Geraldo Magno v Gareth Evans, Minister for Foreign Affairs and Trade of the Commonwealth of Australia

[1992] FCA 15

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JUDGMENT No. ...	!..?. .... %..-?L	,.	.	.
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IN THE FEDERAL COURT

QF AUSTRALIA

No. VG 9 of 1992

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN:	GERALDO MAGNO
Firstnamed Applicant

INES ALMEIDA

Secondnamed Applicant

-. AND- GARETH EVANS. MINISTER FOR
FOREIGN AFFAIRS AND TRADE
OF THE COMMONWEALTH
OF AUSTRALIA

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Firstnamed Respondent	1;
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AND:  COMMISSIONER OF L

AUSTRALIAN FEDERAL POLICE

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Secondnamed Respondent	?...	l"'.
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COMMONWEALTH OF AUSTRALIA	l.,'?
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Thirdnamed Respondent	t;:	. '	i
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injunctions restraining each of the respondents from:

EX TEMPORE REASONS FOR JUDGMENT	1 :;
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CORAM:	Ryan J	h :.
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DATE:	24 January 1992	; : F
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RYAN J: By motion on notice dated 20 January 1992, the applicants seek interlocutory :k L:. .
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"(a) Acting upon or giving any effect to the Certificate issued by the First named Respondent on or about 17 January 1992 pursuant to the Diolomatic Privileees and Immunities Reeulations (Amendment) 1992; and

(b) Removing or taking any steps to cause the removal of any of the 102 crosses

presently placed on the land opposite or adjacent to the premises known as the

Embassy of the Republic of Indonesia situated in the Australian Capital Territory."

The promulgation of the Diolomatic Privileees and Immunities Reeulations (Amendment)

m 2 ("the regulations") was apparently prompted by actions which have been taken by the

applicants and persons connected with them in the light of the events which occurred at Dili

in East Timor on 12 November 1991 and which have come to be known as "the Dili

massacre".	I t would be inappropriate to attempt to make detailed findings as to the facts
comprising those events but it seems to be common ground that Indonesian security or	P
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military personnel fired on a large body of unarmed East Timorese citizens who were taking part in a demonstration in the course of, or immediately after a funeral service for an East
Timorese political activist. At least 50 East Timorese, mainly students and other young	/:
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people, were killed and many others were wounded.	1
The events to which I have referred attracted widespread international condemnation
including protests at a political and diplomatic level by governments of a number of sovereign

states, among them Australia. Protests have also been made by groups within Australia

sympathetic to the East Timorese people. Some of those protests have had a direct physical relation to the Indonesian Embassy in Darwin Avenue, Yarralumla, in the Australian Capital

Territory. That action has been described as follows in an affidavit filed in these proceedings

and sworn by Kevin James Boreham, a senior officer in the Department of Foreign Affairs

and Trade:

"... the planting of approximately 102 wooden crosses (approximately two to three feet

high) in the grass nature strip for approximately 70 metres along the Embassy's front
fence on its Darwin Avenue frontage, the placing of three larger wooden crosses
approximately four to five feet high on the nature strip outside the gate of the

Embassy, the draping of banners condemning Indonesian actions over the front hedge of the Embassy, the display of similar banners on the aforementioned nature strip, the establishment of a demountable hut with a sign proclaiming i t to be the "East Timor

Embassy" near the Embassy's gate and the placement of Fretilin flags close to the
entrance to the Embassy. A group of demonstrators set up a vigil and picket of the

Embassy."

Conflicting evidence has been given of the number of crosses erected on the nature strip.

However, it has been said on behalf of the applicants to be 124 and the court has been told

that that number was selected because the applicants and their associates believe i t to
approximate the number of East Timorese citizens who died as. a result of the events of 12

November 1991. It seems to be common ground that most of the crosses are painted white

and many have been daubed with red paint to symbolise blood.

After negotiations between the first respondent Minister and representatives of those	.
responsible for the presence of the banners, flag and hut described by Mr Boreham, that
material, on 17 January 1992, was removed from the nature strip immediately in front of the ---	:
Embassy and relocated on the other side of Darwin Street on a nature strip in front of a block
of land allocated for the erection of a Nigerian Embassy.
However, the erection of the crosses has been the work of another group, described as the

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East Timorese Community in New South Wales, of which the applicants are members.	That	F;	.*.
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group has declined to remove the crosses to the alternative location or anywhere else. The	I: ,.
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nature strip on which the crosses stand is a grassed strip about 70 metres long between the	v:?
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footpath and kerb to Darwin Street and a low hedge and iron picket fence which marks the
front boundary of the Embassy premises.
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Terrence Connolly, the Attorney-General, Minister for Housing and Community Services and	g;?
Minister for Urban Services within the government of the Australian Capital Territory, has
sworn on information and belief that:
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"... the crosses situate outside the Embassy of the Republic of Indonesia at Yarralumla

are standing on Territory land under the administration of the Government of the

Australian Capital Territory pursuant to the Australian Capital Territory (Planning and

Land Management) Act 1988. I am further informed and verily believe that the
national lands granted by special lease to the Embassy of the Republic of Indonesia

being Block 9, Section 44, Yarralumla, cease at or about the embassy fence fine and do	I
not extend to the grassed area where I have observed the crosses standing."	I

Mr Connolly has further sworn that:

". .for so long as the demonstration remains peaceful the Australian Capital Territory

Government will take no action to cause the aforesaid crosses to be removed."

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On 15 January 1992, the regulations were promulgated in reliance on the power conferred by	/I
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s. 15 of the Diolomatic Privileoes and Immunities Act 1967 ("the Act").	Section 15 of the Act	;	1
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provides that the Governor-General may make regulations necessary or convenient to be

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prescribed for the carrying out or giving of effect to the Act.	The regulations insert in	I .
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regulation 2 of the principal regulations being the Diolomatic Privileges and Immunity	.	.
Regulations, the following definitions:	.,,

"'Prescribed land or premises' means land or premises belonging to the Commonwealth

or a State or Territory to which the public has access;

'Prescribed object' means an object or a structure that is on prescribed land or

premises within 100 metres of the premises of a mission or of the residence of the

head or another diplomatic agent of a mission.'

The regulations then go on to insert a new reg. 5A in these terms:

"(1) The Minister may certify, in the form set out in the Schedule, that in his or her

opinion removal of a prescribed object described in the certificate from prescribed
land or premises described in the certificate would be an appropriate step within the

meaning of article 22 or 29 of the Convention.

(2) In deciding whether to issue a certificate, the matters to which the Minister is to

have regard include:

{a) the nature of the prescribed object;

(b) the proximity of the object to the premises of a mission or to the residence

of the head or another diplomatic agent of a mission;

(c) the period for which the object has been on the prescribed land or

premises.

(3) A certificate takes effect when the certificate is issued unless a later time or day

is specified in the certificate.

(4) A certificate has effect for a period of 30 days from the day when the certificate

was issued.

(5) Sub-regulation (4) does not prevent the issue of further certificates in respect of

matters stated in a certificate.

(6) The Minister is to cause a copy of a certificate to be laid before each House of

the Parliament within 15 sitting days of that House after the day when the certificate

is issued."

A new reg. 5B authorises a member or special member of the Australian Federal Police, a

member of the police force of a State or Territory, or a member of the Australian Protective

Service, to remove a prescribed object described in a certificate issued under reg. SA from

prescribed land or premises described in the certificate. Regulation 5B also provides for the

person apparently in control of the object or who placed the object on the land or premises to
be given a reasonable opportunity to remove the object from the laad or premises to a

permissible location. As well, reg. 5B provides for the retention of the object for 7 days after

removal and for its return to the person entitled possession of i t or to its owner.

On 16 January 1992 the respondent Minister issued a certificate in the form set out in the

schedule to the regulations. The operative part of that certificate was in these terms:

"I, Gareth Evans, Minister of State for Foreign Affairs and Trade, certify that in my

opinion the removal of the following prescribed objects;

crosses,

from prescribed land or premises being the prescribed land located within 50 metres
of the boundary of the premises of the Indonesian Embassy described below and in
proximity to the premises of the Indonesian Embassy situated at 8 Darwin Avenue,

Yarralumla in the Australian Capital Territory, would be an appropriate step within the meaning of article 22 or 29 of the Convention. The reasons for the issue of this certificate are that the presence of the prescribed objects on that land or those

premises could lead to:

the impairment of the dignity, or the disturbance of the peace, of the mission

or of the head, or other diplomatic agent of, the misGon.

This certificate has effect from 3.30 pm the sixteenth day of January 1992."

I t is contended on behalf of the applicants that there exists a serious issue to be tried as to

whether the regulations are valid and whether the decision to issue the certificate is	E
reviewable under the provisions of the Administrative Decisions (Judicial Review) Act, . I t is then submitted that the balance of convenience requires the preservation of the circumstances existing when these proceedings were instituted by the grant of an interlocutory injunction restraining the removal of the crosses until the proceedings have been conclusively determined.

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I am satisfied that a serious issue has been demonstrated as to whether the regulations are

ultra vires. On the construction which commends itself to me, the regulations repose in a

Minister a discretionary power to certify that a specified action would be an appropriate step

to prevent, amongst other things, any impairment of the dignity of a diplomatic mission.

Again, on the construction which I favour, once reasonably granted, the certificate places

beyond the examination of a court the question of whether any impairment of the dignity of

a mission is in fact occurring or threatened, and whether the specified action is an

appropriate step to prevent the impairment.

On the view which I take of article 22 of the Vienna Convention as imported into Australian

domestic law by S. 7 of the Act, satisfaction of the criteria indicated by the phrases

"appropriate steps" and "impairment of its dignityN is a matter for objective ascertainment.

Article 22, by paragraph 2, provides:

"The receiving state is under a special duty to take all appropriate steps to protect,the
premises of the mission against any intrusion or damage and to prevent any

disturbance of the peace of the mission or impairment of its dignity."

It is at least strongly arguable that to place the satisfaction of those criteria behind the

generally unexaminable opinion of a Minister or any other person goes beyond what is

necessary or convenient to be prescribed for carrying out or giving effect to the Act and the

Vienna Convention, which it incorporates.

In the language of the joint judgment in Shanahan v Scott (1947) 96 CLR 245 at 250, the

regulations arguably depart from or vary the plan which the legislature has adopted to attain

the ends of the Act. I also consider there to be a serious issue as to whether a regulation

which makes the formation by a Minister of an opinion after having regard to three,

inclusively indicated, matters, a condition precedent to action contemplated by the Act is an

impermissible delegation of the regulation-making power. The basis on which such a

delegation can render ultra vires a regulation which embodies it has been indicated in, for

example, Racecourse CO-operative Suvar Association Limited v Attornev-General for

Queensland (1979) 142 CLR 460 at 481 and Ratnareo~el	v Attornev-General [l9701 A.C. 974
at 981.

There are other considerations which support the view that there is a serious question as to

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the validity of the regulations, but having regard to the circumstances in which the matter'has come on for urgent resolution, and the consequent limitations on the argument which is being presented and the time for reflection which'1 have been permitted, it would be inappropriate,

at this interlocutory stage, to express any view about those considerations.

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Counsel for the applicants have also advanced arguments that the decision to issue the	L:.?	, .
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certificate, assuming the regulations to be valid, is reviewable under the Administrative	. . ~
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Decisions (Judicial Review) Act and that the issue of the certificate occurred before the	i>?
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regulations came into effect by notification in the Gazette as required by s. 48 of the &&	I . 2 L ..
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Inter~retation	Act.	l!,
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Although evidence filed at the conclusion of this hearing tends to cast considerable doubt on	i 1.
the latter contention, because I have concluded that there is a serious issue to be tried as to	r-
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the validity of the regulations, for the reasons which I indicated a moment ago, it is	1: >,
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unnecessary and probably undesirable for me to indicate any view of the strength of those	Ii  l. :
further arguments.	i;,
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The balance of convenience is complicated in this case by the existence of a public interest in	1: .:
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the implementation of the impugned regulations which are designed to give effect to	I ' '  1. ' .'
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Australia's obligations under the Vienna Convention. That is a matter of high policy in a	:1 l'..
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sensitive and important area of government activity.	Although it can be appreciated by those

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in the diplomatic community and other sophisticated observers that restraint on the	;>1
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implementation of the Executive's scheme would be imposed by this court, an independent	i.:

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arm of government, and not by the Executive Government, I consider that such a step should

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only be taken if the threatened interference with the rights of the applicants is very

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substantial. 

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The right asserted by the applicants is not of a proprietary kind, but consists in maintaining,

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as long as the Australian Capital Territory authorities and, perhaps, the courts, allow, the

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crosses on a strip of public land of their choice. If the injunction be not granted, the ir; X . ,.

diminution of that right would be, if i t occurs, by way of requiring the maintenance of the

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crosses for a relatively short time on another piece of public land remoter from the

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Indonesian Embassy but still reasonably close and within view of it.

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I t is not without significance that the alternative location has been regarded as acceptable by

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two other groups sympathetic to the applicants and concerned to make a statement similar to

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that propounded by them. 

I am not unmindful of the emotional investment made by the

applicants in the erection of these crosses in the place selected by them, and the interest

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which that gives them in maintaining the continuity of their memorial to their countrymen	I<
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who have been killed or injured.	/ 1 p;
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However, giving all due regard to those considerations, I have concluded that the balance of
convenience is against the grant of an interlocutory injunction.	Nor do I consider that the

grant of the injunction sought in this case is authorised by 0. 25 I. 2 of the rules of this

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Court which contemplates an order for the preservation of property, the subect of litigation.

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The injunction granted by Olney J on 17 January 1992 and continued by me yesterday must therefore be dissolved. I propose to giv& directions for the speedy trial of this matter and to order that the costs of all parties of the application for interlocutory relief be costs in the

cause.

I certify that this and the

preceding eight (8) pages are a
true copy of the Reasons for
Judgment of His Honour Mr
Justice Ryan.

~ssociate:  &--&@G I

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Date: L4 J m ~ h	iy	,942.	i
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Counsel for the Applicants:	Mr R Merkel QC Mr J Hammond Mr M Bromberg
Solicitor for the Applicants:	Mr E Rodan
Counsel for the Respondents:	Dr C Jessup QC Mr R Kendall
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	23, 24 January 1992
Date of Judgment:	24 January 1992