between pages 187 and 194 as adequately summarising the defence case at the trial?
MR YOUNG: I am just checking, your Honour. I do not think that there is anything. I think the only exception to what your Honour put to me would be possibly at page 307. In the ground of appeal summarised by Justice Eames at page 307, paragraphs 3 and 4 might be regarded as a criticism of the way in which the trial judge put the defence case. But subject to those matters, your Honour, I do not think there is any other criticism of the completeness of putting the defence’s case.
GLEESON CJ: Thank you.
KIRBY J: At some stage, not necessarily now or not necessarily in oral argument, as I asked Ms Abraham to give a list of the facts and particulars that they relied on, I would like to know exactly what are those facts and particulars that the defence relied on or relies on in this Court to indicate that this is not slavery of the conventional kind for which you argue but that there were too many indicia of freedom in the conduct of the complainants.
MR YOUNG: Yes, your Honour. We will review what we have but at the moment, your Honour, we have endeavoured to set that out in the submissions on the cross‑appeal and in a further document addressing the facts which we distributed at lunch time. I will not delay now over those. Can I go to the elements of offence and explain our submissions, first by summarising the submissions we make and then going on to elaborate them.
The first submission is that when Chapter 2 of the Code is properly applied, it is clear that there is more than one physical element engaged in each offence. The Crown case on the other hand is that there is only one physical element, which is conduct. Possessing a slave or exercising other powers attaching to ownership, that is said to be one physical element. In our submission, there is clearly more than one physical element and that attracts the different elements of intention in section 5 and I will develop that.
The alternative submission is this. Even if properly analysed there is only one physical element in each offence, namely, conduct, you arrive at the same result in any event. That is because the fault element of intention would apply to the whole of the conduct that is prohibited which would embrace a fault element in relation to the person being a slave and the powers being exercised being of the stipulated nature or quality. It does not matter at the end which analysis you follow, you arrive at the same result.
The consequence of that, in our submission, is Justice Eames’ conclusions about the inadequacy of the direction hold good. They do not depend in the end upon the argument whether the Code stipulates one physical element or more than one physical element when applied to section 270. Of course, Parliament’s intention is that the Code should be applied now to govern. The alternative submission is essentially that if you put the Code to one side and you treat the section as simply identifying one piece of conduct, then the process of reasoning long followed at common law would say you have attendant circumstances and the requirement of intention has got to apply to those attendant circumstances. They are external factors in the language of Sir Owen Dixon necessary to the establishment of the offence.
Can I go to the provisions of the Code in Chapter 2. I know the Court has been taken to this. The relevant provisions we would say are 3.2, 4.1, 5.2, and 13. Perhaps not directly relevant, but I should also refer the Court to 9.1 which is a mistaken belief.
When one analyses section 270.3 it calls for, in our submission, this kind of stepwise analysis. First, what powers have in fact been exercised over the victim. Leaving aside for the moment the question of the nature or quality of those powers, what powers have in fact been exercised? The second element that springs out of the language of subsection (1) is the condition of the victim, the powers must be exercised over a slave, and substituting the words of the definition that means the victim must be in a condition where there are being exercised over the victim all or any of the powers attaching to the right of ownership. That condition of the victim is a circumstance that forms part of the offence.
KIRBY J: Well, you say that, but that is not accepted by the appellant.
MR YOUNG: No, that is so.
KIRBY J: So how do we resolve that question?
MR YOUNG: Well, your Honour, one resolves it by looking at the language of 4.1 and asking yourself the question, under this section is the condition of the victim, that is, a slave as defined, a circumstance in which the prescribed conduct must occur for an offence to be committed? If it is such a circumstance, then it is a separate physical element and it must attract a fault element pursuant to 3.2(b). What the Code does is to codify effectively the process of reasoning that used to apply at common law to mens rea, as explained in He Kaw Teh and subsequent cases, but this is the framework of analysis.
KIRBY J: The appellant says you put square brackets around “possess as a slave” and that is the conduct.
MR YOUNG: Yes, your Honour.
KIRBY J: It is a composite notion. Now, how do we resolve that argument?
MR YOUNG: Yes, but that is inconsistent with the Crown’s acceptance that it had to be proved that the victim was known to the accused to be subject to such actions, facts or circumstances as to be in the position of a slave. They accept that. They seem to say it flows out of the intention that attaches to the conduct rather than analysing it as a circumstance. But the requirement of Chapter 2 is that you ask yourself the question, is it a circumstance in which the prescribed conduct must occur, and then the process of reasoning unfolds under Chapter 2. You would then be taken to section 5.2(2):
A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
GLEESON CJ: What difference does it make to the outcome of the present case whether you treat the condition as a circumstance or as part of the conduct? In the drug case that we were referred to in argument in which, I might add, the prosecution unsuccessfully attempted to persuade the Court that there was this two‑step analysis and the nature of the drug was a circumstance, that was only material as I understand that case because there was a question of recklessness.
MR YOUNG: Yes. That is Saengsai‑Or. That is relevant there because there was no express prescription in the offence about the fault element. So you went to the default element for circumstances and the default element for circumstances is addressed in 5.6(2), “If the law creating the offence does not specify a fault element”, and it is a circumstance, the fault element is recklessness.
GLEESON CJ: But we are not concerned with that.
MR YOUNG: No, we are not, your Honour, but I will come to the case but we say a strained interpretation of the Code was adopted to avoid what was felt to be an undesirable outcome, namely, recklessness became by force of Chapter 2 the fault element, but because of our alternative submission, your Honour, it ought not to make a difference here. That is because intention attaches to every element of the conduct and what I was going to go on to submit is that there is a third element of the conduct that is prescribed by section 270.1 which is wrapped up in subsection (1), namely, that the powers that the accused exercises, not the powers that somebody else exercises to make the person a slave, but the powers the accused exercises must have a particular quality or nature. That is to say, they must be powers attaching to the right of ownership and that is my reference to the word “other”. That qualifier “other powers attaching to the right of ownership” that attaches both to possession and to other actions amounting to an exercise of power.
GLEESON CJ: Did Justice Eames treat the condition as a circumstance or as part of the conduct or did he not deal with the matter?
MR YOUNG: He did not deal with it in this level of analysis in relation to the code. But it would seem he treated it as a circumstance from some passages that appear around about paragraph 177.
GLEESON CJ: I gather that nobody at trial troubled Judge McInerney with these considerations?
MR YOUNG: No, that is not entirely true, your Honour. The judge himself considered that 5.3, being knowledge, was the relevant requirement of the Code to direct the jury to in relation to the condition of the victim.
GLEESON CJ: Was he concerned about whether the condition of the victim was a circumstance or a part of the conduct?
MR YOUNG: Well, it is not clear how his Honour got to knowledge. The analysis of offence would not normally take one to knowledge, because here at subsection (1) is introduced by the words “intentionally” applying to all of the elements in subsection (1). So, his Honour really ought not to have got to 5.3 knowledge. His Honour ought to have got to something similar, which was 5.2, a belief that particular circumstances, that is, the condition of imposed slavery, existed, but his Honour’s group of documents, the jury guide, included section 5.3 and he directed the jury in terms that the jury had to find that he was satisfied that the accused knew of a circumstance, being the condition of slavery, because she was aware that it exists or will exist.
GLEESON CJ: Do you suggest that the Crown had to establish that the respondent recognised these conditions as conditions of slavery?
MR YOUNG: No, your Honour. The relevant question is belief or intention. It is best expressed, we would say, in Justice Eames’ suggested directions at page 351 in the middle of the page.
KIRBY J: Which paragraph?
MR YOUNG: It is the second‑last paragraph of the answer to the question and the last sentence:
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.
That is different from a recognition or appreciation. His Honour made that point ‑ ‑ ‑
HAYNE J: Just before you depart from that, what do you say his Honour means by that, “in the belief that the complainant was no more than mere property”? What is the information or instruction thus conveyed to the jury?
MR YOUNG: That is giving some practical content to the requirement of the section that there be exercised by the accused powers attaching to a right of ownership. His Honour might have expanded on what he meant.
GLEESON CJ: He did, in the next paragraph, did he not?
MR YOUNG: He did.
GLEESON CJ: Reading that passage as a whole, I thought that the final paragraph was an elaboration of the last couple of lines of the preceding paragraph.
MR YOUNG: We agree, your Honour. That is how we read it. It is illustrating the significance of the sentence I read and elaborating it by giving some further meaning to the reference to mere property.
KIEFEL J: Was it necessary in his Honour’s draft direction here to have also suggested that the jury might bear in mind that in relation to knowledge and belief the accused had paid for the workers?
MR YOUNG: Paid for?
KIEFEL J: Paid for them and in that sense they became a commodity.
MR YOUNG: There was evidence of that in four cases but not the fifth.
KIEFEL J: Well, with the four cases, then.
MR YOUNG: Yes. Well, your Honour, that was one of the pieces of evidence applying to four of the women that certainly should have been the subject of direction by the trial judge.
KIEFEL J: Do you accept that it is relevant to the accused’s state of mind if she has paid money to a broker for the women?
MR YOUNG: Yes, for four of the five; yes.
KIEFEL J: And does that convert them to a commodity?
MR YOUNG: It may. That would be the matters submitted to the jury.
KIEFEL J: But it affects the correctness of the direction, surely?
MR YOUNG: No, it does not affect the need for a direction as to the state of belief that needs to be established as an element of the offence. That stands independently of the question, what evidence is there that bears upon the jury’s finding about whether that belief existed or not?
KIEFEL J: Are you distinguishing between the actions of the accused towards the women and the antecedent – I will use the word “purchase” but I do not mean that in the legal sense of them.
MR YOUNG: Well, you must, your Honour, because ‑ ‑ ‑
KIEFEL J: Because that is the construction you put on section 270?
MR YOUNG: No, not just because it is the construction. The case that was presented was that slavery was imposed by a group of others, including the accused but not limited to the accused. So you had other people’s actions irrelevant to the element of the offence as to whether slavery has been imposed. So in the second element that Justice Eames identified in requiring that the accused have a belief that certain circumstances existed, that was a belief about the nature of powers exercised by others.
KIEFEL J: That is why I asked whether you were drawing a distinction. Are you saying that it was no part of the Crown case that the accused purchased the women, that they therefore became in the sense of property a slave and that the offence was complete once the accused possessed the women as slaves?
MR YOUNG: That was the Crown case, your Honour. I am not disavowing what the Crown case was. What I am saying is that the Crown case had to address the relevant elements within subsection (1).
KIEFEL J: I am sorry, the point I am trying to put to you is that possession of a slave, a person put in that condition by an antecedent contract, does not require an examination necessarily perhaps of the conduct of the purchaser towards the person said to be the slave. The mere having them in your possession with an element of control would suffice.
MR YOUNG: No, your Honour. Under Chapter 2 and, indeed, at common law, if we were applying it, to satisfy the elements of this defence the accused would have to have a belief that the woman was in a condition of slavery, that is, the powers that had been exercised over her were of a particular nature or quality. Now, that might be readily established by the kind of evidence that your Honour identifies.
KIEFEL J: No. What you are doing is focusing upon the actions of the accused towards the person. You are denying any relevance to the antecedent purchase.
MR YOUNG: No, I am doing both, your Honour. I am saying that the section requires an analysis of the actions of whatever persons took place that imposed the condition of slavery in a given case. Let me assume this, your Honour, that the only actions are the actions of the accused. Those actions are said both to impose slavery and to be a subsequent exercise of power over an existing slave. That kind of case where the only relevant conduct is the conduct of the defendant would probably attract 5.2(3), that is, the accused would have to have the intention with respect to a result.
In other words, the result of her conduct would be to impose a condition of slavery, so in that kind of case there would have to be an intention to bring about a condition of slavery or an awareness that it will occur as a result of the actions. That would be the fault element in that case. But in this case we had actions of other people alleged to have imposed slavery and actions of the accused subsequent to the imposition of slavery alleged to be a contravention of the section.
GLEESON CJ: Well, it appears from page 38, line 15, and page 42, line 9, and page 55, line 9 that the Crown began its case with the purchase ‑ ‑ ‑
MR YOUNG: Yes, your Honour.
GLEESON CJ: ‑ ‑ ‑ and said, in essence, it was the purchase followed by the subsequent exercise of control that was the conduct that inculpated the respondent, but we are now considering a criticism by the Court of Appeal of the trial judge’s failure to tell the jury adequately what intention they had to find in relation to that conduct.
MR YOUNG: Yes, your Honour.
GLEESON CJ: We agree that that did not include an appreciation of or a reflection upon the matter of slavery, the legal concept of slavery. The trial judge left it to the jury, as I understand it, on the basis that all that the respondent had to appreciate, having purchased the woman or the contract, he said it did not much matter which, was what she was doing to the woman in terms of the control that she was exercising, and whether or not she put two and two together and linked that with slavery is beside the point. That was what the trial judge said.
MR YOUNG: No, not quite, your Honour. The trial judge went the next step and said that because of the words “over a slave” the prosecution had to prove beyond a reasonable doubt that the accused knew or believed that the victim had been placed in a condition of slavery by someone having exercised over her powers attaching to a right of ownership. That was the subject of an explicit direction of the trial judge.
GLEESON CJ: Well, there is an ambiguity in the way you just put it. There may have been an ambiguity in the way the trial judge put it, but to say, “believed that the woman had been placed in a condition of slavery”, might mean believed that the woman had been placed in a certain condition, being a condition which the law happens to identify as slavery, but whether she knew that or not does not matter.
MR YOUNG: No, well, the question of the legal issue, can I put that to one side, your Honour? But can I direct your Honour’s attention to the charge at 219 of volume 1 at lines 6 to 11? The question of the legal definition is put to one side at 220 between lines 19 and 25, but the judge directed that the accused, at line 23:
must have knowledge . . . that this person’s condition is such as meets the definition as defined by the law . . . She must have knowledge of the condition which amounts to slavery.
GLEESON CJ: She does not have to have knowledge that the condition amounts to slavery, does she?
MR YOUNG: No. Then over the page at 221, lines 11 to 15 and 17 to 23. That, as we read it, your Honour - and there are like passages at 227 to 228, particularly 228, lines 9 to 12 - that direction is a direction about the state of mind of the accused and its requirement that the accused have a belief or awareness that there have been exercised by somebody powers attaching to the right of ownership and that those ownership powers have been exercised over the woman. So that the direction just goes beyond the fact that certain actions have taken place. The direction addresses the nature and quality of the powers that must be exercised over the person to make the person a slave and requires that it be proved that the accused have an awareness or belief that the powers that brought about that position were of a particular nature or quality.
Now, when one goes back to the section, your Honour, and bearing in mind that here the way it was presented was that the condition of slavery was imposed by the actions of a number of people, you then in that light, turn to the section. The reference to slavery being imposed by the actions of a number of people is at paragraph 76 at page 325 of Justice Eames’ judgment. It is the sentence at the top of page 326. Can I illustrate the point, your Honour, perhaps by referring to the one woman who was not purchased, a Ms K? As the trial judge points out, no amount of money was paid by the accused in respect of this woman. That is paragraph 10 of the judgment at 305 and that is confirmed in the summary of facts presented to the Court of Appeal at paragraph 15 at appeal book 277.
So there the condition of slavery is brought about, not through any purchase - that plays no part in the accused’ conduct. There might be evidence about what other people did in relation to that woman’s contract. Now, that means that when you are talking about the state of mind requisite under these provisions for the offence to be committed by the accused, in the case of that woman, the conduct reduces to exercises of various powers of control and so on.
HAYNE J: Can I just understand paragraph 15 a bit better than I do. Is it that no sum was paid to the recruiters in respect of that woman, or that the respondent in this Court paid no contribution to the recruitment amount?
MR YOUNG: It is the latter, your Honour.
HAYNE J: So somebody paid.
MR YOUNG: The evidence more fully was that this woman had come to Australia, arranged by others, and worked for others at a different brothel and then, dissatisfied at working there, she had come to work at the accused’s brothel.
CRENNAN J: She still had the so‑called debt arising out of a purchase by somebody.
MR YOUNG: Yes, but a purchase by other people, and that arrangement was with other people.
GUMMOW J: But what was her “debt” situation when she came to your client’s establishment and thereafter?
MR YOUNG: The evidence was to the effect that that debt, arranged between others, was partly paid.
GUMMOW J: By whom?
MR YOUNG: By her services to others.
GUMMOW J: And thereafter?
MR YOUNG: And thereafter her services for my client’s brothel resulted in $50 per service being attributed towards that other arrangement.
GLEESON CJ: This is what I was asking you about before lunch – the question of marketability. What were the arrangements pursuant to which, following the transaction that you have just described, the respondent became entitled to the benefit of the economic produce of the services of this particular woman?
MR YOUNG: Well, to some extent, your Honour, because in that regard she was in the same position as other employees at the brothel - for each service the brothel owner took a certain amount of money.
GLEESON CJ: Yes, but before this transaction there were other people to whom the woman was indebted, whatever exactly that might mean.
MR YOUNG: Yes. That remained unaffected.
GLEESON CJ: She worked for their benefit. After this transaction she worked for the benefit of the respondent.
MR YOUNG: In the same way as other non‑contract brothel workers did, she continued to work for the previous debt arrangers, if I can call it that, in that part of her entitlement went towards that obligation. But my client’s economic benefit from each service in the case of this woman was no different from that of any other voluntary Australian worker.
GLEESON CJ: But there was an assignment of the benefit of a contract.
MR YOUNG: No, not to my client in this respect.
GLEESON CJ: What was the transaction?
MR YOUNG: The transaction was that she came to work at my client’s brothel and in respect of each service my client took the same fee that she took from other girls. The balance was applied by the worker to her contractual arrangement with other people.
KIEFEL J: When you say “applied by the worker”, you mean applied by your client towards the other ‑ ‑ ‑
MR YOUNG: The point I am trying to make, your Honour, is that that was not to the economic benefit of my client.
KIEFEL J: I understand that.
GUMMOW J: But who got the cash? Who do you say applied for the benefit? Are we talking about book entries? What is going on? We are not trying a tax case, you know, about accounting?
MR YOUNG: I am told, your Honour, that the evidence is that the other arrangers collected the balance.
GUMMOW J: Yes.
KIRBY J: Was there evidence that any of the workers from overseas left immediately after their passport was returned?
MR YOUNG: Well, the ones in question here, your Honour, two stayed on and continued to work, free of any debt contractual arrangement ‑ ‑ ‑
KIRBY J: The three were the three who gave evidence, is that the three ‑ ‑ ‑
MR YOUNG: There were five who gave evidence, your Honour. Two of them had finished their contract and continued to work at the brothel, three had not completed and of those three I think one had only recently arrived.
GUMMOW J: Is there evidence as to the method of payment by clients at your client’s establishment? Some of it by credit card, some of it by cash?
MR YOUNG: The books of the brothel, your Honour, were in evidence. I cannot assist you, but I assume there are various means of payment, your Honour.
GLEESON CJ: I suppose the amounts that we are talking about are all net of tax?
MR YOUNG: No, I think they pay tax, your Honour.
GLEESON CJ: Yes.
MR YOUNG: The point I was trying to make about the position of the woman was that you have in the context of the offence provision the conduct being engaged in by more than the accused, which is relevant to the satisfaction of the elements of the offence, and therefore the circumstance that the person is placed in a condition of slavery and the requirement of the section that the powers exercised by the accused, which might be different powers, be powers attaching to a right of ownership, are both circumstances prescribed by the section.
They are external factors that need to exist and to be proved to satisfy the terms of the section. When you apply Chapter 2 to an offence so structured you come to the conclusion that there is conduct, that is, the act of possession, or the act of use, without for the moment trying to address the nature or quality of that act or the impact on the victim, and then there are the other requirements that the victim is in a position of slavery and that the powers actually being exercised by the accused also have a particular nature and quality.
For those reasons, in our submission, when you apply Chapter 2 you do reach the conclusion that there are circumstances beyond the conduct which are prescribed by the legislation as elements of the offence, and if that is right they attract a separate fault element, and then the separate fault element requires a direction. His Honour, in our submission, was perfectly correct to give that direction about the necessity to establish the accused’s beliefs about the nature and quality of the actions of others that it imposed slavery and the nature and quality of her own actions. Without that direction the relevant elements of the offence and the attaching fault elements were not being addressed for the practical guidance of the jury.
As I said earlier, it would be an odd thing if, as the trial judge directed, the accused had to have a certain state of awareness and belief about the nature of the actions that imposed slavery, and let us assume they are all actions of other persons. She has to have a certain state of knowledge and belief about the actions of other persons, but no state of knowledge or belief about the nature or quality of her own actions that are alleged to be a contravention of the section.
The first step is accepted by the trial judge and he gives a direction about it, but not the second step and that is why Justice Eames pointed out that the knowledge and belief had to attach as well, or had to exist and be proved in respect of the accused’s own actions to satisfy all of the elements of the offence.
Indeed, one can turn that proposition around and illustrate it another way by saying, if it is relevant to give a direction about the beliefs concerning the actions that impose slavery, that is to say, those actions have a particular nature and quality and involve treating the person as property, then surely it is relevant to give the same direction about the accused’s own actions.
HEYDON J: Can you just relate this current submission of yours to the four elements stated on paragraph 77, page 326?
MR YOUNG: Yes, your Honour.
HEYDON J: You say the trial judge was right to give a certain direction.
MR YOUNG: Yes.
HEYDON J: Where does Justice Eames reflect that correct?
MR YOUNG: In the first and second directions. They go to the circumstance being that the worker, the victim, must have been reduced to a condition of slavery and that in respect of that condition and how it was imposed the accused must have known that she was being treated as no more than property, that is to say, in the language of the definition, there were being powers exercised over her that attached to or indicated of their very nature the powers of ownership were being exercised. That is what the trial judge directed about. He did not make any direction about the accused’s beliefs as to the nature and quality of her own actions.
The nub of it appears in a couple of other passages, if I could take the Court to them. Justice Eames goes on to express, at page 329, paragraph 84, in the two sentences above the heading “Debt bondage”, at paragraph 98, page 333 ‑ ‑ ‑
GLEESON CJ: Just before you leave page 329, the word “knowingly” refers to knowing what? Knowing what you are doing to the person or knowing that a certain legal quality attaches to what you are doing?
MR YOUNG: It is not legal quality, your Honour; it is the nature of the action, that is to say, an action which of its very nature indicates that it is an exercise of a power referrable to a right of ownership, as his Honour goes on to say, so as to distinguish that kind of action from other actions. That is an element of this offence. His Honour used there the word “knowingly” as the trial judge did, but strictly applying section 5.22 of the Code it really is a belief or awareness as to the nature of the power. But if we were at common law, it would be knowledge or belief of the nature or likely nature of the power.
The other passages I was going to refer to if I can mention them, because they should all be read together to really understand the point that Justice Eames is making; paragraph 98 at 333, paragraphs 111 and 113 at 337 to 338, paragraph 113 goes to the top of 339. The same point is made at 124, page 342 and that ultimately culminates in the suggested directions, but just before that at paragraph 140.
GLEESON CJ: It is the paragraph on 342, paragraph 124 commencing with the words “With respect”, Justice Eames summarises his view, does he not, of what the law requires?
MR YOUNG: Yes, your Honour in terms of the fault element of the offence, yes. But your Honour sees he is commenting upon the trial judge’s direction, well, exchanged with counsel, actually, that then carried through into their direction that the accused has to know that the person is a slave. But that analysis carries through then into the passage I read from the suggested directions.
So, in short, your Honour, we say, properly analysed, Chapter 2 required a direction as to the circumstances required to prove the offence, namely, a belief or awareness as to the nature of the actions that imposed slavery to the extent that other people did, and a belief or awareness about the nature of the accused’ own actions and both matters needed to be addressed.
GLEESON CJ: Would it suffice if the basis of the respondent’s belief as to how she could deal with these people as she did was simple, “They had been bought and paid for, that is why I can deal with them this way”?
MR YOUNG: Well, your Honour, then the jury would be instructed that that is the evidence. You need to find an awareness or belief that the accused by her actions is treating these women as property and that requirement could be satisfied by that evidence. I am not gainsaying the proposition, your Honour, that there was evidence to be put to the jury. It is a question of addressing the fault elements in a way that was understandable to the jury.
GLEESON CJ: But that would be a practical way to put it to the jury, would it not? If somebody had tapped this woman on the shoulder and said, “How can you treat these people like that?” she would not have said, “In virtue of my right of ownership,” or “In virtue of my right as an employer”. She would have said, “I can treat them like that because they have been paid for”.
MR YOUNG: Yes. That is essentially what Justice Eames was addressing by saying, treating them as a piece of property. But that simple approach, your Honour, would become more complicated in the case of the fourth woman who came voluntarily to work at this brothel and was not purchased. Your Honour, this does not, in our submission, raise any direction concerning the state of mind about the law. Can I give the Court two common law analogies.
One is the prohibited importation. He Kaw Teh and Kural and subsequent cases like Pereira and Saad are all cases in which the offence is possessing a prohibited import, and you look up the schedule of prohibited imports and you find narcotics. The cases all hold – and these are common law cases – that the nature of the substance and the knowledge or belief or awareness of the accused as to the nature of the substance is an element of the offence that requires proof of mens rea. Merely possessing a bag and not knowing what is in it would not satisfy the elements of the offence. The prosecution has to prove either awareness of the fact or the likelihood or chance that there is a narcotic in the bag.
Now, that is clear from those cases. Hill v Donohoe, an old High Court case, endorsed in He Kaw Teh, was a case where the customs section was expressed in terms of possessing goods which have been imported in contravention of the Customs Act. The High Court held that knowledge or belief that the goods had been imported in contravention of the Act was an element of the offence that had to be proved. Now, that sounds as if it is an element that has a legal content, contravention of the Act. The issue was addressed subsequently by statutory amendment that cast the burden on the defendant to prove a mistake about the goods and their importation or the like.
But another analogy might be receiving stolen goods. Section 132.1 of the Code deals with receiving stolen goods. The element of the offence is not simply that you intentionally did an act of receiving a plasma TV, you have to prove as an element of the offence a belief or knowledge of awareness on the part of the accused as to the fact that the goods had been or may have been or were likely to have been stolen goods. That is an element of the offence.
It is no answer to say, well, that element is really expressed as a wrapped up conclusion of fact and law. Here, yes, the nature of the conduct in question is expressed by a difficult, or identified by a difficult phrase, attaching to the rights of ownership, but that nonetheless is an element of the offence that identifies the nature of the quality of the actions that must be proved before they fall within the section.
Can I go to the alternative analysis, which is to put the Code effectively to one side, and that is simply to follow the process or reasoning in He Kaw Teh and like Commonwealth cases. If the sole physical element is conduct, that the section identifies circumstances in which the conduct must take place, then mens rea must be proved in relation to the whole of the conduct. By analogy, He Kaw Teh had to be proved that there was a knowledge or awareness that the change or likelihood that they were narcotics in I think it was in samovar. Here, there would have to be proved similarly an intentional element, knowledge or belief in relation to the status of the person or condition of the person as a slave and the nature of the accused’s own conduct. So one gets to the same point.
Now can I deal with Saengsai‑Or, the New South Wales case on the Customs Act. That is the one, your Honour, the Chief Justice referred me to. I will deal with it very briefly. Your Honour pointed out to me that the Crown made a submission like the one I have put here, which was rejected by the Court. That appears at paragraph 54 at page 143 of the report. The reason why the Court of Appeal did not embrace that analysis was a concern about the consequence. In the absence of express indication in the provision itself, such as we have here with the word “intentionally”, the Code directs you to a default element for attendant circumstances and the default element would be recklessness. It was the Court’s concern about that that lead, in our submission, to what is a strained or dubious analysis.
The passages I would go to are paragraph 64, page 146. Paragraph 64, as the following discussion explains, is concerned with this proposition. Before the Code the High Court had said the section attracted mens rea in respect of all of its elements, He Kaw Teh and the like. After the enactment of Chapter 2 of the Criminal Code the strict application of the Code would produce a different result. You would be applying recklessness concerning the nature of the substance rather than intention. What the Court said was that they could not see in the explanatory memorandum any intention to change the fault element, albeit that is the consequence of applying Chapter 2. Next, could I ask the Court to go paragraphs 68 and 69 at page 147.
GLEESON CJ: Is the physical element possession?
MR YOUNG: The physical element was possession.
GLEESON CJ: Possession of narcotics.
MR YOUNG: On the Crown’s analysis also the circumstance that the drug was a prohibited import, namely, a narcotic. So, two physical circumstances on the Crown’s analysis. At common law it would be mens rea for the whole of the offence, being possessing the substance and knowing or believing that the substance was likely to be a narcotic.
GLEESON CJ: That was only another way of saying that, applied to this particular problem, the concept of possession at common law included an appreciation of the nature of what you are possessing.
MR YOUNG: Yes, your Honour, but the court’s concern was that the strict application of the Code would attract recklessness rather than intentional mens rea to the nature of the substance.
GLEESON CJ: In every case?
MR YOUNG: Yes, in every case.
GLEESON CJ: That would be a very odd result, would it not?
MR YOUNG: It would be an odd result, but it is addressed by changing the legislation so that if you want a fault element different than the default element ‑ ‑ ‑
GLEESON CJ: Most people who are charged with possessing a narcotic substance know perfectly well what it is that they are possessing.
MR YOUNG: Yes, your Honour.
GLEESON CJ: And to tell a jury that what they have to find in those circumstances is recklessness would invite derision.
MR YOUNG: That is the reason why this Court chose effectively not to apply Chapter 2 but to maintain the sort of approach which had theretofore applied at common law. In paragraphs 68 to 70 the court says, “We perceive a real difference between a mental element of intention as it would have been at common law and a Code element of recklessness” and then the conclusion is that such a significant change in the mental elements required could not have been intended, that is paragraph 71. And going to the top of the next page:
If the legislature had intended to make proof of the offence less burdensome for the Crown it might be expected to have done so in clear terms.
The reason why, translated to our section, the authority is a doubtful one is this. This Court has said that in applying the Criminal Code and its framework of analysis of physical elements and fault elements, one does not go back to the common law as if you are dealing with a palimpsest. You are not trying to discern what is written underneath and to construe the Code so as to achieve the same result that would have been achieved by mens rea concepts at common law, you simply apply the Code. That is Barlow’s Case 188 CLR 1, at 18 to 19 and 31 to 32. But that is exactly what the Court of Appeal did. They perceived a difficulty in applying the Code in the manner its language required because that would bring about a result they thought must have been unintended and therefore they rejected the split analysis of two physical elements, two different fault elements, and effectively applied a common-law approach.
Whether it was an appropriate result on the facts of the case we do not need to tarry over. Your Honours may, but I do not. The point we make is that you simply cannot translate that analysis to our sections and say, do not apply Chapter 2. Do not address the question whether there are separate circumstances prescribed by the subsection. Just proceed as if we were dealing with a common law provision and applying mens rea to the whole of the offence, which is effectively what the Crown now says.
In our submission, Justice Eames was correct. Whether one applies the Code or applies common law principles, when one looks at the section there are three requirements; an act that amounts to possession, that is, an exercise of physical custody or control, or some other act in relation to the persons, an exercise of another power. That is the first question. What was the act and was that action intentional? But the two further questions are, were those actions directed at a person who was in the condition of a slave – and you have to read then in the words of a difficult definition. The third question is, were the actions in fact carried out by the accused herself focusing on her actions and not others that may have imposed slavery? Were those actions of the nature and quality required by the section?
Each of those parts of the offence attracts a mental element, intention for the conduct under 5.2(1) and a belief or awareness as to the nature or quality of the actions under 5.2(2). If not central to the error that his Honour found that the nature and quality of the actions was inadequately described, it was simply not addressed at all by the trial judge. The accused’s state of mind about her own actions was not the subject of a direction.
It is wrong, in our submission, to say that Justice Eames required directions on the full terms of 5.2. His analysis did not proceed in the language that I have used in these submissions. It did not have to. The important thing is that a direction was required to the jury about the state of belief held by the accused and no such direction was given. The problem that Justice Eames identified really has nothing to do with issues of law, it has to do with what the section says about the nature and quality of the actions. The requisite direction could have been achieved by a direction in terms that the accused knew or believed that the power she was exercising treated the woman as a piece of property or, alternatively, that they denied the woman autonomy and free will, or some other formula.
There are some other matters I need to go back to, albeit briefly. This to some extent is backtracking. Again we explain the limited circumstances in which a constitutional issue might arise. Our submission is it does not arise and it is only the submissions advanced by HREOC and perhaps the Commonwealth Attorney‑General that might raise an issue. It does not arise in our submissions because properly construed the Act mirrors the treaty definition.
There are two arguments advanced by the Commonwealth Attorney‑General and HREOC that might take section 270 outside the four corners of the conventions, and there I refer to all relevant conventions, 1926 onwards, or beyond any other basis attracting the external affairs power.
HAYNE J: But other than by answering arguments made by interveners, do you agitate any constitutional issue in this case?
MR YOUNG: The answer is, no, but can I add this qualification, your Honour, because the Commonwealth Attorney‑General has presented arguments about the meaning of the definition of “slavery” that really ought to be part of the appellant’s case in the sense that the meaning of those words has to be addressed to apply the section and to identify the elements. So insofar as these arguments have been left to the Commonwealth Attorney‑General we really treat him as the surrogate of the appellant in putting arguments as to the meaning of slavery.
GLEESON CJ: Just a minute, on page 308 under the heading “Constitutional validity”, Justice Eames refers to the fact that section 78B notices were given and there was no intervention for HREOC or the Commonwealth Attorney‑General before the Court of Appeal, the Victorian Court of Appeal, was there?
MR YOUNG: No.
GLEESON CJ: Yet, the Victorian Court of Appeal dealt with this issue of constitutional validity. Who raised the issue?
MR YOUNG: The Court did, your Honour. It is about point 6 on the page in paragraph 21. We would see it, your Honour, as an issue at the edge of this case, but there are two arguments that potentially raise it. The first concerns the closing words of section 270.1, those words of inclusion at the end of the definition.
GLEESON CJ: You do not contend that the Court of Appeal having raised this issue decided it wrongly?
MR YOUNG: No.
GLEESON CJ: Ms Abraham does not contend that the Court of Appeal having raised this issue decided it wrongly?
MR YOUNG: But the point is this, your Honour, that the arguments now advanced by the Commonwealth Attorney‑General as to the meaning of those closing words, and HREOC, contradict Justice Eames’ findings about those words.
GUMMOW J: But do you want to say that if Justice Eames’ construction in the Court of Appeal is adopted that yields a valid constitutional operation?
MR YOUNG: Yes, your Honour.
GUMMOW J: But if some other operation is contended for, that would yield an invalid operation, and one of which benefits you? That invalidity benefits you in some way to attack these ‑ ‑ ‑
MR YOUNG: Well, invalidity would – if the only way in which these offences, your Honour, fall within ‑ ‑ ‑
GUMMOW J: Bearing in mind, reading down ‑ ‑ ‑
MR YOUNG: Yes, your Honour. Ultimately it may be resolved by reading down, but if the only way in which these offences breach my client is by an extended reading of the definition, based either on the closing words or HREOC’s evolutionary argument, then there does arise a question of constitutional validity because there will be a disjunction between the 1926 treaties ‑ ‑ ‑
GUMMOW J: No. I am just worrying about the outcome in the case. You have to find a matter.
MR YOUNG: Well, it does matter to us, your Honour – if the Court adopts an expanded meaning of “slavery” based on the closing words ‑ ‑ ‑
GUMMOW J: It has to go to these convictions. That is what generates your interest – to generate a constitutional matter.
MR YOUNG: It is, but ultimately the point is this, your Honour, that if Justice Eames’s construction and his findings about the direction of the jury are upheld, we say that will – in those circumstances there will not be any constitutional issue because his Honour proceeded on the same meaning of “slavery” as that which we advance. However, if a different meaning of “slavery” ‑ ‑ ‑
GUMMOW J: There would be no constitutional issue because there is going to be a new trial. That is the answer.
MR YOUNG: Yes, your Honour. Conversely, if it is concluded that the definition of “slavery” is much wider than we contended for, and if that wide meaning is founded not on a treaty but on the closing words of Parliament’s definition, or on some notion of international concern or impact on international relations, that may vitally affect my client’s interests because that may mean that we lose the retrial unless we challenge the constitutionality of that interpretation.
GLEESON CJ: Well, the closing words of Parliament’s definition include “such a condition”. It is very difficult to see how in those circumstances the closing words add to what went before.
MR YOUNG: We agree, your Honour. That is what Justice Eames said; that is what the Commonwealth Attorney’s written submissions say, that is to say the closing words cannot expand the definition that preceded it and the definition remains one governed by the requirement that there be powers attaching to a right of ownership. We embrace that argument; we say they had nothing. But HREOC, and perhaps orally the Commonwealth Attorney‑General to some extent, seem to suggest that those words liberate the definition so that it can expand to include such things as debt bondage, even where debt bondage arises in circumstances not involving an assertion of rights of ownership.
HAYNE J: Do you press any of the grounds of the proposed cross‑appeal as they are stated at page 385?
MR YOUNG: Yes, your Honour. We need to press for leave or to press an argument concerning constitutionality because that is necessary to respond to the arguments that have been advanced largely on behalf of HREOC and to some extent possibly by the Commonwealth Attorney.
HAYNE J: The point is not captious, Mr Young, but the grounds are all directed about what the Court of Appeal did. They are not directed at what HREOC or the Attorney has done. What I need to know is whether you press those grounds as framed, or any of them.
MR YOUNG: Your Honour makes a good point, I accept. Those grounds are not properly expressed because it is really – our position really is not to attack by way of cross‑appeal Justice Eames’ finding because that proceeds on a definition of “slavery” that we accept.
It is rather to allow us to meet the wider arguments that are now advanced by the Commonwealth Attorney and HREOC. So, we essentially, your Honour – we do not need to raise this matter by way of cross‑appeal, we simply need the ability to meet those arguments that have been put in this Court, and as we say, we doubt that their – certainly on our arguments they do not arise.
HEYDON J: Justice Hayne asked you about all the grounds.
MR YOUNG: Yes, I was going to come to them. We do seek leave to raise ground 3. We appreciate the difficulty that on the authorities that requires the Court to examine the whole of the record.
HEYDON J: You yourself said earlier this afternoon that there was evidence to go to the jury.
MR YOUNG: Yes.
HEYDON J: Is not that inconsistent with ground 3?
MR YOUNG: No, your Honour, because what we wanted to point out was that there are features of the evidence which are inconsistent with the finding of guilt. When I made that observation, I was referring to a particular exchange about the purchase evidence.
GLEESON CJ: Well, if you are an applicant for special leave to appeal and this were the only point in the case, you would come along to a special leave hearing and you would not come along with 2000 pages of transcript. You would come along with an application book which would be much more confined.
MR YOUNG: Yes, your Honour.
GLEESON CJ: That is the position you are in now.
MR YOUNG: Yes, your Honour, and in support of that application for special leave we rely upon what we put in our written submissions and the additional document we circulated at the adjournment. I do not think I can really expand usefully on what we have put in writing. We have tried to identify the points that we would identify as supporting that contention of ‑ ‑ ‑
GUMMOW J: It would really be a cross‑appeal, would it? You would be seeking to uphold the order, would you, for a new trial?
MR YOUNG: No, your Honour, there was an ‑ ‑ ‑
GUMMOW J: Or would you be saying there could not be one because of the ‑ ‑ ‑
GLEESON CJ: You want an acquittal?
MR YOUNG: There was an application before ‑ ‑ ‑
GUMMOW J: You want an acquittal because of the invalidity as it could not found these charges. The section properly construed could not reach to found these charges because the relevant extension of the section would be invalid.
MR YOUNG: Your Honour is asking me about the constitutional position. As to the constitutional position, your Honour, it is really ‑ ‑ ‑
GUMMOW J: I am still puzzled by this document at 385. That is all.
MR YOUNG: The constitutional position, your Honour, is as I endeavoured to explain, but it is not by way of cross‑appeal, it is by way of simply a submission in answer to the submissions that have been made concerning the ambit of the definition.
GUMMOW J: So I can forget about 385.
MR YOUNG: Well, subject to this, your Honour. Turning to paragraph 4, we would need to seek leave to raise that argument. That is a respect in which the Court of Appeal found against us because we made an application asking that an acquittal be directed on those grounds. We failed. All we can do in support of that application is point to the evidentiary matters that we have in our written submissions.
GLEESON CJ: I thought Justice Hayne has persuaded you to tap the mat in relation to proposed grounds 1 and 2 and you were telling us that in relation to ground 3 you have said what you need to say in writing.
MR YOUNG: Yes, your Honour.
HAYNE J: I think it is called verballing in other contexts, Mr Young.
MR YOUNG: Can I just strain the Court’s patience for one moment and just go back to the words of inclusion. I said there were two arguments that potentially raised a constitutional issue and I mentioned the words of inclusion. The other argument is HREOC’s argument that the definition itself is ambulatory and you can read it as of today as embracing additional practices that are analogous to slavery or related to slavery. That argument goes beyond any treaty obligation and it does not match any relevant customary international law obligation. They are effectively dimensioned by the treaty obligations Australia has assumed. So that argument, in its appeal to a contemporary reading by reference to diverse materials, also threatens to go beyond a proper 51(xxix) foundation. Unless there is something further I can assist the Court with, those are the respondent’s submissions.
GLEESON CJ: Thank you, Mr Young. Yes, Mr Solicitor.
MR BENNETT: Your Honours, in view of that last exchange, I can be extremely brief. There were just two short points I wanted to make, very shortly. One is in relation to Siliadin. My friend submitted it was not obiter. Your Honours, paragraph 3 of the judgment in Siliadin makes it clear that the only case brought by the applicant ‑ ‑ ‑
GUMMOW J: We are not going to decide this case…..on whether it obiter or not obiter.
MR BENNETT: Well, your Honours may not, but it is put against me and I need to ‑ ‑ ‑
GUMMOW J: Well, you barged in, if I may say so.
MR BENNETT: Well, your Honour, maybe. In any event, it was limited to servitude and paragraph 3 makes that clear. The other point which I can make equally briefly is that in relation to my friend’s submissions about Kunarac and the Trial Chamber it is important to note that the Trial Chamber did refer to the customary international law content of the offence at the time relevant to the indictment. That appears in paragraph 515. So that supports what we submitted about customary international law.
GLEESON CJ: Thank you, Mr Solicitor.
MR BENNETT: If the Court pleases.
GLEESON CJ: Yes, Ms Abraham.
MS ABRAHAM: Your Honours, a number of points in relation to the elements of the offence – and my friend a short while ago indicated that he considered there were three - I assumed they were physical elements of the offence. To make just a couple of preliminary points, my friend prefaced his submission on a couple of occasions with the proposition that in this case the condition of slavery involved more than the respondent, therefore, this other element was necessary. With all due respect, whether something is a physical or fault element is not dependent upon whether there is one or more co‑accused; it is dependent on the construction of the statute.
Second, my friend suggested that the Crown submission was somehow inconsistent because we had agreed or accepted about a degree of knowledge. It was suggested against us that we are saying that is some separate matter. The Crown has accepted the question of knowledge as part of the proof of intention to possess and we have accepted it in that context and that is how it was run at trial. That is how the trial judge directed ultimately in relation to the matter, albeit he used the definition that was in the Act. He was using it for the purpose of the intention to possess.
The third aspect on the elements, your Honours, is this. My friend accepted as a proposition that one does not need to appreciate that it is slavery, in other words, the respondent did not need to turn their mind to the concept. In my submission the arguments that were then put are indeed in conflict with that. Quite to the contrary the very elements that are identified and the way it was put required proof, in effect, of a legal basis that she believed – the reason she was conducting her conduct as she did.
Turning to what is suggested to be the elements of the offence, my friend has suggested the elements are first, what power was in fact being exercised; second, that the person must have exercised it over a slave, and that is said to be a circumstance and the third element, which I understood to be that the power must have been of a certain type, that is the accused must have appreciated it was of a certain type or believed and they were said to be, I assume, physical elements. With respect, I am not quite sure how the third could be a physical element because the whole concept that is being put is in fact the accused’s belief. That could not possibly be a physical element, and in the Crown’s submission that simply does not exist.
HEYDON J: I think what Mr Young said was, the third element is the powers the accused exercises must have a particular quality or nature, namely, powers attaching to a right of ownership, and so he treats it I think as a physical element like the other two and then he goes to the start of the legislation to add in a mental element.
MS ABRAHAM: But, with respect, one has that in the possessing, or the using or whatever other power is identified. One does not count the conduct more than once. It cannot be the act itself and a circumstance.
KIRBY J: But “possession” is the verb, “slave” is a noun which is the object of the verb, so that it is just a little awkward as a matter of grammar to put the noun into the verb. Nouns into verbs do not normally go.
MS ABRAHAM: Certainly, but one cannot try and extract from that concept a number of elements that, with respect, simply do not exist. The reason the last element was proffered, it was said, was because one needed to know in effect what the accused’s belief was, or the respondent’s belief was, and that is not a basis to create an element. That there is more than one accused is not a basis to create an element.
In my submission, that just simply is incorrect. The element is conduct, the fault element, intention. It was raised during argument whether indeed there is much difference between a physical element of conduct and a physical element of circumstance being a slave. Given that intention would be the relevant fault element, there may well be, as I indicated yesterday, not a great deal of practical difference. But that is not what my friend is suggesting. My friend is suggesting an addition element which, I might add, is not the analysis that is in Justice Eames’ judgment.
It seems from that my friend then jumps and says that you have to then prove, or what is relevant is the respondent’s belief and whilst my friend has not used the word “entitlement”, that is the words of the direction, the fourth element, both in the paragraph 77 in the later paragraph. It is not some objective belief or is this conduct which would amount to a right of ownership. The direction that was said to have been given ought to have been given actually relates to whether she believed she was entitled to do it and that was what was pressed upon the trial judge and that is why there was the direction in the last couple of pages of the summing‑up, and that is what the Crown takes issue with.
GLEESON CJ: Do you accept that the jury had to decide whether the respondent was exercising over the complainants powers of such a nature that they could reasonably be explained only as an exercise of a right of ownership but for the fact that ownership was legally impossible?
MS ABRAHAM: That is one way of putting it, yes.
GLEESON CJ: And to answer that question, it might be necessary, in the light of the circumstances and the conduct of a particular case, for a jury to consider other possible explanations of the conduct of the respondents and the complainants, such as personal choice, legislative background or external circumstances. The external circumstances would cover, for example, the case of the worker on the oil rig referred to in one of the judgments.
MS ABRAHAM: Certainly, but, in my submission, what it does not include is a concept, well, why are you doing it, which is, with respect, the fourth element. So the fourth element includes more than what your Honour has put and so I do not agree with what is in the fourth element because it is that question of belief in the context that my friend has put it. My friend seems to have relied on 5.2(2) of the Code to formulate that belief. In my submission, 5.2 does not support any such interpretation. It says nothing about a belief in the way that my friend was meaning it, in other words, the reason she is doing it, whether she believes she is entitled to do it because she has a contract.
Now, I might add that the submissions that have been put suggest that the judgment of the court was correct. However, the submission does not address the fact that, for example, in footnote 53, where there is the only reference to the term “circumstance”, the court finds there is a circumstance and result. That is 327 of the appeal book 2. The submission does not address, in my submission, the repeated ‑ ‑ ‑
GUMMOW J: This is the misnumbered footnote.
MS ABRAHAM: Yes. I am sorry, it is.
GUMMOW J: It is 42.
MS ABRAHAM: Your Honour, the submission does not address the repeated reference by the learned trial judge of the phrase “full terms” of section 5.2. My friend made the submission the Court did not require that. Well, with respect to my friend, paragraph 68 at page 323 says the exact opposite:
His Honour did not provide the jury with the two other paragraphs in s 5.2. The omission of those paragraphs, in my opinion, undoubtedly contributed to the inappropriate narrowness ‑
I will not continue. Paragraph 77, prior to the elements being identified, it says it is on the basis, amongst other things, “having regard to the full terms of s 5.2”. That is how this Court determined what the elements were. What does 5.2 say and we will frame it around that. So, in my submission, that approach is in error and clearly inconsistent with my friend’s submission and indeed aspects were not addressed.
Indeed, my friend has not indicated, with respect, where in the elements that have been identified by the Court the elements that he suggests the Court has identified as physical and fault elements that match. In my submission, the reason that has not happened is because it cannot be done, because it was not done at the time because of the manner in which it was approached.
Your Honour, the final matter in relation to the Code, my friend had an alternative argument of putting the Code aside. Well, you just cannot do that. The Code says that you are required to apply Chapter 2 to determine the elements of the offence. Your Honours, there is the cross‑appeal still in relation to the factual matter.
GLEESON CJ: Application for special leave to cross‑appeal.
MS ABRAHAM: Yes, application, which I indicated yesterday we were opposing because it is no more than a reconsideration by this Court of the facts, but we were provided with a document that I assume your Honour was provided with at lunch time today which does require some response because they relate to a number of facts that had not addressed.
GLEESON CJ: Well, do you want some time to give a written response to that?
MS ABRAHAM: I am happy to do it now. I can do that now.
GLEESON CJ: Go ahead.
MS ABRAHAM: I will give the page references in the transcript. I will not go into the details.
GLEESON CJ: By the way, on this subject of the facts, in the reasons of Justice Chernov in the Court of Appeal in that case of R v DS (2005) 153 A Crim R 194, there is an introductory statement in which Justice Chernov sets out the nature of what I might call the transactions and the manner of dealing with the women in a related case. Is that materially different, as he stated it, from the case the prosecution set out to make in these proceedings?
MS ABRAHAM: It is. I would not say materially. It ended up slightly differently and that is apparent from the sentencing judge’s remarks in this case where there was arguments put as to what, if any, weight could be put on the sentence. The page reference in the sentencing remarks that addresses that begins at about 244 in appeal book 2 at paragraph 64.
GLEESON CJ: Thank you.
MS ABRAHAM: The next couple of pages that follow deal with what, if any, differences there are.
GLEESON CJ: Thank you.
GUMMOW J: At paragraph 65?
MS ABRAHAM: Yes.
GUMMOW J: Where it says, “it is not possible to disregard the Court of Appeal decision”?
MS ABRAHAM: The difference between the two appeared to be that the learned sentencing judge in this case did not find that they were locked in, as in physically locked in, although he found they were as a matter of circumstance. In relation to DS that was the finding, that was the material. So that is the factual difference, if memory serves, between the two.
GLEESON CJ: Unless my imagination is playing tricks or my memory is playing tricks with me, Justice Chernov said, for example, in his recitation of the facts that these people before they came to Australia were destitute.
MS ABRAHAM: Yes, and the evidence on the economic situation is summarised again in the sentencing remarks at page 235. In relation to this trial, it goes to the situation of being destitute, but clearly they had no money. They came to Australia to earn the money. One had $50, one had $60, and one had I think nothing and they were given $500 to bring with them and it was taken away when they got here. So they had money when they travelled through the airport. But the learned trial judge did make findings about the economic vulnerability of the particular complainants.
Your Honours, in relation to the document that has been provided to date, the appellant does take issue with a number of the assertions there, we say, not supported by the evidence and or taken out of context. Significantly, there is, apart from I believe the last two paragraphs, no reference to the evidence of the co‑offender DS, therefore there is no reference obviously to some of the context which evidence came from her and, indeed, the complainants which included the purchase, which included the passports being taken, which included being told that they could not go out and the like.
KIRBY J: Is that covered by what the sentencing judge said he did not accept in the evidence of the complainants or not?
MS ABRAHAM: No, the only thing that the sentencing judge did not accept was that they were held under lock and key. What he did find on that aspect was that they were restrained by circumstance. Whilst not physically under lock and key they were restrained nonetheless. That is the only thing, with respect, and that related to apartment ‑ ‑ ‑
KIRBY J: I think in paragraph 11 of this document the respondent makes some headway by reference to the fact that it just could not have been lock and key, as the complainant said.
MS ABRAHAM: Your Honours, in relation to that apartment, what one had was, there was no evidence that the complainants at that apartment had keys. The evidence from the complainants was to that effect but it was from DS to that effect as well.
KIRBY J: There is some statement here that some of the workers were given keys, I think after they had paid off the debt.
MS ABRAHAM: Just so there is no confusion, at the apartment there were a number of women, two of which are the complainants in this case. They did not have keys. They were dropped off, picked up. The key was normally used by whoever it was, DS, the respondent, to open the door. When you pulled the door closed the issue then was, could you get out? That is what the evidence of the locksmith was about. You could, but then it would lock of course and one could not get back in and they did not have keys in those circumstances.
KIRBY J: There is a reference in 10 to “boyfriends”. I thought you told us there was only one boyfriend.
MS ABRAHAM: I was about to get to that. That is one of the factual matters. Just finishing off the matter about the keys, so I am not incomplete. There was one occasion, I understand, where the woman known as “Mummy” dropped those women off at the apartment and then received a phone call before saying that they can let themselves in, the keys are in the letterbox which in fact indicates they did not have keys and they had been left for them on that occasion.
Your Honours, it might be easiest if I go through the paragraphs, if that is of assistance, and add some page references. Paragraphs 2 and 3 really deal with the circumstances in which the complainants came to Australia. It is clear, in the Crown’s submission, that there was evidence that the complainants did not necessarily know the conditions. I raised yesterday two of the complainants did not know the amount that they were required to, in effect, work off. One of them thought it was 20,000 to 30,000 and got here to find out it is 45,000. One thought it was 35,000 and got here and was told it was 45,000. It was negotiated, if I can use that word. Ultimately it was 40,000. Those are the details in footnote 3, appeal book 2 at 274.
Some of the other complainants, and it is mentioned in that footnote, were told they would be free to move around when they pleased, and clearly that was not the case. But importantly, underlying any of these discussions, the clear falsity about the base of them coming over and it deals with paragraph 6, for example, in the submissions, is that they were told they could work legally in Australia and they clearly could not. On any scenario, they could not. At best, they could work on visas obtained on false bases until they were caught by the authorities and, in my submission, that is significantly different, clearly, to what they had been told.
Some details about that are at appeal book 2 at 277 to 278. There is a reference in paragraph 4 to some of the women being on similar contracts. One of the women, the woman, Ms S, while she had worked on a contract she had retained her passport, had keys to her apartment, and was not subject to any of the restrictions that we are talking about in this case, and it was in another country. In relation to the other two people, one did not work, as I understand it from the evidence, and one worked for one week it was for one week, it was in Singapore, and there was no evidence of her conditions. The page references for that in the transcript, 545, 1108 and 114.
Your Honours, there is a suggestion about bank accounts in paragraph 8. The evidence that is relied on here in the document is from the woman, Mummy. Your Honours, the evidence that was given by Mummy was that – and it was not specific to these complainants because there were a number of people in her house – the evidence was that the purpose of getting these key cards was to get identification points and once they were obtained, the key cards were kept in a locker in the brothel. So the complainants did not have access to the key cards.
GLEESON CJ: What page is that?
MS ABRAHAM: Your Honours, the evidence from Mummy is referred to in the document ‑ ‑ ‑
GLEESON CJ: I see. So the reference to the transcript is accurate, you just do not accept ‑ ‑ ‑
MS ABRAHAM: Yes, it is not in its full context. One other reference to the complainant, R, at page 1210, and it is summarised in the summary of the evidence at appeal book 278, paragraphs 20 and 21. She is the only one of the complainants that was asked about going to the bank and she said they did go to the bank, a card was obtained, but she never saw it. That card was found in the handbag of the respondent.
I am sorry, there is one other, at page 1359, a page referred to in the document by my friend in paragraph 8. My friend suggests “up to three times a week” they went to the bank obviously with somebody, because they did not have their key cards, and the evidence, with respect, is a little unclear, in our submission. It is more that the interpretation of the evidence is it is once every one, two or three weeks, not “three times a week”.
In relation to paragraph 10, the reference to “boyfriends”, we maintain the position that I said yesterday. Again, the only evidence referred to in this document is the evidence of Mummy – that is, Ms O – and much of her evidence was in very general terms and there were not only these complainants that were at this house at all. There were other people. In relation to these complainants, the evidence was two had no boyfriends, one had a boyfriend in the context that I mentioned yesterday.
As to the question of the movements that are described in 10 and 11, I refer your Honours to the summary of evidence, appeal book 2 at 283 and it goes for a few pages, because it clearly indicates from the complainants’ point of view and, indeed, there is the evidence of the co‑offender, DS, about what restrictions they did or did not have and it is, in my submission, accurately summarised in the sentencing remarks of the learned trial judge at 237 to 238.
GUMMOW J: Do we have the birth dates of these women?
HAYNE J: Each of them gave that age in evidence‑in‑chief and most of them, I think, or at least some of them, were 32, 33 at the time of trial.
MS ABRAHAM: Yes, I think they did give their ages and we will just find them. I do not have them at my fingertips, I apologise. The question in those paragraphs about going to ‑ ‑ ‑
GUMMOW J: One of them was 28 but she seems to have started out when she was 11.
MS ABRAHAM: I think the ages also might be ‑ ‑ ‑
GUMMOW J: Anyhow, do not stop now to do it.
MS ABRAHAM: I thought the ages might be in the sentencing remarks, but we will have a look at that.
HAYNE J: Not really relevant to questions of whether things were done voluntarily, but there we are, there is no issue about that, apparently.
GUMMOW J: I notice also at page 610 and at page 761 there is reference to the boss in Thailand. At page 610, line 22, there is a reference to having to refer back to the boss in Thailand, payments being made to the boss in Thailand. Then at page 761, if things went wrong and a girl wanted to get out of it, it would be necessary to go back to Thailand, “We would ring the boss in Thailand”. Was that ever explained?
MS ABRAHAM: I do not think there was any detail. I think it was not necessarily the same boss that was involved. Obviously that was the person, whichever one it was at any given point of time, that got the $20,000, which is why, in paragraph 13, for example, where there is talk about going back to Thailand, my friends have put a quote there about they would have to ring up the boss – the point your Honour has made – and reach some agreement.
There is another passage at page 739 that relates that they needed to clear the money because, of course, there is a lot of money that has been exchanged in this process. Bear in mind these were hypothetical answers because, as DS said, nobody had gone back.
GUMMOW J: But page 610 is not talking about a hypothetical situation.
MS ABRAHAM: With respect, the evidence of the ‑ ‑ ‑
GUMMOW J: Anyhow, do not hold things up now.
MS ABRAHAM: There was evidence from a number of the complainants about, amongst other things, they could not actually even go anywhere because they did not have their passports with them. Your Honours, just one final matter on paragraph 10 because there is reference to boyfriends, plural, which in the Crown’s submission is clearly not correct when one looks at these complainants. There is reference to going to discos and, your Honour, there are a couple of occasions when one of the complainants or other went out to a disco, it was always with someone that was involved in this case.
GUMMOW J: There is a reference that sometimes they were too young to be let in and the bouncer wanted the passport. That is in this material as well, page 1378, line 23.
MS ABRAHAM: The point I was trying to make is that what one is dealing with, even when they went out they were not going out by themselves, they were going out with Mummy or a friend of Mummy’s or DS. The years of birth of each of the complainants - and I will use their initials because their names are not actually in the judgment of the Court of Appeal – S was born in 1973, K in 1978, T in 1972, J in 1970 and R in 1976. But in terms of their vulnerability and the like, the learned trial judge in the sentencing remarks goes through that and in one instance says that one of them does look indeed very young.
Those are, with respect, the principal factual matters in relation to the matters put in this document but, of course, fundamentally, they are all matters, with respect, taken out of context. So, apart from, we would say, they are broad generalisations that are not supported by the evidence. They are taken out of the context of these women were being purchased. Their passports were taken and they were told they could not go out and your Honours know the other facts. Ultimately, a classic jury question, in my submission. Those are my submissions.
GLEESON CJ: Thank you, Ms Abraham. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.
AT 4.19 PM THE MATTER WAS ADJOURNED
- AGLC
- R v Tang [2008] HCATrans 181
- Case
- [2008] HCATrans 181
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether the act of downloading child abuse material, which was then stored on Mr. Tang's computer but not viewed by him, amounted to "accessing" a carriage service for the purpose of s 474.17(1) of the *Criminal Code*. This required the Court to determine the meaning of "access" in the context of digital information transmitted via a carriage service.
The High Court, by majority, held that "access" in s 474.17(1) encompassed the act of downloading material, even if the material was not subsequently viewed. The Court reasoned that the transmission of the material to Mr. Tang's computer, which made it available for his use, constituted access. This interpretation was based on the ordinary meaning of the word "access" and the purpose of the legislation, which aimed to prevent the dissemination and availability of child abuse material. The Court affirmed Mr. Tang's conviction.
Orders
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Background
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Evidence
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