Intervention: Commonwealth Director of Public Prosecutions v Wei Tang (2008)

IN THE HIGH COURT OF AUSTRALIA

No M5 of 2008

BETWEEN

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

and

WEI TANG

Respondent

5 May 2008

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SUBMISSIONS IN SUPPORT OF APPLICATION FOR LEAVE TO
INTERVENE AND SUBMISSIONS ON THE APPEAL

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

PART I: WHY LEAVE TO INTERVENE SHOULD BE GRANTED

1 On 17 April 2008 the Human Rights and Equal Opportunity Commission
(“HREOC”) filed a summons seeking leave to intervene in these
proceedings. The summons was supported by an affidavit of the Human Rights
Commissioner, Graeme Gordon Innes, affirmed on 16 April 2008.

2 HREOC
seeks leave to intervene in the appeal and make written and oral submissions
about:

(a) The scope of Australia’s international obligations concerning the
prohibition of all forms of slavery and the content of these international
obligations;^[1] and

(b) The interpretation and application of s270.1 and s270.3(1)(a) of the Criminal Code Act 1995 (Cth) (“the Code”) raised by this appeal and the relevance of Australia’s international
obligations in resolving the issues of statutory interpretation that arise in
this appeal.^[2]

3 Section
11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”) gives HREOC the statutory function of
intervening, subject to obtaining the leave of the court and any conditions the
court imposes, in proceedings that involve “human rights”
issues.^[3]

4 Section 270.1
and s270.3(1)(a) of the Code give effect to Australia’s international
obligations to protect the fundamental human right to be free from slavery by
prohibiting the practice of
slavery.^[4] The content of
Australia’s international obligations will therefore be relevant in
determining the meaning of these
provisions.^[5] This is consistent with
the principle that “a statute of the Commonwealth or of a State is to be
interpreted and applied, as far as its language permits, so that it is in
conformity and not in conflict with the established rules of international
law”.^[6]

5 The
definition of slavery in s270.1 of the Code, and the content of what must be
proved to establish the offences in s270.3(1)(a), are matters of public
importance that may affect the rights of persons other than the parties who are
before the Court.^[7]

6 The special expertise that HREOC has
obtained through the performance of its statutory
functions^[8] means that HREOC is in a
unique position to provide submissions that “assist the Court in a way in
which the Court would not otherwise have been assisted” in reaching a
correct determination.^[9] Paragraph 8
of the affidavit of Graeme Gordon Innes affirmed on 16 April 2008 sets out
examples of HREOC’s work concerning contemporary manifestations of slavery
and practices akin to slavery.

7 Having regard to its statutory
functions and the fundamental nature of the right to be free from slavery, HREOC
submits it has:

(a) a legitimate concern in making submissions in relation to the human
rights issues raised by this
appeal;^[10] and

(b) an interest in the subject of the litigation greater than a mere desire
to have the law declared in particular
terms.^[11]

8 No practical
considerations justify denying HREOC leave to intervene because:

(a) HREOC’s submissions are limited to points of legal principle;

(b) the parties and the Court have received adequate notice of HREOC’s
intention to seek leave to appear as an intervener and of its written
submissions;

(c) HREOC has taken care to focus its submissions so as to avoid repeating
matters adequately canvassed by the parties; and

(d) HREOC’s involvement will not significantly lengthen
proceedings.

9 For these reasons, HREOC seeks an order that it be
granted leave to appear as intervener and make written and oral submissions
subject to any conditions imposed by the Court.

PART II: SUMMARY OF SUBMISSIONS TO BE MADE IF HREOC IS GRANTED LEAVE TO
INTERVENE

10 If granted leave to intervene, HREOC will submit that:

(a) The meaning of slavery in s270.1 and s270.3(1)(a) of the Code should be given the meaning it has in the international treaties to which
those sections give effect.

(b) Australia’s international treaty obligations to prohibit all forms
of slavery, properly interpreted in accordance with the Vienna Convention on
the Law of Treaties 1969 (“the Vienna
Convention”),^[12] extend beyond prohibiting chattel
slavery^[13] to proscribing
contemporary forms of slavery that involve the exercise of “any or all of
the powers attaching to the right of ownership”.  

(c) The expression “any or all of the powers attaching to the right of
ownership” should be given a meaning that is consistent with contemporary
international jurisprudence.

(d) The Court of Appeal took an unduly narrow approach to the meaning of the
term slavery which does not adequately reflect the correct characterisation of
the condition of slavery at international law.

(e) It is possible to identify the elements of the offence of slavery in a
way that ensures clarity and consistency with Australia’s international
human rights obligations.

(f) In determining whether the actions of the accused amount to the
“exercise of any or all of the powers attaching to the right of
ownership”, the indicia of the conditions of slavery identified by
international law will assist in drawing a distinction between a power which
attaches to the right of ownership and a power which attaches to some other
relationship.

PART III: THE MEANING OF SLAVERY IN DIVISION 270 OF THE CRIMINAL CODE

11 Section 270.1 and s270.3 implement Australia’s international
treaty obligations under the International Convention to Suppress the Slave
Trade and Slavery 1926 (“the
Convention”)^[14] and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and
Institutions and Practices Similar to Slavery 1956 (“the
Supplementary
Convention”).^[15]

12 In addition to Australia’s international treaty
obligations under the Convention and the Supplementary Convention, Division 270
of the Code also gives effect to Australia’s obligations under
Article 8(1) of the ICCPR^[16] and the international customary
law^[17] prohibition on
slavery.^[18] This prohibition is
well-established and considered to be binding erga
omnes.^[19]

13 HREOC submits that because s270.1 and s270.3(1)(a) of the Code
impact on the protection of a fundamental human right and give effect to
international treaty obligations to prohibit the violation of this right, these
provisions should be interpreted:

(a) In accordance with the general principle of statutory interpretation
that “a statute of the Commonwealth or of a State is to be interpreted and
applied, as far as its language permits, so that it is in conformity and not in
conflict with the established rules of international
law”.^[20] Where there is
ambiguity, the Court should “favour a construction ...which accords with
the obligations of Australia under an international
treaty”.^[21]

(b) In accordance with the specific principle of statutory interpretation
set out by Brennan J in Applicant A v Minister for Immigration and
Multicultural Affairs^[22] that:

If a statute transposes the text of a treaty or a provision of a treaty into
the statute so as to enact it as part of domestic law, the prima facie
legislative intention is that the transposed text should bear the same meaning
in the domestic statute as it bears in the treaty. To give it that meaning, the
rules applicable to the interpretation of treaties must be applied to the
transposed text and the rules generally applicable to the interpretation of
domestic statutes give
way.^[23]

14 The
application of the first principle to s270.1 and s270.3(1)(a) means that, where
possible and, subject to the correct application of Chapter 2 of the Code to s270.3(1)(a),^[24] these
provisions should be interpreted consistently with Australia’s
international obligations as they exist at the time the interpretive question
arises.

15 The application of the second principle means that because
the definition of slavery in s270.1 takes its statutory language from the
terms of the Convention and the Supplementary Convention, s270.1 should (unless
there is a clear contrary intention in the statute) be given the same meaning
that it has in those treaties. This meaning should be derived by applying the
accepted principles of treaty interpretation.

16 The definition in
s270.1 is the same as the definitions of slavery in the Convention and the
Supplementary Convention except for the removal of the reference to the
“status of slavery” and the addition of the words “including
where such a condition results from a debt or contract made by the
person”. For the reasons set out below, HREOC submits that the additional
words “including where such a condition results from a debt or contract
made by the person” make clear what is implicit in the Convention and the
Supplementary Convention, which is that slavery can also arise from a debt or
contract where that debt or contract involves one person exercising over another
person any or all of the powers attaching to the right of
ownership.^[25]

PART IV: THE CONTENT OF AUSTRALIA’S INTERNATIONAL OBLIGATIONS WITH
RESPECT TO SLAVERY

A. THE INTERPRETATION OF TREATIES

17 In determining the
content of Australia’s international obligations under the Convention and
the Supplementary Convention, the Court should interpret these treaties
“in a more liberal manner than that ordinarily adopted by a court
construing exclusively domestic
legislation”^[26] and
“technical principles of common law construction are to be disregarded in
construing the text”.^[27]

18 Adopting this “liberal approach” to treaty
interpretation means that the Court should give treaties a broad, contextual
interpretation “unconstrained by technical rules of [domestic] law, or by
[domestic] legal precedent, but on broad principles of general
acceptation.”^[28]

19 These principles of general acceptation are enshrined in Article
31 and 32 of the Vienna
Convention.^[29] These articles
provide:

Article 31 General Rule of Interpretation

• (1) A treaty shall be interpreted in good faith in accordance with the
  ordinary meaning to be given to the terms of the treaty in their context and in
  the light of its object and purpose.
• (2) The context for the purpose of the interpretation of a treaty shall
  comprise, in addition to the text, including its preamble and annexes:
  • (a) any agreement relating to the treaty which was made between all the
    parties in connection with the conclusion of the treaty;
  • (b) any instrument which was made by one or more parties in connection with
    the conclusion of the treaty and accepted by the other parties as an instrument
    related to the treaty.
• (3) There shall be taken into account, together with the context:
  • (a) any subsequent agreement between the parties regarding the
    interpretation of the treaty or the application of its provisions;
  • (b) any subsequent practice in the application of the treaty which
    establishes the agreement of the parties regarding its interpretation;
  • (c) any relevant rules of international law applicable in the relations
    between the parties.
• (4) A special meaning shall be given to a term if it is established that the
  parties so intended.

Article 32 Supplementary rule of
interpretation

Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order
to confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

20 Australian courts have accepted that the Vienna Convention codifies the international customary law of treaty
interpretation^[30] and have held
that it applies to the interpretation of treaties by Australian
courts.^[31]

21 The interpretation of a treaty should be a “holistic
exercise”^[32] and “may
require a consideration of both the text and the object and purpose of the
treaty in order to ascertain its true
meaning”.^[33] The object of
the Convention and the Supplementary Convention is to bring about the complete
abolition of slavery in all its forms.

22 The right to be free from
slavery is a non-derogable
right.^[34] Therefore, the
interpretive approach taken should be one that advances, rather than limits, the
protection of that right.^[35]

23 Treaties should not be “interpreted in a
vacuum”^[36] and article 31 of
the Vienna Convention requires consideration of a number of sources that
will influence the interpretation of a treaty.

24 By virtue of
article 31(3)(a), subsequent agreements between parties regarding the
interpretation of the treaty are to be taken into account. In the present case,
the Court should take account of the Supplementary Convention in
interpreting the meaning of the Convention.

25 The meaning of slavery
in the Convention and the Supplementary Convention should also reflect the
jurisprudence of international tribunals, especially where these tribunals have
specifically considered the meaning of the terms “any or all of the powers
attaching to the right of ownership”. This is consistent with article
31(3)(c) of the Vienna Convention, which provides that the interpretation
of treaty provisions shall take into account “any relevant rules of
international law”, especially accepted norms of customary international
law.^[37]

26 The
“evolution and development of international law may exercise a decisive
influence on the meaning to be given to expressions incorporated in a
treaty”.^[38] As the
International Court of Justice explained in the South West Africa
Case,^[39] some concepts,
such as that of a “sacred trust” are by definition evolutionary:

That is why, viewing the institutions of 1919, the Court must take into
consideration the changes which have occurred in the supervening half-century,
and its interpretation cannot remain unaffected by the subsequent development of
law, through the Charter of the United Nations and by way of customary law.
Moreover, an international instrument has to be interpreted and applied with the
framework of the entire legal system prevailing at the time of
interpretation.^[40]

27 Similarly, the prohibition against slavery has evolved over time
and continues to evolve so that it now extends to a range of more contemporary
practices. Jurisprudence of international tribunals, such as the International
Criminal Tribunal for the Former Yugoslavia (“ICTY”), which
has considered the meaning of slavery and, in particular the indicia of the
conditions that result from the exercise over a person of “any or all of
the powers attaching to the right of ownership,” will assist in
ascertaining the meaning of slavery in the Convention and the Supplementary
Convention.²⁰

28 The Full Federal Court in Australia and the Supreme Court of Canada
have both relied on the jurisprudence of international tribunals, including the
ICTY, in determining the content of international customary law for the purpose
of interpreting statutory references to crimes against
humanity.^[41] This approach has been
taken in circumstances where the developments in customary international law
have occurred after the conclusion of the treaties the subject of the statutes
under consideration. As the Full Federal Court recognised, “the rules of
international law are dynamic ...
.”^[42] In Mugesera v Canada, the Supreme Court of Canada noted:

Genocide is a crime originating in international law. International law is
thus called upon to play a crucial role as an aid in interpreting domestic law,
particularly as regards the elements of the crime of incitement to
genocide.  Section 318(1) of the Criminal Code incorporates, almost word
for word, the definition of genocide found in art. II of the Genocide Convention
...

In addition to treaty obligations, the legal principles underlying the
Genocide Convention are recognized as part of customary international law ...
The importance of interpreting domestic law in a manner that accords with the
principles of customary international law and with Canada’s treaty
obligations was emphasized in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, at paras. 69-71.  In this context,
international sources like the recent jurisprudence of international criminal
courts are highly relevant to the
analysis.^[43]

29 In accordance with Article 32 of the Vienna Convention, the
Court can also have regard to preparatory work in relation to
conventions,^[44] either to confirm
the meaning of the provisions of the treaty or to help establish the meaning of
an ambiguous provision.

B. THE MEANING OF SLAVERY AT INTERNATIONAL LAW  

30 The
interpretive approach outlined above means that, in determining the meaning of
the term slavery within the context of contemporary international law, a court
should consider not only the forms of conduct that had already been practised in
1926 and were within the contemplation of the drafters of the Convention. It
should also consider forms of conduct that had not been anticipated in 1926, so
long as those latter forms of conduct share the essential characteristics of the
conduct that was the subject of condemnation by the international
community.

31 This approach is consistent with the provisions of the
Convention and the Supplementary Convention and accords with their objects,
namely to prohibit slavery in all its forms. Article 1(1) of the Convention
provides that,

Slavery is the status or condition of a person over whom any or all of the
powers attaching to the right of ownership are exercised.

32 This definition does not confine the concept of slavery to the
exercise of the right of ownership. Instead, the Convention employs the broader
formulation of “any or all of the powers attaching to the right of
ownership” which recognises that the exercise of any one of these powers
by one person over another is inherently irreconcilable with the freedom of the
person who is subject to the power. In this way, slavery is defined with
sufficient flexibility to enable States to give effect to Article 2(b) which
requires states “to bring about, progressively and as soon as possible,
the complete abolition of slavery in all its forms.”

33 A
recognition that the definition of slavery in the Convention is capable of
extending beyond “situations akin to chattel
slavery”^[45] accords with the
provisions of the Supplementary
Convention.^[46] In addition to
Article 7(a) of the Supplementary Convention, which provides that the
meaning of slavery is defined in the Convention, article 1 of the Supplementary
Convention defines four servile statuses (debt bondage, serfdom, servile
marriage and child servitude) and requires States Parties to take all
practicable and necessary legislative and other measures to bring about

progressively and as soon as possible the complete abolition or abandonment
of [these practices], where they still exist and whether or not they are
covered by the definition of slavery contained in article 1 of the Slavery
Convention signed at Geneva on 25 September 1926: (emphasis added).

34 The words “whether or not they are covered by the
definition of slavery” indicate that it is possible for practices such as
debt bondage to also constitute slavery if the practice in question involves the
exercise of a power attaching to a right of ownership over a
person.

35 An analysis of the travaux préparatoires (“Travaux”) confirms that the definition of slavery in
the Convention and the Supplementary Convention is capable of extending beyond
chattel slavery to encompass contemporary forms of slavery and to capture a
range of situations where a power attaching to the right of ownership is
exercised over a person.^[47]

36 Significantly neither the Convention nor the Supplementary
Convention defines slavery directly by use of the concept “the right of
ownership”. Instead, as Allain has observed, Article 1(1) of the
Convention:

does not speak of a ‘right of ownership’ of one over another, but
the ‘powers’ attached to such a right of ownership. The travaux
préparatoires of the 1926 League of Nations also establish what is not slavery, by indicating that States were unwilling to accept that
conditions analogous to slavery (re: ‘domestic slavery and similar
conditions’) were to be subsumed in the definition found in Article 1,
where there were no powers attached to the right of ownership
present.^[48]

37 Therefore,
contrary to the submissions of the Respondent at [13]–[15] and consistent
with the Travaux, the definition of slavery in the Convention and the
Supplementary Convention is capable of capturing instances of debt bondage in
circumstances where there is also the exercise of a power attaching to the right
of ownership. As Allain has observed, “to exercise the right of ownership
over an individual is fundamentally different than exercising powers attached to
the right of ownership”.^[49]

C. THE INDICIA OF SLAVERY: CHARACTERISATION OF “THE EXERCISE OF ALL
OR ANY OF THE POWERS OF OWNERSHIP”

38 The Travaux of
the Convention do not precisely identify the content of “any or all of the
powers attaching to the rights of
ownership”.^[50] An analysis of
the Travaux suggests that the words “condition or status of
slavery” distinguish between de jure slavery (where a
person’s status at law is as a slave) and de facto slavery
(where, as a matter of fact, the person is in the condition of a
slave).^[51] In the contemporary
Australian context, a person cannot have the status of a slave at law. As the
ICTY stated “... the law does not know of a ‘right of ownership over
a person’”.^[52]

39 The most authoritative consideration of the meaning of the words
“any or all of the powers attaching to the right of ownership” is
the decision of the ICTY in Kunarac.^[53] In this case,
the ICTY was called upon to determine whether certain acts of the three accused
constituted enslavement “as a crime against humanity and, in particular,
the customary international law content of this offence” at the time of
the Indictment in 1992.^[54] In its
consideration of the charges, the ICTY commenced by noting that enslavement was
not defined in the Statute of the International Tribunal for the Former
Yugoslavia^[55] and it was
therefore necessary to “look to various sources that deal with the same or
similar subject matter, including international humanitarian law and human
rights law”.^[56] After
referring to the Convention, the ICTY noted that the “customary
international law status ... is evinced by the almost universal acceptance of
that Convention and the central role that the definition of slavery ... has come
to play in subsequent international developments in this
field”.^[57] The ICTY then
noted that the Supplementary Convention “augments” the
Convention.^[58]

40 The Trial Chamber concluded that, at the time of the indictment,
enslavement as a crime against humanity in customary international law consisted
of “the exercise of any or all of the powers attaching to the right of
ownership over a person”.^[59] The Trial Chamber held that the actus reus of the violation is the
exercise of any or all of the powers attaching to the right of ownership over a
person. The mens rea of the violation consists in the intentional
exercise of such powers.^[60] This
view was expressly approved by the Appeals Chamber of the ICTY which stated:

[T]he Appeals Chamber concurs with the Trial Chamber that the required mens
rea consists of the intentional exercise of a power attaching to the right of
ownership.^[61]

41 Contrary
to the Respondent’s submissions at [26], the Appeals Chamber also accepted
that the concept of slavery had evolved beyond chattel slavery:

the chief thesis of the Trial Chamber that the traditional concept of
slavery, as defined in the 1926 Slavery Convention and often referred to as
“chattel slavery”, has evolved to encompass various contemporary
forms of slavery, which are also based on the exercise of any of or all of
the powers attaching to the right of ownership. In the case of these
various 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. The Appeals Chamber
considers that, at the time relevant to the alleged crimes, these contemporary
forms of slavery formed part of enslavement as a crime against humanity under
customary international law.^[62]

42 The Appeals Chamber also stated:

... 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. ... [T]he
question whether a particular phenomenon is a form of enslavement will depend on
the operation of the factors or indicia of enslavement identified by the Trial
Chamber. These factors include the “control of someone’s movement,
control of physical environment, psychological control, measures taken to
prevent or deter escape, force, threat of force or coercion, duration, assertion
of exclusivity, subjection to cruel treatment and abuse, control of sexuality
and forced labour”. Consequently, it is not possible exhaustively to
enumerate all of the contemporary forms of slavery which are comprehended in the
expansion of the original idea; this Judgement is limited to the case in
hand.^[63]

43 HREOC submits
that the characterisation of slavery by the ICTY should be preferred to that of
the European Court of Human Rights in Siliadin v France (“Siliadin”).^[64] Siliadin wrongly imposes a requirement that the applicant show that “a
genuine right of legal
ownership”^[65] was exercised
over her and that she was “reduced to the status of an
object”,^[66] instead of only
requiring the applicant to demonstrate that any or all of the powers attaching
to a right of ownership were exercised over
her.^[67] As Allain has observed,
this is a “truly narrow interpretation of the provisions of Article 1(a)
of the 1926 Convention [which] does not reflect a consideration of the travaux
préparatoires”.^[68]

44 The
approach adopted by the ICTY is consistent with the contemporary understanding
of slavery. In a 1998 report to the UN Commission on Human Rights, the Special
Rapporteur on Contemporary Forms of
Slavery^[69] described some of those
indicia (after referring to the Convention definition) as follows:

[W]hile slavery requires the treatment of a person as chattel, the fact that
a person was not bought, sold or traded does not in any way defeat a claim of
slavery. Implicit in the definition of slavery are notions concerning
limitations on autonomy, freedom of movement and power to decide matters
relating to one's sexual activity. The mere ability to extricate oneself at
substantial risk of personal harm from a condition of slavery should not be
interpreted as nullifying a claim of
slavery.^[70]

45 The Office of the UN High Commissioner for Human Rights has also
examined contemporary forms of
slavery.^[71]

Arguably, the use of the phrase ‘any or all of the powers attaching to
the right of ownership’ [in the 1926 Convention] ... was intended to give
a more expansive and comprehensive definition of slavery that would include not
just the forms of slavery involved in the African slave trade but also practices
of a similar nature and effect.

...

In the modern context, the circumstances of the enslaved person are crucial
to identifying what practices constitute slavery, including: (i) the degree of
restriction of the individual’s inherent right to freedom of movement;
(ii) the degree of control of the individual’s personal belongings; and
(iii) the existence of informed consent and a full understanding of the nature
of the relationship between the parties.

... [t]hese elements of control and ownership, often accompanied by the
threat of violence, are central to identifying the existence of slavery.
...^[72]

46 Drawing from these various discussions (including the jurisprudence
of the ICTY),^[73] it is possible to
identify a (non-exhaustive) list of the factors that might indicate that a power
attaching to a right of ownership has been exercised as follows:

(a) The partial or total destruction of the juridical personality of the
victim.^[74]

(b) Some restriction or control of an individual’s autonomy, freedom of
choice or freedom of
movement.^[75]

(c) The control of matters relating to an individual’s sexual
activity.^[76]

(d) The psychological control or oppression of
individual.^[77]

(e) The control or partial control of an individual’s personal
belongings.^[78]

(f) The measures taken to prevent or deter a person from
escape.^[79]

(h) The absence of informed consent or the fact that consent has been
rendered irrelevant by the use of force or coercion, the use of deception or
false promises or the abuse of power in the context of the relationship where
the individual over whom the power is exercised is in a position of
vulnerability.^[80]

(i) The threat or use of force or other forms of
coercion.^[81]

(j) The use of, or the fear of the use of, violence including, for example,
the cruel treatment or abuse of an
individual.^[82]

(k) The quality of the relationship between the accused and the person over
whom the powers are exercised, including any abuse of power, the person’s
vulnerability, the person’s socio-economic situation and the duration of
the relationship.^[83]

(m) The exaction of forced or compulsory labour or service, often without
remuneration and often, though not necessarily, involving physical hardship,
sex, prostitution and human
trafficking.^[84]

47 Ultimately,
the question of whether the actions of the accused amount to slavery will be a
question of fact and degree and will need to be evaluated on a case by case
basis.^[85] Consideration of the
factors identified above will allow for a determination of whether a person has
been reduced to a condition of slavery through the exercise of any or all of the
powers attaching to the right of ownership, as distinct from the exercise of
some other power, such as the legitimate rights of an employer.

PART V:
THE ELEMENTS OF THE OFFENCE OF SLAVERY IN THE CRIMINAL CODE

A. THE
INTERPRETIVE APPROACH

48 Sections 270.1 and s270.3(1)(a) give
effect to Australia’s international human rights treaty obligations. In
the absence of a clear contrary legislative intention, they should therefore be
interpreted so as to accord with their purpose of responding effectively to the
gross violation of human rights and dignity that slavery represents. This approach is consistent with the principle that in “construing
legislation designed to protect basic human rights and dignity, courts
‘have a special responsibility to take account of and give effect to [its]
purpose’”.^[86]

49 Interpreting
the meaning of slavery in the Code consistently with the content of
Australia’s international treaty obligations requires that the meaning not
be frozen in time.

50 To the extent that there is any controversy
about whether the proscription of slavery by the Convention and the
Supplementary Convention extended beyond chattel slavery, the Explanatory
Memorandum to the Criminal Code Amendment (Slavery and Sexual Servitude) Bill
1999 makes it clear that the definition of slavery in s270.1 of the Code was intended to reflect the international community’s desire to
mandate international action against a range of practices more extensive than
chattel slavery.^[87]

51 HREOC outlines below an approach that articulates the substantive
content of the offence by reference to Australia’s international
obligations in relation to slavery. Significantly, the adoption of such an
approach would not lead to any lack of clarity in defining the content of the
relevant offence. ^[88] Indeed HREOC
submits it would have the opposite effect. The ICCPR guarantees the right to a
fair trial (Article 14). It is a fundamental principle of law, consistent with
the right to a fair trial, that an accused person is entitled to know with
sufficient precision the charge against him or her.

B. THE
APPROACH OF THE COURT BELOW

52 HREOC submits that the Court of
Appeal erred in its identification of the elements of the offence of slavery in
s270.3(1)(a), particularly by its reference to the need to find that the victim
was “reduced to the status of mere property”. The Court set out the
elements of the offence of possession as follows:

First, the worker must have been reduced to the condition that would
constitute her a slave, as defined in the Act. The jury must be satisfied that
she had had powers exercised over her as though she was mere property, with the
result that she had been reduced to the status of mere property, a thing, over
whom powers attaching to the right of ownership could be exercised.

Secondly, the accused must have known that the worker had been reduced to a
condition where she was no more than property, a thing, over whom persons could
exercise powers as though they owned her.

Thirdly, the accused must have intentionally possessed the worker, that is,
must have intentionally held her in her custody or under her physical control.

Fourthly, the accused must have possessed the worker in the intentional
exercise of what constitutes a power attaching to a right of ownership, namely,
the power of possession. For that to be the case the accused must be shown to
have regarded the worker as though she was mere property, a thing, thereby
intending to deal with her not as a human being who had free will and a right to
liberty, but as though she was mere property. However harsh or oppressive her
conduct was towards the worker it would not be sufficient for a conviction if,
rather than having possessed the worker with the knowledge, intention, or in the
belief that she was dealing with her as though she was mere property, the
accused possessed her in the knowledge or belief that she was exercising some
different right or entitlement to do so, falling short of what would amount to
ownership, such as that of an employer, contractor, or manager. ^[89]   

   

53 HREOC submits that the Court of Appeal took
an unduly narrow approach to the meaning of the term slavery, an approach bound
to the historical notion of chattel slavery rather than the contemporary
understanding of slavery in international law. This is evident from the Court
of Appeal’s references to the terms “mere property”, “a
thing”, “no more than
property”^[90] which do not
appear in s270.1 and s270.3 of the Criminal Code. This usage departs from the
statutory definition, and thus does not ask the relevant question which is
“did the accused person exercise over the victim any of the powers
attaching to the right of ownership”?

54 In particular, the
expression “reduced to the status of mere property” appears to
require that a victim have all the powers attaching to the right of ownership
exercised over him or her. This is contrary to the wording of the statute and
contrary to the understanding of slavery in international
law.^[91]

55 As discussed
above at [46], the focus of the offence of slavery in international law (most
clearly evidenced in the ICTY’s decisions in Kunarac) is on the
same elements as appear in the definition in s270.1, ie, the exercise of any or
all of the powers of ownership. In every case, it will ultimately be a question
of fact and degree as to whether the acts the subject of the prosecution can be
so characterised.

56 This appears to have been recognised elsewhere
in the reasoning of Eames JA:

The legislation does not require proof of actual ownership of a slave
(ownership of a person having been abolished in the 19^th century),
nor does it require that somebody be identified as taking a role that would have
constituted him or her an owner had slavery not been abolished. Neither the
definition nor the offence provisions in Chapter 8 speak of the
“owner” of a slave, merely of persons exercising one or more of the
powers “attaching to the right of ownership”. Thus, the concept of
ownership remains central to the offences, but by way of identification of
powers that attach to the right of
ownership.^[92]

57 This paragraph more closely reflects the proper interpretation of
slavery for which HREOC contends. This is not, however, reflected in the
central passage of the Court’s judgment concerning the elements of the
offences, cited above.

58 Similarly, HREOC submits that Eames JA erred in the suggested
answers to the jury questions (at [145]) in which his Honour stated that the
Crown must prove that the victim “had no say in how she was treated”
and “had no rights or free will”. This appears to require a total
destruction of the “juridical personality” of a victim, in conflict
with the recognition in international law that a partial destruction may be
sufficient to result in a person being a slave.

C. HREOC’S VIEW OF THE PROPER APPROACH TO THE OFFENCES

59 HREOC contends that the submissions of the appellant to this Court
correctly identify the two central matters to be proven (see [24]-[27] of the
Appellant’s submissions):

1. That the Accused exercised over the Victim a power attaching to a right of
ownership.

2. That the Accused intended to exercise over the Victim a power attaching to
a right of ownership.

60 Determining whether an exercise of power is
the exercise of a power attaching to the right of ownership will be a matter of
fact and degree in each case. A jury should consider a range of factors that
will assist it to determine the quality of the power(s) exercised over a person.

61 To ensure consistency with the international human rights
obligations to which the Code seeks to give effect, those factors should
reflect the understanding of slavery at international law and will include,
depending on the circumstances of the particular case, those set out at [46] of
these submissions.

62 Taking this approach will achieve clarity in
the definition of the offence while ensuring that contemporary forms of slavery
are effectively proscribed consistently with Australia’s international
human rights obligations.

5^th May 2008

---

^[1] Grounds 1 and 2 of the Notice
of Cross Appeal filed on 14^th January 2008; 2AB 385.

^[2] Ground 1 of the Notice of
Appeal filed on 4^th January 2008 (2AB 381); Grounds 1 and 2 of the
Notice of Cross Appeal filed 14^th January 2008 (2AB
385).

^[3] For the purposes of Part
II Division 2 of the HREOC Act, the expression “human rights” is
defined in s3(1) to mean, relevantly, the rights and freedoms recognised in the International Covenant on Civil and Political Rights (“ICCPR”): Opened for signature 16 December 1966, [1980] ATS
23 (entered into force 23 March 1976). Australia ratified the ICCPR on 13 August
1980.

^[4] The right to be free
from slavery is recognised as a peremptory norm of international law: see the
authorities cited in note19; see also article 8(1) of the ICCPR and article 4(1)
of the Universal Declaration of Human Rights (“UDHR”). Australia is also obliged to take
action to abolish slavery to give effect to its obligations as a signatory to
the 1926 International Convention to Suppress the Slave Trade and Slavery, and the 1956 Supplementary Convention on the Abolition of Slavery, the
Slave Trade and Institutions and Practices Similar to Slavery.

^[5] Koowarta v
Bjelke-Petersen (1982) 153 CLR 168, 264-265 (Brennan J); Gerhardy v
Brown (1985) 159 CLR 70, 124 (Brennan J); Applicant A v Minister for
Immigration and Ethnic Affairs (1997) 190 CLR 225 230-231 (Brennan CJ),
239-240 (Dawson J), 250-251 (McHugh J), 294 (Gummow J); Qantas Airways
Limited v Christie (1998) 193 CLR 280, 303 (McHugh J), 332-3 (Kirby J).

^[6] Kartinyeri v
Commonwealth (“Kartinyeri”) (1998) 195 CLR 337,
384 (Gummow and Hayne JJ).

^[7] United States Tobacco Co v
Minister for Consumer Affairs (1988) 20 FCR 520, 534.

^[8] The intervention function
provided under s 11(1)(o) of the HREOC Act is part of a suite of statutory
functions set out in s 11 which recognise HREOC’s special role in
providing guidance on the interpretation and application of human rights as
defined by s3 of the HREOC Act.

^[9] Levy v State of Victoria (1997) 189 CLR 579, 603-604 (Brennan CJ).

^[10] Australian Railways Union
v Victorian Railways Commission (1930) 44 CLR 319, 331 (Dixon J).

^[11] Kruger v Commonwealth of
Australia (1996) 3 Leg Rep 14 (Brennan CJ).

^[12] Opened for signature
10^th May 1969, [1974] ATS 2 (entered into force 27^th January 1980), and ratified by Australia on 13t^h June 1974.

^[13] The Model Criminal Code
Officers Committee noted (citing Smith v Gould (1706) 2 Salk 666; 91 ER
567) that “a chattel slave was like any other piece of property except the
owner was not allowed to destroy it”: Report of the Model Criminal Code
Officers Committee (MCCOC) Standing Committee of Attorneys-General, Chapter
9, Offences Against Humanity: Slavery (“the MCCOC
Report”), 1998, 1. See also Australian Law Reform Commission,
Report No. 48, (1990), Criminal Admiralty Jurisdiction and Prize, 86
[111, footnote 79].

^[14] Opened
for signature 25^th September 1926, [1927] ATS
11 (entered into force 18 ^th June 1927). Australia ratified the
Convention on 18 ^th June 1927 and the 1953 Protocol
amending the Convention to Suppress the Slave Trade and Slavery of 25 September
1926 on 9 December 1953. The amending Protocol transferred the functions of
the League of Nations to the United Nations. It did not change the substantive
provisions of the
Convention.

^[15] Opened for
signature 7 ^th September 1956, [1958] ATS 3 (entered into
force 6 ^th January 1958). Australia ratified the Supplementary
Convention on 6 ^th January 1958.

^[16] Australia ratified the ICCPR
on 13 August 1980.

^[17]On
international customary law, see Polyukhovich v The Commonwealth of
Australia (1991) 172 CLR 501, 559-560 (Brennan J), 667 (Toohey J); and see
generally Ian Brownlie, Principles of Public International
Law,6^th edition, Oxford University Press, 4-12.

^[18] Considered recently by the
United Nations, Security Council, International Criminal Tribunal for the former
Yugoslavia (“ICTY”) in Prosecutor v Kunarac, Kovac and
Vukovic, ICTY, IT-96-23-T-II & IT-96-23/1-T-II, 22 February 2001
(Trial Chamber) (“the Kunarac Trial”), [515] –
[543], aff’d IT-96-23-A & IT-96-23/1-A, 12 June 2002 (Appeal
Chamber) (“the Kunarac Appeal”), [106] – [124].
For a discussion of this decision, see Valerie Oosterveld, “Sexual Slavery
and the International Criminal Court: Advancing International Law” (2004)
25 Michigan Journal of International Law 605, 647-650.

^[19] Barcelona Traction,
Light and Power Co, Ltd (Belgium v Spain) (Second Phase) Judgment of 5 February
1971, ICJ Rep 1970, p 32 [33-34]. See also Restatement (Third) of the
Foreign Relations Law of the United States, § 702 (1987) and Robert
Jennings and Arthur Watts (eds), Oppenheim’s International Law Volume 1 (9^th ed, 1992),
5.

^[20] Kartinyeri, 384
(Gummow and Hayne JJ).

^[21] Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR 1, 38 (Brennan, Deane and Dawson
JJ).

^[22] (1997) 190 CLR
225.

^[23] Ibid, 230-231 (Brennan
J).

^[24] HREOC does not make
submissions on the correct interpretation and application of Chapter 2 of the
Code.

^[25] That
this was the view taken by the Parliament when the slavery provisions were
included in the Code is clear from the extrinsic materials: see Criminal Code
Amendment (Slavery and Sexual Servitude) Bill 1999, Second Reading Speech, Senate Hansard, 24 March 1999, 3075, 3076 (“the second reading
speech”); Criminal Code Amendment (Slavery and Sexual Servitude)
Bill 1999, Revised Explanatory Memorandum, [18]-[20] (“the
explanatory memorandum”); see also the MCCOC Report, 7.

^[26] Morrison v Peacock (2002) 210 CLR 274, 279 [16] (Gleeson CJ, McHugh, Gummow, Kirby and Hayne
JJ).

^[27] Applicant A v
Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 240 (Dawson
J).

^[28] James Buchanan &
Co Ltd v Babco Forwarding & Shipping (UK) Ltd (“Buchanan v
Babco”)[1978] AC 141, 152 (Lord Wilberforce), cited with
approval in The Shipping Corporation of India Ltd v Gamlen Chemical Co. (A/Asia) Pty Ltd (1980) 147 CLR 142, 159 (Mason and Wilson JJ), Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 240 (Dawson J), Pilkington (Australia) Ltd v
Minister of State for Justice and Customs (2002) 127 FCR 92, 100
[26].

^[29] The Court of Appeal of
England and Wales has held that the “broad and generally acceptable
principles” referred to in Buchanan v Babco “are undoubtedly
enshrined in Articles 31 and 32” of the Vienna Convention: see CMA CGM SA. v Classica Shipping Co Ltd [2004] EWCA Civ 114, [2004] 1 All
ER (Comm) 865, [10] (Longmore LJ, Neuberger and Waller LJJ agreeing); see also Pilkington (Australia) Ltd v Minister of State for Justice and Customs (2002) 127 FCR 92, 100-101
[27].

^[30] See Tasmania v
Commonwealth (1983) 158 CLR 1, 93 (Gibbs CJ, referring to Fothergill v
Monarch Airlines Ltd [1981] AC 25); Applicant A v Minister for
Immigration and Ethnic Affairs (1997) 190 CLR 225, 277 footnote 189 (Gummow
J referring with approval to Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338).

^[31] Applicant A v
Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 251-252
(McHugh J), Minister of Foreign Affairs and Trade v Magno (1992) 37
FCR 298, 305 (Gummow J).

^[32] Applicant A v Minister
for Immigration and Ethnic Affairs (1997) 190 CLR 225, 230 (Brennan CJ
agreeing with McHugh J), 240 (Dawson J), 251-56 (McHugh J), 277 (Gummow J
agreeing with McHugh). See also Pilkington (Australia) Ltd v Minister of
State for Justice and Customs (2002) 127 FCR 92, 100
[26].

^[33] Applicant A v
Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 230 (Brennan
CJ).

^[34] Article 4(2) of the
ICCPR provides Article 8(1) (the right to be free from slavery) is a
non-derogable right.

^[35] See IW v City of Perth (1997) 191 CLR 1, 22-23 (Dawson and Gaudron JJ), and
see also the approach in Saadi v United Kingdom App No 13229/03 [2008]
ECHR 80, [62].

^[36] Al-Adsani
v The United Kingdom App No 35763/97 [2001 ECHR 761, [55]. This
approach to the interpretation of treaties was cited with approval by Lord
Bingham of Cornhill in A & Ors v Secretary of State for the Home
Department [2006] 2 AC 221, [29] and in R (on the application of
Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent) [2007] UKHL 58, [36].

^[37] United Nations
International Law Commission Report, A/61/10, 2006, chp. XII, 407, 415.

^[38] Sir Ian Sinclair, The
Vienna Convention on the Law of Treaties, 2nd ed, Manchester University
Press, 1984, 139 and see generally 139-140; see also United Nations
International Law Commission Report, A/61/10, 2006, chp. XII, 407, 415.

^[39] Legal Consequences for
the States of the Continued Presence of South Africa in Namibia (South West
Africa) not withstanding Security Council Resolution 276 (Advisory
Opinion) [1971] ICJ Rep
56.

^[40] Ibid, [53]. See also
United Nations International Law Commission Report, A/61/10, 2006, chp. XII,407
[251].

^[41] See SRYYY v
Minister for Immigration and Multicultural and Indigenous Affairs (“SRYYY”) (2005) 147 FCR 1; Mugesera v Canada
(Minister of Citizenship and Immigration) (“Mugesera”) [2005] 2 SCR
100.

^[42] SRYYY, [31],
referring to New South Wales v The Commonwealth (1975) 135 CLR 337, 466
(Mason J); see also United Nations International Law Commission Report,
A/61/10, 2006, chp. XII,
415.

^[43] Mugesera,
[82].

^[44] Great China Metal
Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161, 186 [70]-[71] McHugh J; AB v Registrar of Births,
Deaths and Marriages (2007) 162 FCR 528, 550 [80] and the authorities cited
therein.

^[45] See
Respondent’s Notice of Cross Appeal, 2AB 385.

^[46] Article 31(3)(a) of the Vienna Convention.

^[47] Jean Allain, The Slavery Conventions: The Travaux Preparatoires of the 1926
League of Nations Convention and the 1956 United Nations Convention, Martin
Nihjhoff Publishers, Boston, 2008, 9, 59-60,
67-68.

^[48] Ibid, 9.

^[49] Jean Allain, ‘The
Definition of Slavery in General International Law and the Crime of Enslavement
within the Rome Statute’, Guest Lecture Series of the Office of the
Prosecutor of the International Criminal Court, The Hague, 26 April 2007,
[45].

^[50] But cf United Nations,
Economic and Social Council, Slavery, the Slave Trade, and other forms of
Servitude (Report of the Secretary-General), UN Doc E/2357, 27 January 1953,
28 as cited in Jean Allain, The Slavery Conventions: The Travaux
Preparatoires of the 1926 League of Nations Convention and the 1956 United
Nations Convention, Martin Nihjhoff Publishers, Boston, 2008, 496-497 where
the UN Secretary-General attempted to characterise the powers attaching to the
right of ownership. See also Renee Colette Redman, “The League of Nations
and the Right to be Free from Enslavement: The First Human Right to be
Recognized as Customary International Law” (1994) 70 Chicago-Kent Law
Review 759. For some more contemporary discussions of the content of
the prohibition on slavery, see M Cherif Bassiouni, “Enslavement as an
International Crime” (1991) 23 New York University Journal of
International Law and Policy 445; Kevin Bales and Peter T Robbins
“‘No One Shall Be Held in Slavery or Servitude’: A Critical
Analysis of International Slavery Agreements and Concepts of Slavery”
(2001) 2 Human Rights Review 18 (Jan 2001); Valerie Oosterveld,
“Sexual Slavery and the International Criminal Court: Advancing
International Law” (2004) 25 Michigan Journal of International Law 605; A Yasmine Rassam, “International Law And Contemporary Forms Of
Slavery: An Economic And Social Rights-Based Approach” (2005) 23 Penn
St International Law Review 809.

^[51] Jean Allain, ‘The
Definition of Slavery in General International Law and the Crime of Enslavement
within the Rome Statute’, Guest Lecture Series of the Office of the
Prosecutor of the International Criminal Court, The Hague, 26 April 2007,
[20].

^[52] Kunarac
Appeal, [118].

^[53] Kunarac Appeal; Kunarac Trial. The expertise and authority of the
decisions of the ICTY in respect of international customary law was emphasised
by the Supreme Court of Canada in Mugesera, [126].

^[54] Kunarac Trial, [515].

^[55] Adopted by the
United Nations Security Council on 25 May 1993 by Resolution 827. Article 5 of
the Statute of the ICTY includes ‘enslavement’ among the list of
crimes against humanity over which the ICTY has
jurisdiction.

^[56] Kunarac
Trial, [518].

^[57] Kunarac Trial, [520]

^[58] Kunarac Trial, [520].

^[59] Kunarac Trial, [539]

^[60] Kunarac
Trial, [540].

^[61] Kunarac Appeal, [122] (footnotes
omitted).

^[62] Kunarac
Appeal, [117] (footnotes omitted and emphasis
added).

^[63] Kunarac
Appeal[118]-[119].

^[64] Siliadin v France App.no 73316/01, 26 July 2005 [2005] ECHR 545.

^[65] Siliadin [122].

^[66] Ibid.

^[67] See also Jean
Allain, “The Definition of Slavery in General International Law and the
Crime of Enslavement within the Rome Statute”, Guest Lecture Series of
the Office of the Prosecutor of the International Criminal Court, the Hague,
26 April 2007, [36]-[38].

^[68] Ibid, [37].

^[69] Contemporary
Forms of Slavery: Systematic rape, sexual slavery and slavery-like practices
during armed conflict, Final report submitted by Gay J McDougall, Special
Rapporteur, E/CN.4/Sub.2/1998/13 (1998) (“Contemporary Forms of
Slavery”).

^[70] Contemporary Forms of Slavery, [28]-[29] (citations omitted).

^[71] United Nations High
Commissioner for Human Rights, Abolishing Slavery and its Contemporary
Forms, (authors David Weissbrodt and Anti-Slavery International),
HR/PUB/02/4, 2003 (“Abolishing
Slavery”).

^[72] Abolishing Slavery, [19],
[21]-[22].

^[73] Note that
Australia has also become a signatory to the Statute of the International
Criminal Court (“The Rome Statute”), which proscribes
‘enslavement and sexual slavery’ and declares them to be crimes
against humanity and war crimes. Article 7(2)(c) defines
‘Enslavement’ as ‘the 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. Australia ratified the Rome Statute on 1^st July 2002 (and
see also International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth)).

^[74] Kunarac
Appeal, [117].

^[75] Kunarac Appeal [119], Kunarac Trial [542]-[543]; Contemporary
Forms of Slavery, [28]-[29]; Abolishing Slavery, [19],
[21]-[22].

^[76] Kunarac Appeal [119]; Kunarac Trial [543]; Contemporary Forms of Slavery, [28]-[29].

^[77]Kunarac
Appeal [119]; Kunarac Trial [543].

^[78] Kunarac Appeal [119]; Kunarac Trial [542]-[543], Abolishing Slavery [22].

^[79] Kunarac Appeal, [119]; Kunarac Trial [543]; Abolishing Slavery, [19],
[21]-[22].

^[80] Kunarac
Appeal, [120], Abolishing Slavery, [21].

^[81] Kunarac
Appeal, [119].

^[82] Kunarac Trial,
[542]-[543].

^[83] Kunarac
Appeal, [121]; Kunarac Trial, [542].

^[84] Kunarac Appeal, [119]. Kunarac Trial, [542].

^[85] Kunarac Appeal, [119]. The Appeal Chamber noted “it is not possible to exhaustively
enumerate all of the contemporary forms of slavery which are expanded in the
original idea”.

^[86] IW
v City of Perth (1997) 191 CLR 1, 22-23 (Dawson and Gaudron JJ), referring
to Waters v Public Transport Corporation (1991) 173 CLR 349, 359, (Mason
CJ and Gaudron J; Deane J agreeing). See also Acts Interpretation Act
1901 (Cth), s15AA.

^[87] Explanatory Memorandum, [18] – [19]; Second Reading Speech, 3076; MCCOC
Report, 7; see also Acts Interpretation Act 1901 (Cth), s15AB;

^[88] One of the (unsuccessful)
grounds of appeal in the court below was that the trial miscarried due to the
inherent uncertainty in the meaning of the expression “any or all of the
powers attaching to the right of ownership”: see 2AB 260.

^[89] R v Tang (2007) 16
VR 454 (“R v Tang”) [77]; 2AB 326
(footnotes omitted).

^[90] R v
Tang, [77]; 2AB 326. See also [84], [113], [145]; 2AB 328-329, 338-339,
350.

^[91] Note that Australia has
also become a signatory to the Statute of the International Criminal
Court (“The Rome Statute”),which proscribes
‘enslavement and sexual slavery’ and declares them to be crimes
against humanity and war crimes. Article 7(2)(c) defines
‘Enslavement’ as ‘the 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. Australia ratified the Rome Statute on 1 July 2002 (and see also International Criminal Court Act 2002 (Cth) and the International
Criminal Court (Consequential Amendments) Act 2002 (Cth)).

^[92] R v Tang [49]; 2AB 317.