R v Tang
[2008] HCATrans 180
[2008] HCATrans 180
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 TUESDAY, 13 MAY 2008, AT 10.18 AM
Copyright in the High Court of Australia
MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR R.R. DAVIS, for the appellant. (instructed by Director of Public Prosecutions (Cth))
MR M.J. CROUCHER May it please the Court, my learned friend, MR N.J. YOUNG, QC, appears with me and with my learned friend, MS K.L. WALKER, for the respondent. (instructed by Slades & Parsons)
MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth: May it please the Court, I appear with my learned friend, MR S.P. DONAGHUE, for the Attorney‑General for the Commonwealth intervening primarily for the purpose of resisting the cross‑appeal. (instructed by Australian Government Solicitor)
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS R. GRAYCAR, seeking leave to intervene on behalf of the Human Rights and Equal Opportunity Commission. (instructed by Human Rights and Equal Opportunity Commission)
GLEESON CJ: Yes, you have that leave.
MR WALKER: Please the Court.
GLEESON CJ: Yes, Ms Abraham.
MS ABRAHAM: As your Honours are aware, the respondent in this case was convicted of 10 counts of offences against section 270.3(1)(a) of the Criminal Code (Cth). There were five complainants in this matter and in relation to each complainant the respondent was charged with an offence of possessing a slave and a separate offence of using a slave. As a matter of history, can I just indicate why there are two counts. Originally there was one count on the indictment in relation to each complainant. There was an argument by the defence that that information was duplicitous, that argument was upheld and the two counts resulted.
Your Honours, in a nutshell in this case, the Court of Appeal in Victoria during the course of argument concluded that there were four elements that the Crown was required to prove to establish these offences, be they the possessing offence or the use offence. The court determined that in relation to the fourth element they identified the directions given by the learned trial judge were inadequate.
It is the appellant’s submission that the Court take the appropriate approach to determining the correct elements and, as a result, the elements are in fact wrong. Indeed, importantly, the appellant says the fourth element identified is not an element of the offence. Now, the practical consequence of that of course is that there was no other challenge to any other aspect of the summing‑up in terms of the elements. It was only in relation to that particular fourth element identified by the Court that the directions were seen to be inadequate.
Your Honours, before going to how one determines elements of Commonwealth offences and, indeed, what the error is, the appellant says, in this instance, I propose to speak just briefly on the facts to put this argument in context.
KIRBY J: You are going to speak briefly on the facts, but we do not really have all the facts, unfortunately. How can we possibly deal with the issue in the cross‑appeal, or is it a notice of contention that suggests that the verdicts were unsafe and unsatisfactory, in the old language?
MS ABRAHAM: Your Honours, we have a transcript for your Honours, if one goes down that path of leave being ‑ ‑ ‑
KIRBY J: Well, there is a dispute between you and Mr Young on the basic facts and it is hard to know how we could ever resolve that without the record.
MS ABRAHAM: With respect, in relation to that aspect the argument is very much – and I agree – a factual one; there is no error being pointed to by the defence on the cross‑appeal in relation to the unsafe as to the wrong application of the law.
GLEESON CJ: By cross‑appeal, do you mean application for special leave to cross‑appeal?
MS ABRAHAM: Yes. So there is no error identified on the principles of unsafe and unsatisfactory.
KIRBY J: What is the attitude of the appellant to the application for special leave to cross‑appeal?
MS ABRAHAM: We oppose, in a nutshell, on the basis, as there is no error identified, one is then talking about purely a factual matter where a court must conduct an independent examination and, with respect, it is not for this Court to do that. If no error is demonstrated in principle the ‑ ‑ ‑
KIRBY J: Yes, but we have to apply the Criminal Code to the facts of the case.
MS ABRAHAM: Absolutely.
KIRBY J: You and the respondent are not ad idem as to what those facts are, and in certain pretty fundamental respects.
MS ABRAHAM: I agree. There are a number of facts that are clearly not in contention. There are a number, however, that are. What is in contention is the inference that is said to be drawn from those facts. They are the differences – and I will go to some of the facts in a moment. The differences on the principal matters are highlighted in the document in appeal book 2. That commences at page 273. That was a document prepared by the parties for the Court of Appeal which identifies in various of the paragraphs, either by underlining or in bold print, where the issue of contention is between the parties.
KIRBY J: What is the significance of the underlining?
MS ABRAHAM: Unfortunately, it is not consistent throughout the document, but ordinarily it means that one party says that this is the appropriate position as opposed to the position that is not underlined and in each paragraph where there is a difference it is explained in the paragraph which party says which. So, for example, in paragraph 3, it is apparent that the respondent, obviously the Crown in this instance, as it was the Court of Appeal, considered the underlined parts the accurate summary of that aspect of the evidence.
The facts, with respect, are important. This is not a case, and the Crown never put it as a case where it was slavery as a result of physical force, for example, or a physical threat – a threat of force. Rather the Crown case was one of really all‑pervading control over the complainants, that is, control of their physical movements, psychological control, emotional control and economic control.
KIRBY J: But on the issue of physical movements, there is a dispute between you, as I understand it, as to whether the complainants were free to leave the premises in which they slept – if we put it that way. The complainants apparently gave evidence, or some of them, to the effect that the door was locked from the outside. A locksmith was called who said that that was not and had never been the situation of the door. There was evidence that the complainants had friends and boyfriends and went shopping and so on. So how are we to resolve this dispute? I am sorry; I just find it hard to know how I am to get the factual substratum correct in my mind in order to apply the law as we will ultimately unravel it.
MS ABRAHAM: Your Honours, of course, we will make submissions on the facts and of course we are happy for the Court to have the transcript in support of our propositions. The page reference is obviously identified in the document I have just taken your Honours to. But it is – I accept entirely that whether or not one goes down the path of this Court determining an unsafe and unsatisfactory ground or whether one is determining the elements of the offence and applying the Code to the facts of this case, in my submission the facts are fundamental to this and it is important ‑ ‑ ‑
KIRBY J: You are the appellant.
MS ABRAHAM: Yes, I agree.
KIRBY J: You have all the money of the Crown with its limitless resources.
MS ABRAHAM: It is also a rare occasion that we are the appellant in this Court. But, with respect, it is a situation where one does need to look at the facts in context because as I pointed out a moment ago one is not talking about being necessarily physically locked in or physically forced - it is control of a different type, and, yes, I accept that there is a reference to a boyfriend. For example, an easy way to put that in context, and that is probably quite a good example to suggest somebody has a boyfriend. One of the complainants - it was a client at the brothel. So she saw this person at the brothel or spoke to them on the telephone. I think there was one occasion when she snuck out and saw him. That is the relationship that is described as boyfriend/girlfriend.
GUMMOW J: Did they have access to telephones?
MS ABRAHAM: They had mobile telephones. In my submission, those sorts of factors like a boyfriend or a mobile telephone and the significance of them need to be judged in the context in which they found themselves in this country. They clearly voluntarily came here to work as prostitutes. There is no doubt about that. They were told when they left Thailand that they could work legally here.
KIRBY J: The brothel that they went to was in fact, as I understand it, a licensed brothel. Is that correct?
MS ABRAHAM: It was, that is correct.
KIRBY J: So to that extent what they were told was correct, except for their migration status?
MS ABRAHAM: Yes, they did not have valid visas. Whilst their visas were valid on the face, they were obtained by fraud and improper stories. So they agree to come to this country. There is a debt of somewhere between – some were 40,000, some were 45,000. There is no evidence as to how that figure was determined. It was an arbitrary figure. It bore no relationship whatsoever to any purported expenses or the like. Indeed, in relation to two of the complainants, they did not know that that was the amount when they came to Australia. One believed it was 20,000, no more than 30,000, another was told it was 35,000 and when they arrive in Australia they are told it is a higher figure.
CRENNAN J: There was some reference to 20,000 of the total debt going back to Thailand. Did the evidence explain in what sense that amount was a debt or what was happening there?
MS ABRAHAM: The Crown case was that that was in fact to purchase the women and that was the evidence of a co‑offender.
CRENNAN J: To whom was the 20,000 going back to Thailand owed?
MS ABRAHAM: To recruiters in Thailand. The people that gave evidence at the trial were not just the complainants. A co‑offender of the respondent gave evidence as to the contracts, how they came about and the like.
KIRBY J: It is an impression. The co‑offender was co‑charged and then pleaded guilty and presumably was under some obligation to give evidence for the Crown. Is that correct?
MS ABRAHAM: Yes, she agreed to give evidence for the Crown, yes.
KIEFEL J: Could you summarise for us what the evidence was in relation to the contracts because, as I understand it, $20,000 was paid to the recruiter but the women involved were paying off a debt of a larger kind and potentially to someone else but, as I understand it, the evidence is not clear about the business arrangement between the person who may have originally advanced the moneys to them, which constitutes the debt, and the accused and the other persons?
MS ABRAHAM: We are obviously not talking about written contracts in this instance.
KIEFEL J: No.
MS ABRAHAM: Your Honour, what would happen is they would turn up in this country. Some clearly knew that the figure was in the vicinity of 40,000 or $45,000 owed, others did not.
KIEFEL J: Owed to people in Thailand?
MS ABRAHAM: They owed to people. They had to work off a debt of that amount of money. They knew that would involve servicing hundreds of clients. They were put up in accommodation and they were paid to get here. Their visas were obtained by the co‑offender – who I refer to as DS – at the instigation of the respondent.
KIEFEL J: But there is no evidence about the arrangement between the accused and those who brought the women to Australia and those who had supposedly advanced the funds creating the debt in Thailand?
MS ABRAHAM: I think we are at cross‑purposes. There was no advance of funds. A woman arrived, and the woman was in effect purchased by the respondent and those were the words used by the co‑offender. The $20,000 was the purchase price for the women. So that went back to the Thai recruiters and those that contributed to that $20,000 – and in four of the instances it was the respondent who had a part share and in three of the four it was 50 per cent and in one of the four it was 70 per cent share. That is significant because, when one is then working off the debt, it was $110 per client; $43 went to the brothel – so to the respondent, as she was the owner – and the remaining $67 was divided up depending on the percentage of ownership, in effect.
So because the respondent had 50 per cent in three of the victims, she got the $43 and then 50 per cent of the $67 for each instance and that continued. For $45,000 it is 900 clients. There were two of the complainants that had expunged the debt, so to speak. It took approximately six months of work in the conditions of working six days a week, 10 to 12 hours a day.
GLEESON CJ: What did they do after they had paid off the debt?
MS ABRAHAM: They continued to work but the circumstances changed, which in the Crown submission to the jury was very important because when they arrived in the country their passport and ticket were taken from them and were kept in a locker at the brothel. I appreciate that there is repeated reference that that was for immigration purposes but one of the purposes, according to DS, the co‑offender, was because the respondent was afraid that they were going to run away.
GLEESON CJ: Is it your case that after they paid off the debt they ceased to be slaves?
MS ABRAHAM: Yes.
GLEESON CJ: That is what I wanted to know. Thank you.
MS ABRAHAM: The charge relates to the period while the debt was in force.
KIRBY J: But they stayed on working, which rather suggests that they did not conceive of themselves as slaves. Slaves do not normally stay on working in the circumstances of slavery.
MS ABRAHAM: The circumstances, with respect, were different. They had their passports back, they could choose their hours of work, their work hours were less, and they moved out of the premises which they had been required to live in.
CRENNAN J: Did they get the $67?
MS ABRAHAM: They got $50 for each client thereafter.
KIRBY J: I think that is all they ever got, is it not?
MS ABRAHAM: That is correct. On what has been euphemistically described as their day off, where they worked, they got the $50 that had previously notionally gone to pay off the debt for themselves. So that is all they ever got. It is significant in the appellant’s submission that the circumstances did change when the debt was ‑ ‑ ‑
KIRBY J: Do you say it is not significant that when they changed that they remained in the brothel working?
MS ABRAHAM: They had come to Australia to work ‑ ‑ ‑
KIRBY J: I mean, that rather suggests that for them this was an employment, not a slavery.
MS ABRAHAM: Your Honour, with respect, a happy slave is a slave nonetheless. These people had come to Australia to work. They worked for six months for next to no money. Their time – they had managed to get rid of the debt. They then choose to continue to work in the field in which they work.
GUMMOW J: You used the word “choose”. That suggests alternatives were open to them. What else were they going to do?
MS ABRAHAM: Absolutely.
KIRBY J: There is a suggestion in the respondent’s submission that the evidence supports a contention that they were free to go and could have taken access to Thai consular or embassy staff, or the police for that matter.
MS ABRAHAM: Your Honour, the circumstances – and I have described part of them – in which they came to Australia, in the Crown submission meant that that as a reality was in effect not a reality. They were controlled. They had come here to work. They knew they had to get past the $45,000 mark.
KIRBY J: That is the matter that I would like to be satisfied about because reading the submissions and going only on the submissions and without the entire record I have to say to you that there is, in my mind, at least, a very real question as to whether this falls on the line of a slavery type arrangement or an oppressive employment type arrangement and therefore I do not know how I can sort that out in my mind without having the record, which is the normal way we work these sorts of things out.
MS ABRAHAM: As I said, there is a copy in Court. We can make individual copies for the Court. It was arranged because of the size of the transcript that there would be one copy in Court and copies made, if requested.
KIRBY J: I mean, we would be very naïve if we did not keep in the back of our mind that there are very large movements of populations in the world today, including of commercial sex workers or of women and some men who move – particularly in Europe and elsewhere – who do so for economic advancement and that that is just part of the reality of the world we live in. I mean, United Nations figures would show that this a very substantial enterprise.
MS ABRAHAM: With respect, that is correct, and with respect, it is considered, in effect, a modern form of slavery because in many instances what is happening is similar to what happened in this instance.
KIRBY J: It will be in some cases but in other cases it will be a chosen decision of those who are involved and the fact that these were women who had worked in the commercial sex industry in Thailand and came to this country in pursuit of an arrangement which they made there and stayed on in the brothels after they had paid off their debt is at least arguably evidence against notions of involuntary slavery.
MS ABRAHAM: In my submission, while the fact they came voluntarily is a relevant factor, your Honour is placing far too much weight on that aspect and, with respect, ignoring the reality of the situation where they come to this country, they speak little or no English, they have little or no money – three, I think, that gave evidence as to the money they had. One had $50, one had $60 and one had less than $100. One was given money by the person who escorted her here, $500, then it was taken back when she got here, obviously, so she had money on her.
Their passports are taken away, their tickets are taken away, they are fearful of Immigration. They were, in a couple of instances, in hiding on certain nights because of a risk of Immigration finding them. They were told they were not to leave the premises. They were not given keys, with respect – and I will come back to the keys in more detail in due course.
KIRBY J: There is a dispute about that in the submission.
MS ABRAHAM: Yes, and that is why I will come back to it in more detail. But, they were told, in effect, to fear Immigration and if questioned by Immigration to say they did not have a contract and did not have a boss and they came to Australia voluntarily, on their own accord. With respect, what choice did these women have but to do what they were doing at the given point of time. It is not a scenario that they are going to think, “Well, I can go to the Thai Consulate”. They do not have a passport. They cannot get out of there. They have no money. They have no valid visa. As I said, it is valid on its face but they are told be fearful of Immigration.
In my submission, one needs to look at it in that context because it is in that context that one has control. It is a different sort of control than perhaps locking somebody in a room but it is control, nonetheless, and in many senses a more insidious and effective control because these people were so dependent on them they could not do anything.
KIRBY J: It is part of the prosecution case that the person that accompanied them from Thailand was a kind of controller - a person who was, as it were, monitoring their movement and keeping control of their physical person.
MS ABRAHAM: It was not put that they were a controller, but it was a part, really of the process of getting them to this country. So there was no evidence to suggest strictly that that is what they were there for. But, as I said, these women were arriving with nothing. There had to be the connections made at this end, which included connections with DS, the co‑offender in this instance; discussions about purchase – whether they are going to go to this brothel or not. They arrived in Sydney; they were taken to the brothels in Melbourne. So, in my submission, they voluntarily came, so to speak, yes. It is a factor, but one has to see it in that context.
It is why with respect, that when the learned sentencing judge ultimately sentenced the respondent he, in effect, posed the question “Well, what else could they do” because, with respect, that was the nature of the circumstances.
GLEESON CJ: Well, now, just to be clear on what you case is, they voluntarily came here to work as prostitutes you said.
MS ABRAHAM: Yes.
GLEESON CJ: After they had paid off their debt they ceased to be slaves.
MS ABRAHAM: Yes.
GLEESON CJ: So they commenced to be slaves when?
MS ABRAHAM: One would have thought when they left Thailand. Our case was while they were in Australia, but the charge period is when they were in Australia.
GLEESON CJ: They commenced to be slaves at the latest when they arrived in Australia and they ceased to be slaves when they paid off their debts.
MS ABRAHAM: That is correct.
GLEESON CJ: Thank you.
MS ABRAHAM: Can I touch on the question of the keys because the keys have been raised by your Honour Justice Kirby on a couple of occasions. The accommodation that the complainants lived in, there were two sorts. There was an apartment across the road from the respondent’s house. That was the apartment where there was the issue of whether it could be locked from outside or not. There was also another house that - the woman that ran the house was referred to as “Mummy”. She worked for the respondent at the brothel. Various of the complainants were in both places. The conditions were slightly different at both.
In the apartment there were a number of women. There was no – I think the evidence was three or four beds. It is a one‑bedroom apartment with three or four mattresses on the floor in the bedroom of the apartment. The complainants gave evidence they did not have a key, that they were picked up each day and dropped off each day. The brothel was not very far all. It was around the corner from this particular apartment. So picked up, dropped off. When they were dropped ‑ ‑ ‑
KIRBY J: That is explained by the fact that their working hours were often very late at night and that public transport really was not available. That was the only way to get from the brothel to their sleeping quarters. I mean, I am simply saying that that is what is in the respondent’s submission.
MS ABRAHAM: Yes, I accept that, but I was about to pose a rhetorical question explained by her, because the respondent did not give evidence. So the evidence was these women were picked up and dropped off. The key was used by whoever was doing the picking up or dropping off at the particular apartment. Keys were found with the respondent, another person who was charged but ultimately acquitted and nollied, and DS. So they were the ones that had keys to that apartment. Pausing there a moment, it is important, with respect, a number of the matters that have been argued by the respondent are simply an inference that they wish to be drawn from the facts, for example, the hours of work, therefore they were driven, with respect, but ‑ ‑ ‑
KIRBY J: It seems a pretty fair inference that if you finish work at 2.00 am you are going to need somehow to get home and at that hour there is not much public transport and it might be dangerous, so being driven home is not all that odd.
MS ABRAHAM: They started in the afternoon. The brothel was around the corner, their work clothes were in the brothel – so it was not that they were walking around in other sorts of clothes and it is in the context where their passports have been taken away and there is evidence that one of the reasons that occurred was so that they could not run away. So when one is considering the types of scenarios put forward as alternatives – one of the complainants worked a day shift on occasions; she was picked up regardless. It did not alter whether they were on day shift or night shift.
GLEESON CJ: Is there a different offence of debt bondage?
MS ABRAHAM: There is.
KIRBY J: Now.
MS ABRAHAM: There is now, sorry.
GLEESON CJ: What is the difference between debt bondage and what you say is slavery, in a case like this?
MS ABRAHAM: Before I answer your Honour the Chief Justice’s question, can I just finish answering about the keys; otherwise I might forget to return to it.
GLEESON CJ: Yes.
MS ABRAHAM: In relation to the other accommodation, which was the accommodation at Mummy’s, there were a number of women there, some contracted and some uncontracted – uncontracted being, obviously, they had worked off their debt.
KIRBY J: So the uncontracted are not slaves and they are working with the slaves.
MS ABRAHAM: They were living in the same house.
KIRBY J: Did they have keys, did they?
MS ABRAHAM: Yes, or had freer movement, because the evidence from Mummy was that after she got to know them and they had been there a couple of months and she would trust them – for example, she might let them out with one of the uncontracted persons – she did not, however, on her evidence, tell the respondent that she was doing that. So even the people at Mummy’s asked permission if they were going to go anywhere; they would go with somebody. They did not just wander off, with respect. Your Honours, debt bondage, the offence was enacted in 2005.
GLEESON CJ: I realise it did not apply to the relevant time but today, in the circumstances of a case such as the present, what do you say is the difference between debt bondage and slavery? They are two different offences.
MS ABRAHAM: Your Honour, the difference is that in relation to slavery there are powers attaching to the right of ownership being exercised over the person.
GLEESON CJ: In a case such as the present, how would you explain to a jury the difference between the crime of slavery and the crime of debt bondage?
MS ABRAHAM: I do not know, with respect, that one would be required to but, in my submission, what one would do is say that in relation to slavery it is a different offence because there are other aspects to it. The critical one obviously and the differentiating feature is there are powers attaching the right of ownership being exercised over the person.
GLEESON CJ: At some stage in your submissions you are going to deal with the question of this concept of powers attaching to the rights of ownership.
MS ABRAHAM: Certainly.
HAYNE J: Surely the relevant difference between the offences is, at least for present purposes, the slavery offences with which we are concerned are possess or use, are they not?
MS ABRAHAM: Yes.
HAYNE J: It is not an offence of slavery, it is an offence of possess or use a person who is a slave?
MS ABRAHAM: Yes.
HAYNE J: Debt bondage strikes at the making of the arrangement, does it not?
MS ABRAHAM: It does.
HAYNE J: It is not the first time the criminal law has fastened upon different aspects of quite complex human interrelationships.
MS ABRAHAM: And, with respect, it is not the first time that a factual scenario in a criminal matter might be a more serious offence or might also be a less serious offence.
KIRBY J: But does not the enactment of the subsequent offence of debt bondage and its possible application to the same factual scenario as a background rather suggest the need to keep a very clear understanding of what is slavery as a very aggravated and horrible form of human control of another human being which I think is an offence of universal jurisdiction and to also pay attention to the intention aspect of the offence and to elevate that to a proper level in order to keep distinct, separate and very serious the crime of possessing or using a slave?
MS ABRAHAM: There is no doubt that there is an offence of debt bondage and there is also no doubt, with respect, that one needs to ‑ ‑ ‑
HAYNE J: No, there is not an offence of debt bondage, Ms Abraham. You have to be more accurate. There is offences constituted by engaging in conduct that cause another person to enter into debt bondage. No doubt the abbreviation is a convenient tag, but the abbreviation masks critical elements of the offence.
MS ABRAHAM: I agree, and I have used the short form and, indeed, in the submissions by both parties the offence has been referred to as debt bondage.
HAYNE J: The tag is obscuring critical elements.
MS ABRAHAM: Yes, I agree. The offence of debt bondage – we have done it again.
GLEESON CJ: How is it described in the statute? What does the heading to the statute say?
MS ABRAHAM: Offences relating to debt bondage or offence of debt bondage.
KIRBY J: That is why everybody is using the tag.
GUMMOW J: Section 271.8, “A person commits an ‑ ‑ ‑
MS ABRAHAM: Could not help it coming out. Your Honours, that offence was enacted, in effect, according to the explanatory memorandum, as an alternative offence where the more serious offence could not be proved. It was not in the original legislation, as is obvious. As is also obvious, the definition of “slavery” in the legislation has the phrase “including where such a condition results from a debt or contract made by the person”.
KIEFEL J: There is a very, very big difference in penalties?
MS ABRAHAM: Absolutely. But what one is looking at in terms of possessing or exercising any other power attaching to the right of ownership, one is applying that to the facts of a particular case, that those facts, there might be a debt of an amount of money, does not automatically mean that that has to be the lesser offence and it does not fall within the more serious offence.
KIRBY J: The offence of enslavement and of sexual slavery, the specific offence of sexual slavery under section 268.15 was in force at the relevant time. Is that correct? That is to say, it was available for use in the present case if it applied to the facts.
MS ABRAHAM: I am sorry, which section, your Honour?
KIRBY J: It is section 268.15. I am referring to the respondent’s annexure A setting out certain offences and then they have provisions enacted after the alleged offence has occurred and that includes offences of trafficking in persons and so on, but at the time the alleged offences occurred there is the offence of the “Crime against humanity‑enslavement” - 268.10 and “Crime against humanity-sexual slavery” – 268.15 and “Crime against humanity‑enforced prostitution” – 268.16.
I took it that the respondents were submitting, by making these available to us, that there were particular offences for sexual slavery and instead of that you chose to prosecute under the offences of possessing or using a slave which, as it is suggested, is a more aggravated and more serious offence carrying a more aggravated and serious punishment.
MS ABRAHAM: The offences that your Honour is referring to were enacted in 2002 and are part of the division that relates to – offences against humanity and related offences – the division that relates to war crimes and the like.
KIRBY J: I can only assume that the reason the respondent has put that before us is to show that offences of sexual slavery are recognised by the Federal Parliament, nuanced specific and particular and that they are different in kind than the offence of slavery, period, or use and possession of a slave because that is a crime of universal jurisdiction, which along with piracy is one of the very few crimes which humanity is so horrified for it says it can be prosecuted in any country wherever it happens.
MS ABRAHAM: Your Honour, the sexual slavery provisions that are being referred to, as I said, were part of the enactments in relation to – and I will use the - international provisions and war crimes. The provisions include a reference to:
the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Those provisions, with respect, are different to the provisions that we are talking about in this instance. I have assumed, rightly or wrongly, that my friends have put that before the Court to show not that they could have been charged necessarily with that, but there is offences that are defined using different terminology and, again, I have assumed the argument is, and those sorts of offences, if anything, this is sex slavery.
KIRBY J: Yes. That is how I read it, that it is being put before us to show that when the Federal Parliament directs its attention to the subject it can create and express crimes of sexual slavery but you are not seeking to bring it within any crime of sexual slavery, specifically so-called, however defined by the Federal Parliament, you are seeking to call it within the general offence of possessing or using a slave which takes you back to international conventions and the question then becomes is this offence which has several aspects, to put it at its least, of a highly oppressive and to many people offensive form of employment, is it slavery and if it is what are its elements and does not that rather suggest that judges have to give very clear directions to juries about the components and very clear directions on the mental element or so-called fault element that the jury must find in order to convict?
MS ABRAHAM: I do not take any issue at all with the concept that of course this is a serious offence and of course the judges have to take great care in directing in relation to the elements, physical and the fault element, in relation to this matter. In my submission, one could not have charged sexual slavery under the provisions for the reason I indicated earlier. The reason section 270.3 was charged is clearly because it was considered that the conduct in this case amounted to that indeed – that somebody was being possessed or used.
The issue becomes, with respect, yes, of course the directions must be clear and must be correct, but what are the elements? One cannot include elements in an offence simply because we want to distinguish it from, for example, offences of debt bondage. I make that comment because the Court of Appeal did appear to take into account that there were other offences. For example, the two they mentioned were – and I keep using the phrase “debt bondage”; I apologise for that but they used the phrase as well, if memory serves – that and sexual servitude. They have taken that into account. They have speculated that you could not charge debt bondage.
GUMMOW J: Well, debt bondage did not exist, did it?
MS ABRAHAM: No.
GUMMOW J: It did not exist until 2005.
MS ABRAHAM: That is correct.
GUMMOW J: And sexual slavery came in in the course of 2002, did it not, as I understand it?
MS ABRAHAM: Yes.
GLEESON CJ: But whether the question is prompted by knowledge of the fact that there is now an offence of debt bondage or whether the question is prompted by a desire to know how to distinguish slavery from harsh and exploitative contractual arrangements or whether the question is prompted by mere curiosity, the question is what are the elements that make slavery slavery or, to be more accurate, what are the elements that make conduct possession of a slave?
MS ABRAHAM: For that offence, in the Crown’s submission, there is one physical element, a physical element of conduct, and that is possesses a slave or exercises over a slave any of the powers attaching to the right of ownership.
KIRBY J: Yes, but there have to then be – you have to break that down. You have to say what are the acts and circumstance that constitute possession and what are the facts and circumstances that suggest that the relationship is one of being a slave? Did you ever particularise the facts and circumstance that you relied on at trial to establish the existence of possession or use and the existence of slavery?
MS ABRAHAM: The Crown nominated the circumstances which it said amounted to possession and, indeed, amounted to slavery, yes.
KIRBY J: Where do we find that nomination?
MS ABRAHAM: They are not particularised in a formal way. They were obviously particularised ‑ ‑ ‑
KIRBY J: At some stage I would like you to identify for me what you contend are the facts and circumstances that amount to possession and use in this case and the facts and circumstance that indicate slavery as against what the Chief Justice has called a harsh and oppressive contract of employment.
MS ABRAHAM: Certainly. I will do that. Can I just go back to the elements of the offence, because whenever one determines the elements of a Commonwealth offence one applies Chapter 2 of the Code to the offence provision.
KIRBY J: Is this an attempt – just explain it to me – to, as it were, introduce in the Code provisions similar to those early provisions in the Griffith Code of general provisions governing intention and so on throughout the whole of the substantive criminal law?
MS ABRAHAM: Yes, it is similar. The Code is based on the comments, really, of Justice Brennan in He Kaw Teh about the concepts of conduct, circumstance and state of affairs and one’s intention that goes with them. So the Part 2 of the Code was enacted, which must be applied to determine the elements of any Commonwealth offence, be they in the Code or elsewhere.
KIRBY J: Justice Brennan, of course was a Code lawyer from Queensland and he probably felt all at sea without having some general provisions of this kind. But anyway, we have them now, so we have to try and make them work. I think you said to Justice Hayne on the special leave that this is the first time this Court has looked at how you operate these general provisions in respect of the substantive crimes.
MS ABRAHAM: Yes, and I will go to it in a moment. But we say they were not applied at all or correctly by the court in determining the elements that they did in this instance. Chapter 2, as I said, section 2.1 and 2.2 basically says what I have just said, namely it applies to all offences. It contains all the general principles of criminal responsibility that apply to any offence. Section 3 states that:
(1)An offence consists of physical elements and fault elements.
Of course, there can be more than one physical element and obviously there needs to then be more than one fault element. Establishing guilt requires proof of the physical element or elements, and the corresponding fault element or elements. The physical elements are set out in section 4.1:
(1) A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c)a circumstance in which conduct, or a result of conduct, occurs.
So an offence might have one of those, two of those, more of those. Clearly the Code also defines “conduct”:
means an act, an omission to perform an act or a state of affairs -
a state of affairs no doubt picked up from the phrase used by Justice Brennan in He Kaw Teh where he referred to possession being more properly described as a state of affairs and defines engaging conduct. The fault elements are section 5.1.
KIRBY J: These are what we used to call mens rea?
MS ABRAHAM: Yes, and in some places still do. The fault element for a particular physical element can be intention, knowledge, recklessness or negligence, and then those concepts themselves are defined. The important one for the purposes of this matter is 5.2, intention, and as can be seen, there is a different definition depending on whether the physical element is conduct, circumstance, or result.
GLEESON CJ: Well, where the offence is possessing a slave is the fact of slavery a circumstance?
MS ABRAHAM: In the Crown submission, no because of the way the legislation is structured.
GLEESON CJ: It is circular, it never tells you what a slave is.
MS ABRAHAM: An analogy that can be drawn under the previous legislation which has now been changed in relation to the possession of drug offences, possession of a prohibited import was one physical element of conduct. The cases that discuss that are in our written submissions, Saengsai‑Or and Cao being the two primary ones, both decisions from the New South Wales Court of Criminal Appeal.
GLEESON CJ: “Slavery” is defined as a condition. Is a condition a circumstance?
MS ABRAHAM: In my submission, it is not. The legislature has clearly – since these sections have been enacted there is in fact a guide to draftsmen as to how to draft legislation to ensure that one determines the elements and the guide says that one puts in every – as a separate, in effect, subparagraph - conduct if there is a circumstance that is in a separate subparagraph it is resolved. That is a separate subparagraph and that is apparent throughout the Code before those guidelines came in. In my submission, simply because of it being a condition does not make it a circumstance.
KIRBY J: But why if it is part of the element of the offence and a circumstantial element of the offence that has to be established by the prosecution?
MS ABRAHAM: There is no doubt it has to be established by the prosecution but, with respect, that does not make it a separate element of the offence, just like possessing a prohibited import, as I said, under the previous legislation that was discussed in Saengsai-Or, that is one physical element. Of course in that instance the Crown had to prove that it was a prohibited import, but that did not render it being a separate element, as in a separate physical element.
GLEESON CJ: What are the physical elements then, you say, of the offence created by section 270.3(1)(a)?
MS ABRAHAM: The physical elements of this offence, there is one, conduct – that is:
possesses a slave or exercise over a slave any of the other powers attaching to the right of ownership -
So in this instance, as a matter of practicality, she was charged with possessing a slave and she was charged with using a slave – “using” in simple terms.
GLEESON CJ: When you are charged with possessing a prohibited substance the fact that that which you possess and that which you know you possess is a prohibited substance is what, a circumstance?
MS ABRAHAM: Under the previous legislation – as I have indicated, it has been redrafted, there are new drug provisions – but under the provisions that were considered in Saengsai-Or it was not considered a circumstance. It was one element, a state of affairs, conduct – and “conduct” is defined to include state of affairs.
GLEESON CJ: And they decided that for the offence of possessing a prohibited drug you needed to know that that which you possessed was a substance but not necessarily precisely what kind of drug it was. In other words, you needed to know it was an illegal drug but you did not need to know it was heroin, as distinct from cocaine.
MS ABRAHAM: That is correct. What the court – and I have used Saengsai-Or and Cao as examples – as I have indicated, the legislation has changed since then but it was in the same sort of terms as we are talking about here.
KIRBY J: You are referring to a decision now. Would you put them on the record?
MS ABRAHAM: I am sorry, Saengsai-Or (2004) 61 NSWLR 135, and I think that should be in Court.
KIRBY J: This is the one you referred to in your written submissions as applying, as you say, accurately, the provisions of the Criminal Code Act.
MS ABRAHAM: Yes. Saengsai-Or was probably the first occasion that the provisions – that is, Chapter 2 was applied in relation to the drug offences. The relevant consideration begins at paragraph 34. In a nutshell, the argument was this. One party was arguing - it was the Crown that was arguing that the offence, the provision of which appears in paragraph 44, contains a physical element of conduct and a physical element of circumstance. The court concluded that was not so.
KIRBY J: Can you explain to me again in a nutshell why that is a submission that the Crown would want to put and why the opposite is one that the accused would want to put, just so that I see how it operates in practice at a trial?
MS ABRAHAM: Your Honour, it actually depends on the charge because in some instances a circumstance has a different fault element.
KIRBY J: I understand that, but maybe you can bite on the concrete fact, circumstance or terms of this offence, why does the accused want to have her argument and why do you want to have your argument? I know both of you say it is the proper interpretation of the Act but what is the Realpolitik behind?
MS ABRAHAM: Your Honour, I have considered it and I do not know that as a matter of reality there is much if any difference at the end of the day.
GLEESON CJ: Is not the difference between the two of you that you do not want to have to prove that the accused thought about whether these people were slaves and your opponent does want to produce the result that the accused has to have reflected upon whether these people were slaves?
MS ABRAHAM: In my submission, having a circumstance would not have that end result because what the respondent must have intended, in our submission, is – and one accepts that to intend to possess something, for example, one needs a degree of knowledge – one needs to know the facts and circumstances that give rise to that condition. One does not need to know and I do not take my friends to be saying that the accused needs to know that there is an offence called slavery.
GLEESON CJ: No, but the fourth element defined by the Court of Appeal was an element that related the mental state of the accused to the fact of slavery. Is that not the point of departure between the two sides to this argument?
MS ABRAHAM: Absolutely, but that fourth element cannot be justified as a circumstance in any way that would get you that direction. There is nothing, with respect, in relation to the Code and the definitions of “intention” that would any way justify a direction that depends on what the person doing the act is, in effect, what their reason is. I use that word “reason” because the fourth element and how it is explained it is because she thinks, to put it bluntly, she is entitled to do it.
GLEESON CJ: If you are charged with possessing a prohibited drug, how much do you need to know about what is in your pocket before you can be found guilty of having the necessary mental state for possession?
MS ABRAHAM: Your Honour, knowledge under the Saengsai‑Or is not an element but it would be part of proof of intention and the direction that is still given in relation to that aspect is the direction or the comments that this Court made in Kural (1987) 162 CLR 502.
KIRBY J: Where are the comments?
MS ABRAHAM: At 504 there is a passage in the – it is not there but Cao is in Court and it is quoted in Cao (2006) 65 NSWLR 552. Kural is cited and a passage from that quoted in paragraph 28 of that decision. Your Honour, I accept one is dealing with a difficult concept because a drug is a drug.
GLEESON CJ: I am not sure you have answered my question. You have given a reference to a case, but my question to you is, if you have something that somebody has put in your pocket, you know it is there, you can feel a bulge in your pocket, and you are charged with possessing a prohibited drug, how much do you need to know about what is in your pocket before you have the mental state necessary to constitute possession?
MS ABRAHAM: You have to intend to possess, therefore you have to have knowledge – you do not have to have actual knowledge – but the intention can be inferred from an awareness that you believe a drug is there.
GLEESON CJ: But you have to intend to possess a drug as distinct from possessing whatever it is somebody stuck in your pocket.
MS ABRAHAM: I agree, and the difficulty here, I accept, is that there is no “a drug is a drug”, so to speak, but there is no “a slave is a slave” ‑ ‑ ‑
GLEESON CJ: How much do you need to know about the person that you are using – I am sorry. That is one alternative, take possession. How much do you need to know about the person with whom you are dealing before you can be said to be possessing a slave?
MS ABRAHAM: In my submission, you must know the circumstances which create the condition. In other words, in this instance, know that you are controlling her to the degree that amounts in law to possession, and know the circumstances that create that.
GLEESON CJ: But you do not have to reflect upon the question whether you are doing that pursuant to a contractual right or whether you are exercising a right of ownership.
MS ABRAHAM: You do not, in my submission.
KIRBY J: But is that not difficult to reconcile with what you just told us is how far the intention element runs in the case where the defence is, “Somebody put this in my bag. I thought I saw something and I thought it was liquorice and it turns out to be a prohibited drug. I had no intention.” I mean, why should it not be a matter of intention. It is a very serious crime, 25 years imprisonment.
MS ABRAHAM: Your Honour, I am not suggesting it is not an offence that requires intention, quite to the contrary. In the Crown’s submission, you do need the intention but what you do not need to turn your mind to is, is it a power attaching to a right of ownership or, you know, “Is this an offence of slavery I am committing?” What you need to intend to do is undertake the conduct which creates that condition, so you intend to control, you intend to – and it is the whole combination of circumstances in this instance – restrict their movements and the like.
In my submission, that is sufficient to prove an offence of slavery and, with respect, I do not take it to be suggested that one needs to have actually turned one’s mind to slavery. If one does not need to do that, that one turns their mind to it being a right attaching, in my submission, one equally does not need to do that and can I ‑ ‑ ‑
HAYNE J: That seems to be a proposition that amounts to that the possession in question is possession by deprivation of choice.
MS ABRAHAM: In part.
HAYNE J: That is five bob on two runners in the race, Ms Abraham.
MS ABRAHAM: I agree. I did ponder hard and long before – your Honours, there is, as I said earlier, no doubt that this is a particularly difficult concept because one does not possess a person, ordinarily speaking.
GUMMOW J: That is right. Unless we get this sorted out and we construe section 270 we are not going to get anywhere because it involves metaphors.
MS ABRAHAM: It does.
GUMMOW J: We can go round and round trying to work out what conduct and intention is and then get nowhere until we know that which is the object of conduct of intention. We have to construe the section and it is now half past 11.
MS ABRAHAM: Absolutely, but the reason one has to go to Chapter 2 is to work out in law what are the elements of the offence.
KIRBY J: But the chapter is written against a background of the common law of Australia and the common law of England before it that normally, as I understand it, required that the elements of the offence must be intended and that if that is the background one would pause before giving an interpretation to Chapter 2 that cuts down on what the prosecution has to prove as to the intentional element because that is the sort of golden thread of our criminal law.
MS ABRAHAM: I think, with respect, we are at cross‑purposes. I am not suggesting that Chapter 2 says anything other than the Crown must prove intention. What the Crown says that in relation to Chapter 2 there is one definition and that is the one in 5.2, the one that relates to conduct:
(1)A person has intention with respect to conduct if he or she means to engage in that conduct.
With respect, nothing I have said undercuts that at all.
MS ABRAHAM: If the Crown is correct, the appellant is correct, that they are the elements, then ‑ ‑ ‑
GUMMOW J: Just a minute. What does the phrase “a slave” mean in 270.3(1)(a)?
MS ABRAHAM: A slave is a person who has powers attaching to the right of ownership exercised over them.
GUMMOW J: I am sorry. The word “slave” is not defined.
MS ABRAHAM: No, it is not.
GUMMOW J: What is a slave in 270.3(1)(a)?
MS ABRAHAM: In my submission, one has to take the definition of a “slave” from the section 270.1, that is, the definition of “slavery”:
slavery is the condition of a person over whom any or all of the powers attaching to the right of ‑ ‑ ‑
GUMMOW J: It becomes circular.
CRENNAN J: It is completely self‑referential. On one view, one needs to know what the word “possesses” means in this subsection and also what it means to say exercise any of the other “powers attaching to the right of ownership”. What does “the right of ownership” mean in that context?
MS ABRAHAM: What occurred in this trial, the definition of “possession” was the definition that would ordinarily be given in a trial where possession is the ‑ ‑ ‑
GUMMOW J: You do not ordinarily possess a person.
MS ABRAHAM: I agree, your Honour.
GUMMOW J: So common law is no help other than by some metaphor and the question is, how do you go about forming the metaphor?
KIRBY J: In America in the plantations you did possess a person.
GUMMOW J: But you do not now.
KIRBY J: Well, that is a question. If Parliament wants to use “slave” in some modern fashion and does not define it and uses it in terms of possessing of slave, which one time you certainly could do, why should we be doing surgery to make the word have a new and different meaning, unless we can bring it in by reference to developments of international law, which is a separate issue which we will get to in due course? But the words there are “possess a slave”, so on the face of things, it means you possess a human being who is a slave.
MS ABRAHAM: Yes. One assumes that “possess” is seen to be ‑ ‑ ‑
GUMMOW J: What do you mean by “possess”? Is it a legal term or is it not a legal term?
MS ABRAHAM: It is a legal term. I accept one cannot possess a person ‑ ‑ ‑
KIRBY J: You say against the history of 200 years and our knowledge that we have not had slavery ever in Australia of the old type, chattel slave, that therefore it must be being used in some different sense?
MS ABRAHAM: It is being used according to the explanatory memorandum in the sense that one would use “possession” ordinarily as in possession ‑ ‑ ‑
GUMMOW J: Ordinarily.
MS ABRAHAM: Yes, as in possession of a drug, which is why the definition that was given to the jury is – and it is on page 22 in the written directions. It is in numerous places in the summing‑up.
GUMMOW J: You do not have manumission of a chattel, do you?
MS ABRAHAM: I am sorry?
GUMMOW J: One does not talk about manumission of a chattel.
MS ABRAHAM: True.
GUMMOW J: You have to face up to these things.
MS ABRAHAM: But if one is talking about – I accept that there is no definition of “slave”, one has a definition of “slavery”. One looks to, one assumes, what are the powers attaching to the right of ownership. Parliament has indicated one, namely, possession, and not indicated others. Possession is ordinarily meant to be someone where you have the capacity to control the item. I am not suggesting here it is an item.
GUMMOW J: Capacity to control in some de facto sense?
MS ABRAHAM: Yes.
GUMMOW J: Capacity to control in a sense that the law supports it in some way, by the law of tort, for example?
MS ABRAHAM: No, as a de facto.
GUMMOW J: All right.
MS ABRAHAM: All these rights, with respect, must be de facto because one cannot own a person. So, in the appellant’s submission, to give a direction in relation to possession in the manner, for example, as happened in this trial, was perfectly appropriate, there being no other, obviously, and it being consistent with what the Parliament intended to be the meaning of “possession”.
KIRBY J: Assuming we can define slave by reference to the definition of “slavery” in 270.1, there is a curiosity in which I need your help. It says:
person over whom any or all of the powers attaching to the right of ownership are exercised –
I have a difficulty with that because, why do you need all of the powers if you say any of their powers are enough. But given that you have the juxtaposition of “any or all of the powers attaching to the right of ownership”, the problem I have is with the word “any”, “any . . . of the powers attaching to the right of ownership”. Now, if you are an owner, you can require a person to be present from 9.00 to 5.00 to do the work and does proof that you can do that amount to proof that the person is a slave? That cannot be so. So, how do you interpret the word “any”?
When I was an article clerk, there were many elements of my employment which were very similar to slavery; long hours, lack of food and various forms of oppression, but no one would have said it was slavery. So if it is “any . . . of the powers attaching to the right of ownership”, how does one give that content so that you do not slip from an oppressive form of employment into a form of slavery?
MS ABRAHAM: In my submission, one would need to go to international jurisprudence and the submissions that my friends are going to make in due course, because the concept has clearly been considered in particular by the ICTY as to what sort of indicia are there that means that somebody is in a condition of enslavement in that instance.
KIRBY J: That phrase “any or all” comes from international law, does it not?
MS ABRAHAM: Yes, it is from the 1926 Convention.
KIRBY J: Is that in the League of Nations Convention?
MS ABRAHAM: Yes, the 1926 Convention.
KIRBY J: It seems very loose thinking to me because, if it is “any or all”, then you can forget the “or all” and then say any powers attaching to the right of ownership and they will be all sorts of quite inconsequential powers that owners have over property which are not oppressive enough to be slavery.
MS ABRAHAM: In the Crown submission, in this instance what the jury were required to do was look at the entire circumstances – that does not make it an element of the offence – but the entire circumstances to determine – and by circumstances I mean passport taken away, size of debt, a whole lot of things – to determine whether they fit within, in effect, that definition, their having powers attaching to the right of ownership exercised over them.
GLEESON CJ: Is it one of your submissions that the expression “any or all” is there to indicate that it is not limited to chattel slavery, which would apply to all the powers?
MS ABRAHAM: Yes.
GLEESON CJ: Can I raise with you a slightly different problem?
MS ABRAHAM: Certainly.
GLEESON CJ: How do you tell whether a power attaches to the right of ownership? Let me give an example. If I own a car, then a power attaching to the right of ownership is to drive the car when and where I want to, subject to the rules of the road, but I would have the same power if I were the lessee of a car and not the owner of a car. How do you tell whether the power of which you are speaking is one attaching to a right of ownership as distinct from attaching to some other contractual right?
MS ABRAHAM: In my submission, whether it attaches to a right of ownership depends on the context in which it appears. So, for example, in this instance if somebody – I will use the slave example or take the extreme example – is locked in a room and those sorts of things, that there is no doubt that the person is a slave, and then somebody puts the person to work, one judges that power in the circumstance in which it existed.
MR BENNETT: Yes, your Honour. For different reasons, though, yes, because of the externality.
KIRBY J: There would be no difficulty in framing a specific provision addressed to the type of conduct which is targeted here without any need to use the word “slavery”.
MR BENNETT: Your Honour, the conduct could take place without any external element, of course, and then the statute could apply. The external element is something that one could legislate separately against if one wanted to, yes. The passage in this case, if I can just show your Honours, because these were the words I relied on, it is at page 953C.
KIRBY J: We are back to the orange juice.
MR BENNETT: Yes, your Honour. It is this general proposition, where his Lordship says:
But, of course, that first impression and initial avulsion –
I think he means revulsion –
from incongruity was formed before Mr. Bridge had deployed his arguments. The first of these was that the word “including” in sub‑paragraph (a) of group 35 was used in its extensory meaning and not in that more normal meaning of “such as” which may so often cover matters mentioned ex abundante cautela.
I do not have to go any further. There are other cases of course one can refer to where “includes” is used in different ways, but the importance for present purposes is that one possible use of “including” is merely to make assurance doubly sure and as I will show your Honours when we come to the second reading speech in the explanatory memorandum, that is all that is being done here. The fact that the words are there does not necessarily mean that they add something.
GLEESON CJ: It could mean even.
MR BENNETT: No, your Honour.
GLEESON CJ: Even “where such a condition results from a debt”, et cetera.
MR BENNETT: We would have said what it means is, “And in case you ever had any doubt”, which no one would, “this covers the situation where”.
GLEESON CJ: That is what I meant by “even”.
MR BENNETT: Yes. In that sense, yes, your Honour. In that sense I agree.
GLEESON CJ: Notwithstanding.
MR BENNETT: Yes, that is another way of getting it. Of course, one gets that from the words themselves because your Honours see the words “such a condition”. So having defined the condition of what slavery is it says, “including where such a condition” exists and “results” from something else. So it is not to be an answer that it “results from a debt or contract made by the person.” That is the second point, “such a condition”.
The third aspect of construction comes from the words “results from”. We submit that the words “results from” are talking about historical causation rather than juridical basis. It is not saying “including where such a condition is based on the law of contract or paying off a debt”. It is rather saying, “including where historically what gave rise to this terrible relationship was a real or imagined debt or a real or imagined contract”.
KIRBY J: Why are we spending so much time on this last phrase? It is slightly different from the Convention, but it is not material to this case. If in fact, one came to a view that the definition was within the Convention, but this added phrase were not, then you would strike the added phrase out, I would think. Why are we troubled by it? It is not material.
MR BENNETT: The argument is put against us that this phrase goes beyond the Convention.
KIRBY J: So what? It is not material to the facts in the prosecution in this case.
MR BENNETT: On one view of it, it might be said that historically there was a contract made by the person. On another view of it, there was not. It is clear, as Justice Gummow pointed out, that on the facts there never was a debt. There was only a pretend debt. But in a sense, debt slavery can arise from a pretend debt or an artificial debt.
GUMMOW J: What does one make of paragraph 5 in the Court of Appeal judgments:
Each of the five women voluntarily entered an agreement, through a broker, whereby she incurred a debt . . . which she was required to pay off by having sex with men in Australia.
MR BENNETT: Yes, it might be difficult to ‑ ‑ ‑
GUMMOW J: That is what is being said.
MR BENNETT: Yes, it has been said, your Honour.
GUMMOW J: What does it mean?
MR BENNETT: I would not like to be appearing for the plaintiff seeking to enforce that contract as a valid contract under Australian law.
GLEESON CJ: But there are different methods of enforcement.
MR BENNETT: There are, your Honour, and that is my point about debt or pretend debt and contract or pretend contract. All those words are doing is saying, as a matter of history, it just does not matter if the defendant can find something that is or looks like a debt, or is or looks like a contract, as the historical reason all this happened, we just forget that, we are concerned with what you are doing now. That is all the words are saying. We submit, for reasons I will come to, that that same construction is given to the Convention which does not have these words.
KIRBY J: Maybe the answer to Justice Gummow’s puzzle is that where it refers to a debt it is like its earlier reference to a slavery; it does not mean it in its primary sense, it means it in some special or general, vague, metaphorical sense such as the fact that the person thought there was a debt.
MR BENNETT: Yes.
GLEESON CJ: Would it mean undertook an obligation?
MR BENNETT: Well, it may not be an enforceable obligation.
GLEESON CJ: The sentence is introduced or includes the word “voluntary”. That is in the sentence. So, what they are talking about is somebody agreeing to do something. If they did not agree to it, it would not be voluntary.
MR BENNETT: Yes. Well, there may be a grammatical question as to whether the words made by the person qualify the word “debt” or just qualify the word “contract”. A person, particularly the debtor, is not normally described as making a debt. But certainly it is making it clear that that sort of voluntariness somewhere in the history of the relationship is just to be forgotten about.
What we are concerned with is what the person is doing to the person now, not with how they got there. They could have got there in any of a number of ways. They could have got there because of some obscene ethnic practice. They could have got there because of some perversion in the family relationship. They might have got there because two people make a bet who are in some whimsical situation. There are all sorts of ways people can get there and, in a sense, that does not matter. The statute is talking about where we are now, not how we got there, and these words are just emphasising that.
Frequently one sees in statutes today, where statutes are written much more than they used to be for the people as well as for lawyers and courts, one sees provisions in statutes designed to explain to people that certain ways out do not work or that the statutes intended to apply in particular situations ‑ ‑ ‑
GLEESON CJ: This is not being put as a consideration against the construction that you are advancing, but in the present case the “debt” was central to happened, was it not? It defined the period of slavery. According to the prosecution, these people ceased to be slaves when the debt was discharged. So the debt was not simply something that had happened in the past and had no continuing relevance. They were slaves, according to the prosecution case, so long as they remained under any debt. That is why we are so curious to know what the debt was.
MR BENNETT: There are two answers to that, your Honour. The first is it would have been exactly the same if the women had been told, “You will work here until on the following notion or calculations there has been X‑dollars produced by your labours”. That would have exactly the same effect without using the word “debt”. The word “debt” was nothing more than a way of selling it to them in the context.
GLEESON CJ: Well, there was something more. It defined the period of their slavery. How do you know how long they were to be slaves for? The answer is, until they had paid off the debt. That is what Ms Abraham said to us this morning. They ceased to be slaves when the debt was discharged.
MR BENNETT: I would characterise it differently, your Honour. They would cease to be slaves when the amount of money they had earned for the brothel reached a certain figure which for the purpose of some sort of persuasion was called a debt by one person to another, but that is nothing to do with it.
GLEESON CJ: What difference does it make saying that is or is not a debt?
MR BENNETT: Well, your Honour, it may not make a great deal of difference, but it is a question of analysis of the legal situation. One can imagine how long the case would last if the present respondent had sought to sue for the debt.
KIRBY J: But can I ask you a factual question – I may have misunderstood the facts. My understanding was that the brothel took of the 110 say 60 and the sex worker was paid 50 and from that 50 the complainant had to collect enough to pay back the debt. Is that correct, or is that not a correct understanding of the facts?
MR BENNETT: I am told it is not, your Honour.
HEYDON J: Page 306, paragraph 13.
MR BENNETT: But, your Honour, in any event, all I am saying is that calling it a debt is totally false. It was described that way for reasons of convenience and, indeed, as in many cases of debt servitude, or debt slavery, or whatever one calls it, the debt is imaginary, or is created by the servitor to justify something that is otherwise unjustifiable.
GUMMOW J: There is some support for you, Mr Solicitor, at page 274, I think, in this summary of evidence, paragraph 3 there.
MR BENNETT: Yes. The word “debt” is put in inverted commas where it first appears. It is never quite clear how the debt arose. If one looks at footnote 3 there are various figures given but there seems to be something wrong with the footnote because the footnote says towards the end that:
[J] said she was told in Thailand that she would have to repay a debt of $35,000 . . . She negotiated her debt down to $40,000.
That sounds a little inconsistent.
GUMMOW J: Yes, but the critical thing is the third sentence in paragraph 3, “Once they had paid back”. That means once they had earned this amount of money for their “employers” – to use that word – they were free to go ahead themselves. That is all that means.
MR BENNETT: That is a relevant fact in relation to the relationship. I am just cavilling at the word “debt” that is all.
GUMMOW J: Yes, I understand that. But it may nevertheless be this case falls within the elements of the statutory offence without worrying about the word “debt”.
MR BENNETT: Clearly, your Honour. We would submit that quite clearly it falls within the offence without those additional words but that those words are quite valid because they do not add anything.
KIRBY J: It still has to be slavery. It is slavery that includes where the condition of slavery results in the debt or contract.
MR BENNETT: Precisely, your Honour. The words “such a condition” make that clear. The only reason I am going into this in such detail is that one of the principal arguments put against us is that these words in some way take the definition beyond the Convention and thereby invalidate it. No doubt the next step in that submission would be, and this falls only within the extended words which, for the reasons we have been discussing, is simply not the case.
I now need, in order to complete this submission, to make good the proposition that the original Convention extended to the situations where the condition results from a debt and that is fairly easy to do when one looks at the travaux and looks at the subsequent documents. Is that a convenient time?
GLEESON CJ: Yes, certainly. We will adjourn until 10.15 tomorrow.
AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 14 MAY 2008
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