Li and Ors v Zhou and Anor

[2014] HCATrans 281

[2014] HCATrans 281

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S213 of 2014

B e t w e e n -

JIE LIN LI

First Applicant

JING XIAO CHEN

Second Applicant

CHANG ZHI YUE

Third Applicant

and

YANG KANG ZHOU

First Respondent

ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2014, AT 9.50 AM

Copyright in the High Court of Australia

____________________

MR R.E. DUBLER, SC:   May it please the Court, I appear with MS A. SATHANAPALLY for the applicants.  (instructed by Gibsons Lawyers)

MR H.C. BURMESTER, QC:   Your Honours, I appear for the Attorney‑General of the Commonwealth.  (instructed by Australian Government Solicitor)

FRENCH CJ:   I think there has been an affidavit filed to indicate that there is no appearance for the first respondent.

MR DUBLER:   Yes.

FRENCH CJ:   That is not surprising in the circumstances.

MR DUBLER: No, there has not been any appearance to date. Your Honours, this case concerns three Australian citizens who sought damages for assault amounting to torture under the Torture Convention. The acts of torture which are alleged to have been committed were including by the first respondent as a former public official in China. The proceedings were dismissed at first instance on the grounds of foreign state immunity, and that was upheld in the Court of Appeal. The question of law essentially can be collapsed into one question is whether state parties to the Torture Convention by dint of Article 14, such as China, have thereby agreed to submit to the jurisdiction of Australian courts under section 10(2) of the Foreign States Immunities Act.

Your Honours, we would submit firstly that public importance, by and large, cannot be gainsaid.  The matter is of great importance, it is a matter of fundamental principle and of proper interpretation of a statute that has not been considered in this light before by this Court.  But I would like to firstly deal with the argument and its current state of acceptance generally and then I will move to public importance, though again, only briefly. 

Could I commence by just submitting what is the proper interpretation, we say – and it may assist if the Court has the article in front of your Honours, and that can be found at application book 32, so that is page 32 of the application book, at line 10 or at the commencement of the page, Article 14 is set out.

The applicants submit that the proper interpretation of Article 14 currently – and I will just expand upon that briefly in due course – is unsettled and a real and cogent argument exists in the support of the applicant’s proposition to the following effect:  Australia, being a state party, is required to ensure in its legal system ‑ meaning by the New South Wales Supreme Court in the case at suit ‑ that the victim of an act of torture – meaning the applicants, as they allege to be – has an enforceable right to fair and adequate compensation – meaning it can bring, and it must be permitted to bring, a claim or cause of action against the first defendant as the individual perpetrator.

It was submitted below and always has been submitted that properly construed in context the defendant in question needs to be an individual perpetrator and thereby there is harmony with the other articles.  The proposition in its essence is that the article means what it says and says what it means and that whilst there are cases to the contrary, they essentially suffer from the vice of attempting to read down the words of Article 14, or read words into them which, at the end of the day, we say, on an alternative better construction, just does too much violence to the actual words chosen in their context and bearing in mind the object of the Convention as a whole.

FRENCH CJ: Of course, our point of departure must be, must it not, section 10(2), and what it means in our domestic law for a foreign state to submit to jurisdiction.

MR DUBLER:   Yes, and what the respondent says is that one can and need not get into the proper interpretation of Article 14.  If I could address that squarely, we would say, essentially by analogy with Pinochet (No 3), if we are right on the proper interpretation and there is a mandatory obligation upon Australia to permit the suit so that Australia would be ‑ ‑ ‑

FRENCH CJ:   This is on the basis of jus cogens?

MR DUBLER:   No, no – with respect.  If I could just finish the sentence, then I will come back to that point, if I may.

FRENCH CJ:   Yes.

MR DUBLER: Dealing firstly with what may be called the section 10(2) point, that if our construction is right, which is there is a mandatory obligation on Australia to take the suit or permit the suit despite any customary law proposition of state immunity, we would say by analogy with Pinochet (No 3), if we are required to do it, the other state parties cannot be heard to complain we are doing it, so that they must be by necessary implication taken to have agreed to Australia taking the jurisdiction.

That was, in essence, in the criminal field, the reasoning behind Pinochet (No 3) ‑ one could not require England to take a criminal prosecution of Mr Pinochet and yet still allow Chile to claim state immunity. If you are required to do it, the other state parties must have agreed to it. So we say that section 10(2), which specifically by definition includes agreement by treaty, means that if there is a pre‑standing obligation to – on one party to take the case – all other state parties have agreed to such jurisdiction.

Now, on the jus cogens point, if I could come to that directly, I did wish to say our interpretation and our question of law does not raise the other question which could be described as this:  whether as a matter of customary international law and by reason of torture being a jus cogens or peremptory norm, customary law has reached the point where state immunity does not apply to torture.  We take it as, for the purpose of argument, more or less settled currently, and particularly by Jones in the European Court of Human Rights, that no such proposition has today evolved in customary international law.

But the opposite proposition does not necessarily follow which is states by agreement can come to whatever conclusion they wish about waiver or submission or agreement to jurisdiction, so that if the parties, irrespective of the position under customary law, agree that Australia can take the case, then section 10(2) is engaged.

We point out in response to my friend’s submissions that Kazemi in the Supreme Court of Canada essentially is consistent with that, that is, the Supreme Court in Canada recently held that Article 14 is unsettled and even if the interpretation we have put forward is accepted, nevertheless, there is not a clear peremptory customary norm that says mandatory civil jurisdiction has arisen, irrespective of treaty.

So, if I could just summarise, perhaps very briefly at a broad overview, the state of play in international law in respect of Article 14.  We say that it remains currently a vexed and somewhat unsettled question.  There is obviously Bouzari in the Canadian Ontario Court, and Jones in the House of Lords, but that could be regarded somewhat as a high watermark and it has not settled the position and more recent events, decisions and comments have meant that the position is still unsettled, and if I could just summarise that. 

In our support, for example, we would point to the General Comment of the Committee against Torture in 2012.  They support the applicant’s interpretation of Article 14.  Now, we also have Justice Abella in dissent, but nevertheless, a reasoned argument that is on all fours with ours, and we would respectfully adopt her analysis of Article 14.  That is in Kazemi in the Supreme Court of Canada.  The next one would go to academics and we would point to, notably, the former Rapporteur of the United Nations on Torture, Professor Nowak, who has said that Jones in the House of Lords is contrary to Article 14.

FRENCH CJ:   Well, Article 14 on this sort of approach is embedded in a number of references to writings of other decisions and so forth.

MR DUBLER:   Yes.

FRENCH CJ:   That is said to support an implication of submission for the purposes of our domestic law.

MR DUBLER:   Yes.

FRENCH CJ:   I think the point you really have to come to grips with in the context of the domestic law is whether something that does not leave out – in Article 14 – something that requires a fairly real argument to imply, amounts to an important decision by a foreign state to submit to the jurisdiction of this country.  I think it is as straightforward as that in a sense.

MR DUBLER:   Yes.  Without suggesting that is not an available argument, can I suggest that it does necessarily, though, collapse into one point, with respect ‑ ‑ ‑

FRENCH CJ:   Yes.

MR DUBLER: ‑ ‑ ‑ and it can be addressed, perhaps, in this way. Obviously section 10(2) requires submission, but it does not point to, and we would say, it would be wrong to intrude upon what otherwise would be just a simple question of submission simpliciter, the notion that it must be by express words such as “hereby submit to the New South Wales Supreme Court”. That is my friend’s argument.

FRENCH CJ:   …..that each state party will submit to the jurisdiction of the other state party, et cetera.

MR DUBLER: Correct, yes. So, as I understand it there, the argument that my friend raises and I think your Honour is putting to me is essentially that Article 14 over here – in due course, international law is unsettled – may evolve to being found, and it may become to be settled, a settled interpretation, that there is a mandatory civil jurisdiction. But that nevertheless does not engage section 10(2), because currently when you look at the words, it does not have something like “hereby submits to”.

Now, we would submit that that is a disconnecting, because it would mean that Australia, for example, is in breach of the obligation internationally and it can be found internationally that China in fact has submitted to Australian courts, but section 10(2) acts as a bar nevertheless. The result of that would be, in due course, if one has the interpretation in due course that I submit, the result would then be under the section we must act contrary to international law. That is the current state of the domestic law.

So, your Honours, that starkly points out that that interpretation should not be favoured, so that the result would be that state immunity must be granted even though at international law we are saying we have to take the jurisdiction, so the more consonant ‑ ‑ ‑

FRENCH CJ:   So your best position is that it is arguable at international law.

MR DUBLER:   Yes.  I cannot put it higher than that, and I think I will just point out about two more sources.  I put it that the high point to us is the Committee against Torture.

GAGELER J:   Can we go back one step?

MR DUBLER:   Yes, certainly.

GAGELER J:   You mentioned Justice Abella in dissent.  Where, in the judgment, is the strongest statement in your favour?

MR DUBLER:   Yes.  So, Justice Abella, if your Honours have the judgment, it commences after paragraph 171.  I do not have page numbers, but the reasoning commences at 211 through to about 230, but in particular, 215, your Honour…..I will just let your Honours read that, which is essentially our submission.

GAGELER J:   Is that addressing the submission to jurisdiction?

FRENCH CJ:   …..Delphic.

MR DUBLER:   Well, I was about to say elegant simplicity.

FRENCH CJ:   Implicates the question.

MR DUBLER:   I think the answer to your Honour Justice Gageler’s question is yes.

GAGELER J:   Yes.

MR DUBLER:   She was in dissent and would have upheld the claim, and therefore not permitted the bar on state immunity.  It is a bit hard to do - to Justice Abella that those paragraphs demonstrate that – and in particular, for example, paragraph 211 – was the point I was making before that it may be that customary international law permits state immunity, but it does not preclude a state from denying immunity.  Then her Honour’s reasoning is to go on and rely upon Article 14 to say that that is what has happened. 

So, the Committee against Torture, Justice Abella, some academics is our high points, but what I would point out is, your Honours, that despite Jones in the House of Lords and Bouzari in the Ontario Court, in 2014 Jones in the European Court of Human Rights at paragraph 208 said it is unsettled.  Similarly, at paragraph 148 of Kazemi in the Canadian Supreme Court, they also said there is no consensus on Article 14. 

So my point is, at its highest, there is the Committee, but no authority directly in favour, but nevertheless, doubts have been raised, it is unresolved, it is unsettled.  The House of Lords in Jones has not become the settled consensus and so it remains an open question. So, lastly, I just wish to return to the public importance point and say that it is an appropriate vehicle. It is a narrow point, it is a straight‑out question of law and the section is an important section that has not been dealt with, for example, the point on what is the proper meaning of section 10(2).

If I could put it most starkly why it would be an appropriate case for this Court to take on, Australia is also a party to the Optional Protocol to the Convention against Torture.  That means that the applicants have an individual right to go to the Committee, that if your Honours were to decline special leave, the next step would be to Geneva.  Based upon the General Comment, one would think that perhaps they have reasonable prospects. 

So, if the Committee was to hold that Australia was in breach of Article 14 without this Court deciding an unresolved matter, it would, with respect, sell Australia somewhat short and that it would be appropriate for the highest Court of this land to pronounce upon Article 14 before it was challenged in an international forum.  Those are the applicant’s submissions, your Honour.

FRENCH CJ:   Thank you, Mr Dubler.  Yes, Mr Burmester.

MR BURMESTER: Your Honour, in our submission, the applicants have not established good reason why special leave should be granted. As to the significant question of public importance, as they themselves have recognised this morning, it is a narrow question about the operation of section 10(2) of the Foreign States Immunities Act and Article 14 of the Torture Convention.  But when one looks at the substance of my friend’s argument, it is all about the possible content of Article 14 in terms of whether or not it establishes universal civil jurisdiction. 

As he acknowledges, recent cases acknowledge that that is a matter of debate.  There is no consensus as a matter of international law.  But that is not the question that would be before your Honours.  In the Canadian case of Kazemi, they were not looking at this narrow question of jurisdiction.  They were looking at constitutional issues and Charter of Rights issues.  In the European Court in Jones, they were essentially looking at the relationship between the Torture Convention and human rights treaties versus state immunity.  They are much broader questions, but they are not the sort of questions that would arise in any appeal in this matter. 

If one then considers the relationship of section 10(2) and Article 14, in my submission, my friend’s submissions essentially only focus on the Article 14 side of the equation and ignore completely the law of sovereign immunity which informs the interpretation one brings to section 10. In our submission, the essence of our position can be summarised in the words of Justice Basten in paragraph 37 of the judgment at page 41 of the application book, where he says, having talked about state immunity:

The application of this principle militates against the easy acceptance of the conclusion that any party to a treaty has acceded to the jurisdiction of other national courts through inadvertence or based on ambiguity or derived from uncertain inference.

Now, in this case, my friend accepts that Article 14 is not an express submission to jurisdiction.  At most, it can be an indirect inference deriving from what he says is universal civil jurisdiction that he says is the correct interpretation of Article 14, an interpretation though which he acknowledges no other court majority has endorsed and which commentators and others say is a matter of no consensus of some debate ‑ ‑ ‑

GAGELER J:   Now, Mr Burmester, is the proposition that you seek to draw from Justice Basten’s judgment a proposition of international law that goes to the construction of Article 14 of the Torture Convention, or is it a proposition of statutory construction that goes to the construction and application of section 10?

MR BURMESTER: It is both, your Honour. It would inform the interpretation of section 10(2) and if one says on its face it does not say express submission, so it may possibly extend beyond that, then if one looks at the context in which that section was enacted, then it was clearly understood that states usually did so with some clear inference, if not expressly. So, it is relevant to the statutory interpretation question. It also is relevant to the conclusion you might reach as to what Article 14 means.

Even if one was to accept my friend’s argument that yes, there is a universal civil jurisdiction, when one puts that alongside the law of state immunity, one might still conclude that any inference that immunity had been waived was not made out.  In the international court case of Germany v Italy which Justice Basten refers to, they clearly accepted that the law of state immunity can exist alongside human rights law, the law of jus cogens and that they are not incompatible. 

In my submission, my friend’s material and what he seeks to rely on essentially ignores giving any weight or significance to the law of state immunity when it comes to interpreting and applying Article 14 and interpreting and applying section 10(2) of the Foreign States Immunities Act.

GAGELER J:   What is the best authority for the proposition that a submission to jurisdiction must be clear?

MR BURMESTER: Well, your Honour, I think it is the history of submission to jurisdiction, if one looks at state immunity. In the Canadian context, the words “express submission” is used in their statute, so the question did not arise there, the same sort of question as here. If one looks at the Law Reform Commission report that supported and informed the Australian statute, then it certainly contemplated express submission or at least a clear inference, and that was the conclusion that the trial judge reached which, in our submission, the Court of Appeal endorsed – that when you look at the context of section 10(2), then something more than, as Justice Basten says, ambiguity or uncertain inference is needed, and unless my friend could overcome that, then in my submission, the prospects of success would be low and it would not be appropriate to grant special leave.

In terms of public significance, it really is a narrow question about the operation of section 10(2) of the Foreign States Immunities Act. Each treaty will be different and so, in my submission, a pronouncement by this Court on the meaning of section 10(2) in the context of Article 14 of the Torture Convention is not necessarily going to have broad application or relevance.

My friend did refer to the General Comment of the Torture Committee. In my submission, no reliance should be placed on the General Comment, as it is not – as the Canadian Supreme Court recognised in Kazemi, it is not authoritative, it is not binding on states, it is only the views of a Committee of the United Nations.  In that context, my friend’s reference to possible complaints under the Optional Protocol and possible findings by the Committee that Australia is in breach of Article 14 is, in my view, entirely irrelevant in terms of whether special leave should be granted in this case.

Even if the Committee was to take a broad view of the application of Article 14, what they cannot do is override the provisions of section 10(2), and as was recognised in the court below, it would be open for Australia to legislate to allow claims like this. In Canada, they specifically amended their Sovereign Immunity Act to allow claims arising out of terrorism. In the United States, there has been an exception for torture claims and the Torture Victim Protection Act, so it is open to a party to legislate to allow such claims but, in our submission, in the absence of such legislation, a general provision like section 10(2) should not be seen as a way in which to allow civil claims against foreign states and their officials in the absence of any clear submission in the terms of the relevant treaty. In our submission, that is the case that arises here. If the Court pleases.

FRENCH CJ:   Thank you Mr Burmester.  Yes, Mr Dubler.

MR DUBLER:   I have nothing further in reply.

FRENCH CJ:   Thank you.

The applicants, who are Falun Gong practitioners, commenced proceedings in the New South Wales Supreme Court against an official of the Government of the People’s Republic of China seeking damages for mistreatment said to have constituted torture.  The Court of Appeal dismissed their appeals from decisions of the primary judge dismissing applications for default judgment in the proceedings on the basis that the Foreign States Immunities Act 1985 (Cth) conferred an immunity on the defendant who was found to fall within the definition of a “foreign state” under the Act. In particular, the Court of Appeal held that the People’s Republic of China had not submitted to the jurisdiction by agreement within the meaning of section 10(2) of the Act.

The applicants’ contention that China’s accession to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment amounted to a submission that jurisdiction within the meaning of section 10(2) was rejected. In our opinion, the applicants have not demonstrated that the construction is attended by sufficient doubt to warrant the grant of special leave. Special leave will be refused.

AT 10.15 AM THE MATTER WAS CONCLUDED