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Article Excerpt
I Introduction
II Facts III On Slavery: The High Court Majority Judgment IV Concurrent Opinions V Conclusion
I INTRODUCTION
The 21st century has witnessed a renaissance of court eases dealing with slavery. In the wake of the 2000 United Nations Palermo Protocol (1) and the 2005 Council of Europe Trafficking Convention, (2) both of which establish 'slavery' as a type of exploitation to be suppressed; and the coming into force of the 1998 Rome Statute of the International Criminal Court in 2002, with jurisdiction over the crime against humanity of enslavement, (3) there have been three noteworthy decisions that shed light on the term 'slavery' in international law. Beyond the 2002 appeals decision in the Kunarac case before the International Criminal Tribunal for the former Yugoslavia (4) and the 2005 Siliadin v France decision before the European Court of Human Rights, (5) the High Court of Australia in its August 2008 case, R v Tang, (6) brought much depth of understanding to the parameters of what constitutes 'slavery' both in the Australian context, but also in international law.
The decision by the High Court is welcome, as the ICTY and the European Court of Human Rights come to diverging conclusions as to what constitutes 'slavery' in law. For the European Court, the 1926 Slavery Convention definition, which reads '[s]lavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised', (7) is consistent with 'the "classic" meaning of slavery as it was practiced for centuries'. (8) Accordingly, the Court failed, in the Siliadin case, to find that the victim 'was held in slavery in the proper sense, in other words that [the perpetrators] exercised a genuine fight of legal ownership over her, thus reducing her to the status of an "object"'. (9) However, the Court did find France in violation of art 4 of the European Convention of Human Rights, but for lesser types of human exploitation, those of forced labour and of servitude. (10)
By contrast, the Appeals Chamber of the ICTY observed that:
the law does not know of a 'right of ownership over a person'. Article 1(1) of the 1926 Slavery Convention speaks more guardedly 'of a person over whom any or all of the powers attaching to the right of ownership are exercised.' That language is to be preferred. (11)
The Appeals Chamber went on to say that in the case of contemporary forms of slavery,
the victim is not subject to the exercise of the more extreme rights of ownership associated with 'chattel slavery', but 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. (12)
With this conflicting case law in mind, the High Court provided a thorough analysis of the definition of slavery and, unlike the European Court of Human Rights, found that the 1926 definition includes both de jure and de facto slavery. Yet, the High Court did not go as far as the ICTY in accepting that de facto slavery includes elements that do not manifest powers normally associated with a right of ownership.
II FACTS
Wei Tang, the respondent before the High Court, was originally tried in the County Court of Victoria, along with another accused in April 2005. The jury in that case found the co-defendant not guilty but could not reach a verdict where Tang was concerned. Having been retried on 3 June 2006, Tang was found guilty on five counts of possessing slaves and five counts of using slaves in relation to five women of Thai nationality used as sex workers in a brothel in 2002 and 2003. The women, who had worked in the sex industry in Thailand, had come to Australia voluntarily to work as sex workers. They were escorted during their flight and upon arrival were 'treated as being "owned" by those who procured [their] passage', with a sum of AU$20 000 having been used to 'purchase' each woman. (13) The amount which the women were to pay back was set at $45 000 (this included the purchase price of $20 000, plus airfare and living expenses while working off the debt); this was to be achieved by working six days a week and reducing their debt by $50 for each customer. When the brothel, Club 417, in Fitzroy, a suburb of Melbourne, was raided in May 2003, two of the women had worked off their debt but remained as sex workers. The High Court summarises the facts thus:
each complainant was to work in the respondent's brothel ... serving up to 900 customers over a period of four to six months. The complainants earned nothing in cash while under contract except that, by working on the seventh, 'free', day each week, they could keep the $50 per customer that would, during the rest of the week, go to offset their contract debts. (14)
The trial judge noted that the women were vulnerable upon arriving in Australia, spoke no English, had little to no money, knew nobody and were not aware of either the terms of their debt or their expectant living conditions. They were required to keep hidden to avoid the immigration authorities and their passports and return tickets were kept by Wei Tang. The High Court, noting the trial judge's findings, stated that the five women 'were well-provisioned, fed, and provided for' and 'were not kept under lock and key'; (15) though the trial judge noted that they were 'effectively restricted to the premises'. (16) For the women who had paid off their debt, the restrictions were lifted, passports and tickets were returned and free choice of work hours...
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