Taylor v Attorney-General for the Commonwealth

[2018] HCATrans 244

[2018] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M36 of 2018

B e t w e e n -

DANIEL TAYLOR

Plaintiff

and

ATTORNEY-GENERAL OF THE COMMONWEALTH

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 19 NOVEMBER 2018, AT 9.31 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friends, MS R.J. SHARP and MR C.J. TRAN, for the plaintiff.  (instructed by Human Rights For All Pty Ltd)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with my learned friend, MS K.M. EVANS, for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Merkel, thank you for the draft case and submissions.  Having had a chance to consider them now, it appears to me that question two probably needs to be redrafted in a way which makes explicit the three ways in which you pose it.  That is to say, as I understand from the submissions, it is contended on three bases, in effect, that the Minister erred in refusing consent; first, because he misunderstood customary international law; secondly, in effect, in the alternative, even if he did not misunderstand international law he was bound by the adoption of the Rome Statute to act in accordance with it; and thirdly, even if he did not misunderstand international law he was bound by the Executive determination as manifested by the implementation of the Rome Statute to act in accordance with it.  If this is to go ahead, it seems to me we need to make those three alternatives clear so that each can be decided according to that argument.

That is the first thing.  The second thing concerns the first, as I understand it, principal way in which you put it, which is that the Minister misunderstood international law following changes made to it the result of the Rome Statute.  You refer in paragraph 17 of the draft case to a number of instruments which, subject to the Rome Statute, are accepted as evidencing customary international law, but as I understand the thrust of 17 and the submissions what is said is, well, that was all very well and good before the Rome Statute but it has now changed the consequence of the Rome Statute.  Am I right?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   So there is no longer this immunity ratione personae that there was before the implementation of the Rome Statute.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Since we got that we have had a look ourselves at some international law and one thing which appears to be absent from your recitation of it there is a further report of the International Law Commission at its 69th session which considered the Fifth Report of the Special Rapporteur and it appears to have concluded that, despite the Rome Statute, there is no customary rule allowing for limitations in respect of the immunity ratione personae and they have adopted a draft Article 7 on 20 July 2017.  We will give you a copy of what we have got.

I do not know whether you are familiar with it or not but it appears, to me at least, to be relevant to the question of whether the international law has changed in the way that you contend; prima facie it appears not to have done so which would mean that the first way in which you put question two would be answered adversely to the plaintiff leaving only the second and third ways.

Are you in a position to accept that this evidence is current international law or do you say the contrary or do you need more time to think about it?

MR MERKEL:   Can your Honour just excuse me for one moment?

HIS HONOUR:   Certainly.

MR MERKEL:   Your Honour, the way in which we have been dealing with our learned friends is that we have in effect said we maintain our position as it is not necessary for international law experts to be called because the Court is in as good a position as an expert if it has got all the evidence, and we would have no problem with this being added to the material – we would wish to consider it ‑ but it seems to fit into the category.  What weight it is given is a matter for the Court.

HIS HONOUR:   Well, therein lies the rub.  I am not too sure if one were to state a case for the Full Court how my brothers and sisters of the Full Court sitting in banc would go about making a determination of fact as to what is the international law.  If it is accepted that that evidence is it, then that decides the matter and it can go forth on that basis.  If it is said that there is something else which casts doubt on it, then I think it is necessary to identify it now and put it before the Full Court as part of the stated case.

MR MERKEL:   Yes.  Can we take that under consideration, your Honour, we will need to have a look at that?

HIS HONOUR:   Certainly.  Assuming for the moment against you, as it were, that there is nothing to contradict in it and it remains the position that the immunity ratione personae continues to apply, that would mean that the principal focus would be on the second and third ways in which you put question two, which is to say notwithstanding customary international law the Rome treaty obligates Australia to act in a way that you say it should.  Alternatively, the Executive’s determination that foreign offenders should be prosecuted for these sorts of crimes under a domestic law overrides customary international law.

MR MERKEL:   Your Honour, that is subject to one aspect which I think was part of our reason number one, and that is that the Rome Statute itself, being a treaty of 123 nations, itself evidences what the current state of international law was as at March 2018 and that following the – just relying on the statement which we quoted briefly of Lord Macmillan, which is footnote 3, that the question was not just one of looking at a number of versions, international law essentially – customary international law essentially reflects the law assented to by nations.

The way in which we put reason number one goes to that second level, that assent of the law of nations in respect of the Rome Statute offences itself is evidenced by the treaty to which 123 nations have assented as at the relevant date.  And also that it was important to the arrest warrant case that the – to analysis of it that the Rome treaty had not at that stage become an international convention but the relevant date does not have to be within a short period after the arrest warrant case; the relevant date for us is as at the date of the Attorney’s decision.

We say that the reservation that we have built into paragraph 17 carries with it all three arguments, so that we do need to consider that report, but the report seems to have accepted the reasoning of the International Court of Justice back in the arrest warrant case ‑ ‑ ‑

HIS HONOUR:   Yes.

MR MERKEL:   ‑ ‑ ‑ but not reviewed whether as at the relevant date for us what the assent of nations may have resulted in by reason of a change to customary international law.

HIS HONOUR:   So that is to say that, subject to looking at it, despite this further report, the 69th report, you would still be contending that public international law is as set out in the Rome treaty?

MR MERKEL:   In respect of offences governed by the treaty because that is the law that the nations have assented to, both at the International Criminal Court level but also because of the principle of complementarity at the national and domestic court level.

HIS HONOUR:   Very well.  All right, well I think what we need to do is get some assent about public international law.  It is no good sending this to a Full Court with statements on the one hand that international law is X and on the other hand it is Y, requiring the Court to make a factual finding as to which is correct.  We need, if at all possible, to get some agreement about what is the current stated international law.  Is that asking too much, given that it is a question of fact largely?

MR MERKEL:   I think the problem that your Honour has raised with us ‑ and that is why so much effort has gone into a wording for paragraph 17 that accommodates both side’s argument ‑ ‑ ‑

HIS HONOUR:   Well, it conceals more than it reveals and therein lies the problem.

MR MERKEL:   Well, except for this, your Honour, we could try and agree on a wording but, ultimately, we say international law has not dealt with and resolved the issue that we have raised in the first reason, which is what is the consequence of the Rome Statute in the context in which we are putting it?

HIS HONOUR:   Yes.

MR MERKEL:   It is that question which we say is raised to which there is no answer, and we say the materials that are relied upon themselves are not an answer because there is no way in which any particular decision is necessarily definitive of the state of international customary law, which takes us back to that threshold statement of Lord Macmillan and one, we would say, cannot ignore the consequences of the Rome Statute given its assent by 123 countries.  I mean, there will be questions also about the construction to be given to the Rome Statute, which I think has been raised already before your Honour, but we say that they are matters for the Court on the material that is agreed and not disputed.

HIS HONOUR:   All right.  And at the moment, subject to this further material that I have referred to, the material which is agreed upon and not disputed is that which is listed in paragraph 17?

MR MERKEL:   Yes, your Honour, but I want to make it clear, they evidence customary international law, what the Court derives from that is a matter for looking at the documents themselves.

HIS HONOUR:   Very well.  Well, I think then, Mr Merkel, what I need to do before we go any further is get you to put on your full submissions in support of the three ways that you contend for your answer to question two plus your full submissions on question three, which is the procedural fairness, and then get the Commonwealth to respond to them so that I can identify clearly where the differences are and satisfy myself that there will be sufficient material going forward for the Court to make a decision on it when it considers the case.  I cannot see much point in putting it up now and then getting submissions and then having difficulties finding out whether or not we have done enough.  It is better to get it all done upfront then we can refer it if it looks good, or not refer it if it looks bad and I shall deal with it.

MR MERKEL:   Yes.  Your Honour, we are content to take that course, subject of course if your Honour were to make the alternative open, which is if we can agree on a formula for resolving the concerns your Honour has raised then it may be appropriate for it to go in the usual way but we will have to give consideration to that, your Honour.

HIS HONOUR:   All right, I will see what the Solicitor says.  Thank you, Mr Merkel.

MR DONAGHUE:   Your Honour, I think the answer to the question, are we going to be able to agree on the content of international law, is no.  I say that because there is a very great gulf between us as to how we say these relevant principles work, partly because – and in relation to the document your Honour has identified, we agree it would be appropriate for that to go into the bundle of material; that is, a further plank in an extended set of planks that are all to the same effect, we say, so the other material that is already listed in paragraph 17 points in the same direction.

HIS HONOUR:   Yes.

MR DONAGHUE:   So there is a lot of material that says that.  As far as I am aware, there is nothing that goes the other way, but Mr Merkel wants to make what is in effect a legal argument, but notwithstanding what those documents purport to say on the basis of the treaty, international law is something else.  We are not going to agree to that.  So insofar as that is the argument, it is probably not an argument that really involves factual differences in terms of the underlying material, it is more can the legal proposition be made good about the effect of the Rome Statute on this other body of material.

Now, since we saw our friend’s submissions it has seemed to us that perhaps there are one or two other things we would seek by negotiation with them to add to the list, being decisions of the International Criminal Court itself which, we submit, also support the same view that we have advanced.  And given the reliance that has been placed on the changing effect of the Rome Statute, it does seem to us relevant that the criminal court itself does not take the view that our friends have taken, so we will identify those cases but consistently with the approach that the plaintiffs have taken to date I do not anticipate there will be a problem with those cases being relied on for what they say and it will then be a question of what we can draw out of that.

Very briefly, just so your Honour understands the part of the foundation for the disagreement, we do not deny that it is possible for treaty law to be relevant to the content of customary international law but we do deny that it is relevant in the way that the plaintiff is suggesting because the suggestion is, in effect, that if country A, Myanmar, has an entitlement under international law to the immunity for its head of state and foreign minister, it is suggested that country B and C by an agreement between them can change their legal obligations with respect to country A, and we deny that treaty law is capable of changing customary international law in that way.

If it was, that would mean that notwithstanding that countries such as the United States, China, India, Russia are not parties to the ICC, all these other countries making agreements between themselves have changed the immunity obligations of those States and we submit that is not how it works.  But the way that the treaties are relevant, potentially, is that a widespread treaty might set a rule that even countries that are not party to the treaty start to adopt and conform their behaviour too in such a way that, looking at the behaviour of non‑State parties to the treaty and their beliefs as to their legal obligations, one can see that customary international law is evolving to conform itself to a treaty and there are ICJ cases that recognise that process.

So, for example, in relation to the Convention on the Law of the Sea, parties that were not members of that nevertheless started following the rules that were found in that Convention in various ways and so there was a development of customary international law in various ways to align itself with the content of the treaty.

So we deny that there is any evidence of that happening and, indeed, as we understand the plaintiff’s case, they are not saying there is; they are saying the fact that the 121 States to the Rome Statute behave in a particular way evidences a change of customary international law and we say that is just a misunderstanding.

So that is why I very pessimistically say we are just never going to agree that the customary international law has changed and ultimately I think your Honour it would be a matter for whether the legal arguments that I have very briefly summarised are for you or for the Full Court.

HIS HONOUR:   Yes.  Questions – sorry, not questions two and three – parts two and three of question two which are really domestic law essentially will not pose the same problems, will it?

MR DONAGHUE:   No, although if we are right about what the Rome Statute means – as Mr Merkel indicated, there is a debate of construction – if we are right about what it means, those questions will be readily answered in our favour but they will not cause the same evidentiary issue.

HIS HONOUR:   Very well.  Do you oppose my proposal that Mr Merkel now be required to put on his full submissions and then you answer them – I suppose he will want a reply ‑ ‑ ‑

MR DONAGHUE:   Yes.

HIS HONOUR:   ‑ ‑ ‑ as it were, to get it ready in anticipation of it going to a Full Bench but not with any guarantee because I will still make a decision after getting all the submissions and whether I should deal with the question.

MR DONAGHUE:   I do not oppose that, your Honour, but I do, I suppose, ask what about question one?  If our friends are going to put on all of their submissions in a way that might lead your Honour to just say, well, let us go to the Full Court it might be better if they put on their submissions across the entirety of the case and we do the same and that your Honour can then just send it to the Full Court if that is what you decide to do rather than another round of submissions being needed.

HIS HONOUR:   I quite agree.

MR MERKEL:   Your Honour, we were going to put the same proposal as my learned friend ‑ ‑ ‑

HIS HONOUR:   Excellent.

MR MERKEL:   ‑ ‑ ‑ that we put our full submissions ‑ ‑ ‑

HIS HONOUR:   How long?  I know it has been around a while.  I saw this morning with some degree of concern that it was issued in March of this year.

MR MERKEL:   Your Honour, can we seek to reach agreement between us on consent orders that we can put to your Honour when we have had a look at what our available capacity is?  To give a time, I cannot give one off the top of my head at the moment, your Honour, because there is obviously a fair bit of research to do.  I should say, just in response to my learned friend’s point, we do say that Burma’s assent is not an essential element to our argument.  What is relevant is the offence, not the agreement of any particular country ‑ ‑ ‑

HIS HONOUR:   I understand.

MR MERKEL:   ‑ ‑ ‑ and the offence is covered by the Statute of Rome because it happened in a Statute of Rome country, the offence that is

alleged ‑ that is in Bangladesh ‑ so if it is covered by the Statute, the immunities apply, but that is getting to the substantive argument.

HIS HONOUR:   It is, which no doubt you will formulate in the full submissions.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Mr Merkel, ballpark area, are we talking a week, a month, three months?

MR MERKEL:   I think a month, your Honour, in that area.  We have got to do a lot of research.

HIS HONOUR:   I understand.

MR MERKEL:   Customary international law, your Honour, there is a very famous saying of Justice Cardozo about a hundred years ago which says it has an existence in the twilight until sometimes it has to actually be looked at.  I cannot remember; it is a very elegant quote that captures the problem of trying to define it.

HIS HONOUR:   Yes, all right.  Well, I think I want to make some dates.  So if I gave you until 21 December, that is more than a month ‑ ‑ ‑

MR MERKEL:   One of the problems I have is I will be away for a large part of December, your Honour.  Could we have it just in effect at the shutdown, the latest date before Christmas?

HIS HONOUR:   Well, that is it, that is the last Friday before Christmas Eve.  No one will be around after that – well, I shall, but no one that receives your documents will ‑ ‑ ‑

MR MERKEL:   Could I have into the first week of January then, your Honour, or when the Court opens?

HIS HONOUR:   We will give you until 11 January.

MR MERKEL:   Yes, thank you, your Honour.

HIS HONOUR:   And that is a happy circumstance because it gets the Solicitor‑General out of having to work across the Christmas vacation.

MR DONAGHUE:   I was going to say, your Honour, our friend’s month puts them in a convenient position and us in an inconvenient one, but given that later date could we ‑ ‑ ‑

HIS HONOUR:   How long do you need?

MR DONAGHUE:   I think we need at least three weeks, but probably – given that – no, actually, we need longer than that because that is all January and relevant members of my team are away.  Could we have until ‑ ‑ ‑

HIS HONOUR:   What about the 8th?

MR DONAGHUE:   Is 15 February too late?

HIS HONOUR:   Well, I suppose it is not going to – you will have to be pretty quick with the reply then, Mr Merkel.  Let us make it 15 February for the Commonwealth’s submissions and, Mr Merkel, your reply by 1 March.

MR MERKEL:   Yes, thank you, your Honour.

MR DONAGHUE:   Your Honour, can I ask, does your Honour have in mind that we will prepare an amended version of the special case?

HIS HONOUR:   Yes, to accommodate the three parts of the question two which are now revealed by the submissions.

MR DONAGHUE:   I do not think that will cause any problems but we should do that before any of the submissions then, I take it.

HIS HONOUR:   Yes, you should.  You can do that by the end of the week, I should have thought.  Am I right?

MR DONAGHUE:   Yes, thank you, your Honour.

HIS HONOUR:   Well, I will make the following directions:

1.The parties shall file a revised question two of the draft special case, separately identifying the three parts of it as now revealed by the plaintiff’s draft submissions, by no later than 4.00 pm on 26 November 2018.

2.The plaintiff shall file and serve his final submissions on or before 4.00 pm on 11 January 2019.

3.The defendant shall file and serve his final submissions on or before 4.00 pm on 15 February 2019.

4.The plaintiff shall file and serve his reply on or before 4.00 pm on 1 March 2019.

I shall adjourn the further hearing of the summons to a date to be fixed after 1 March 2019.

MR DONAGHUE:   Your Honour, costs in the cause?

HIS HONOUR:   Costs in the cause.  Thank you both.  Thank you all.

AT 9.56 AM THE MATTER WAS ADJOURNED