Law School

Constitutional law

R v Tang [2008] HCA 39 (28 August 2008)

High Court of Australia: Gleeson CJ,  Kirby, Hayne, Gummow, Heydon, Crennan and Kiefel JJ
Keywords: external affairs power; human rights; sexual slavery

Summary

This case came before the High Court as an appeal against the decision by the Victorian Court of Appeal to overturn convictions and order a new trial in a case of sexual slavery.  The respondent was a brothel owner and the charges were brought in respect of five Thai women who were illegal immigrants and worked as prostitutes in the respondent’s brothel.  The respondent was convicted in the Victorian County Court and given a lengthy sentence on five counts of intentionally possessing a slave and five counts of exercising power over a slave consistent with the rights of ownership (that is, the right to ‘use’), in violation of s 270(3) of the Criminal Code (Cth).  The Court of Appeal ordered a new trial on all counts due to the inadequacy of the trial judge’s directions to the jury on the issue of ‘intent’.

Feminist judgment

The High Court allowed the appeal and found that the external affairs power of the Commonwealth was enlivened by Australia’s obligations under the UN International Convention to Suppress the Slave Trade and Slavery 1926 and that s 270(3) of the Criminal Code (Cth) was reasonably appropriate and adapted to implementing the aims of the Convention.  The trial judge’s direction on ‘intent’ was held to be appropriate.

Monis v The Queen [2013] HCA 4 (27 February 2013)

High Court of Australia: Crennan, Kiefel and Bell JJ (dissenting joint judgment)
Keywords: implied freedom of political communication; offensive material; postal system

Summary

Mr Man Haron Monis and Mrs Amirah Droudis were charged under s 471.12 of the Criminal Code (Cth) with using and aiding and abetting the use of the postal service to send offensive material to relatives of Australian defence force personnel and officials killed in Afghanistan and Indonesia.  The material in question was letters that were sympathetic to the relatives of the deceased but were also critical of the involvement of Australian soldiers in Afghanistan and contained offensive assertions to that effect.  The appellants submitted that s 471.12 violated the implied freedom of political communication in the Constitution.  The NSW Court of Appeal found that the section to be valid.  The High Court split 3:3 on gender lines, such that the NSWCA decision was affirmed.

Feminist judgment

Crennan, Kiefel and Bell JJ found s 471.12 to be valid on the basis that the right to freedom of political communication is not ‘absolute’. They regarded the offence of using the postal system to send highly offensive material as 'proportionate' and so not an inappropriate restriction on freedom of speech, noting that the nature of postal communications is that they are sent into people’s private environments. By contrast, the three male judges would have held the section to be invalid, taking an absolutist approach and not differentiating between public and private.

Further references

  • Spencer Zifcak, ‘Justices split on gender lines over tenor of cleric's letters’, The Australian (15 March 2013).
  • Helen Irving’s blog, A Woman’s Constitution