Zhang v Zemin

[2011] HCATrans 134

[2011] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S253 of 2010

B e t w e e n -

CUI YING ZHANG

Applicant

and

JIANG ZEMIN

First Respondent

610 OFFICE (FALUN GONG CONTROL OFFICE)

Second Respondent

LUO GAN

Third Respondent

ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Fourth Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 2011, AT 11.53 AM

Copyright in the High Court of Australia

____________________

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

MR H.C. BURMESTER, QC:   May it please the Court, I appear for the fourth respondent.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Yes, Mr Dubler.

MR DUBLER:   May it please the Court.  This case involves the question of foreign state immunity for alleged acts of torture committed against an Australian citizen and resident who claims to have suffered damages within the jurisdiction of New South Wales.  The applicant contends that to uphold the claim in state immunity would put Australia in breach of its treaty obligations under the Torture Convention and in particular under Article 14.  That we have described as question 1 in our submissions.  Secondly, that such a breach for Australia under the Convention obligation is not mandated by or required by the Foreign States Immunities Act 1985 (Cth). That we have put as question 2 in our summary.

If I could deal with the first proposition.  The applicant says that there is well‑grounded support for the view that Article 14 of the Torture Convention should be given its ordinary and natural meaning and, in particular, in its context and having regard for the purpose of the Torture Convention, there should not be read into it an implied territorial qualification.

FRENCH CJ:   Is it correct to say that this proposition was not raised either at first instance or in the Court of Appeal?

MR DUBLER:   It was not, yes.  I think the better answer to that is yes.

FRENCH CJ:   Why should we deal with it for the first time at this level?

MR DUBLER: Yes. Obviously that is a fair point and will often be fatal. The answer to that, your Honour, we would say is that the question is one of statutory interpretation, in particular, section 10(2) of the Foreign States Immunities Act and Article 14 of the Convention.  It involves not issues of fact but only of law.  It does not turn upon the way the matter was run below.  Further, whilst there may be cases where this Court would benefit from reasoning of an intermediate Court of Appeal, here it should not be regarded as necessary or crucial because the arguments, in fact, are reasonably well known.  They were at least put in written submissions, apparently, in the Court of Appeal and have been dealt with internationally in other areas, such as in Jones in the High Court and Bouzari in the Court of Appeal in Ontario in Canada.

FRENCH CJ: This is necessarily linked to the proposition, is it not, that by its accession to the Convention against torture, the People’s Republic of China can be taken to have submitted to the jurisdiction for the purposes of section 10?

MR DUBLER:   Yes, that is a necessary limb to the argument.

FRENCH CJ:   You say that question can be sufficiently answered just by looking at the treaty and the parties to it?

MR DUBLER:   Yes, indeed.  The treaty, its records, its status, its terms, its text can be dealt with by this Court on appeal from this point.  Could I deal with the argument based on Article 14.  It is perhaps dealt with best if your Honours have it in front of your Honours.  In our bundle, your Honours will find it at page 12.  Article 14 relevantly reads that:

1.        Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation . . . 

2.        Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

The words “committed in any territory under its jurisdiction” was originally in the draft after the words “an act of torture”.  Your Honours can see in juxtaposition in Article 13, for example, after the word “torture” there is the words “in any territory under its jurisdiction”.  Similarly in Article 16 in the first line, there is also reference to “in any territory under its jurisdiction”.  Whilst in Article 15, like Article 14, whilst there is reference to torture, there is no territorial qualification.  That, we say, on the face of the Convention, its structure and in its context, the better view is, and it has the support of scholars and others in the field, that where there was intended to be a territorial limitation, that was done so in the Convention expressly, but where the effect of an act of a torture was not intended to have any territorial limitation, the Convention was essentially silent in that regard, and that can be seen in Article 14. 

For example, the House of Lords, when construing Article 15 dealing with the admissibility of statements resulting from acts of torture, held in A v Secretary of State for the Home Department that the acts of torture there are wherever committed and without territorial limitation.  Such a view of Article 14 is also supported by the Committee Against Torture, which is the relevant treaty body of experts which, under the Torture Convention, has the authority to consider state reports and to consider individual complaints where a state has adopted the optional protocol, which includes Australia. 

This may be one way in which perhaps I can also answer your Honour the Chief Justice’s comments, that Australia has acceded to the optional protocol.  There could be an individual complaint and it may well be that the Committee Against Torture retains its view of Article 14 that to bar a claim for state immunity would be incompatible with Australia’s obligations under Article 14.  It should be, with respect, a matter taken up by this Court rather than have Australia potentially be in breach of its Convention obligations from this point onwards.

FRENCH CJ:   Let us assume for the moment that your construction of 14 is correct, or at least arguable, the question whether, in any event, you get to a submission to the jurisdiction via this Convention would require, would it not, not just an examination of the terms of the Convention but also of the travaux preparatoires and circumstances surrounding it as to the intention?

MR DUBLER:   Yes.  I think the answer to that must be yes, but it is something that should be able to be accommodated in any appeal.  Without labouring the point but just to make one additional point in regard to the proper construction of Article 14, as referred to in our summary of argument, we point out the view that we propound about Article 14.  Apart from having the support from the committee, it also has the support of the former UN special rapporteur on torture, Professor Nowak, who was in that position from 2004 to 2010 and would be expected to speak with some authority.  He has expressed the opinion that, for example, Jones Case is not in accordance with the obligations of the United Kingdom under Article 14 to provide victims of torture an enforceable right of compensation against the individual perpetrators in Saudi Arabia.  So there exists, we say, whilst it appears to have been and we accept abandoned before the Court of Appeal, a well available argument that we wish on behalf of the applicant to raise in this Court.

The alternative construction of Article 14, which comes to the same result, is to consider whether or not there is a permissive jurisdiction based, in particular, upon Article 14 2., the savings provision.  The alternative argument is that a proper construction of Article 14 2. in the context of the Convention as a whole where it preserves existing state laws is that where an existing state law permits a claim for compensation for acts of torture abroad, which we say is the case here for an Australian resident such as the applicant who claims to have suffered damage in the jurisdiction of New South Wales, such an existing law is recognised by Article 14 2. and that state parties are recognising that where there is existing notorious laws that permit civil claims for acts of torture abroad, they can continue to have effect.

The background to Article 14 at the time and, in particular, Article 14 2. is that by 1984 the United States had a well‑known and well‑worn civil jurisdiction for overseas acts of torture.  Further, it must have been notorious and well‑known that in civil law countries a criminal case will come automatically and necessarily with civil claims in favour of the victims and that a savings provision – and there is probably support for this proposition – state parties by agreeing to the savings provision must have intended that those provisions, when criminal cases would be launched against torturers who had committed torture outside the jurisdiction, it would have to come with compensation claims and they were not being barred by the Convention.

Could I turn nextly then to how we say it is wrong to conclude that even if that be right, the Foreign State Immunities Act does not preclude the submission of authority and that is the argument based on section 10(2)? Subsection (2) of section 10 of the Foreign States Immunities Act provides that submission can occur “whether by agreement or otherwise” and subsection (2) of section 3 makes it plain that “agreement” here includes treaty.  If one has resort to paragraph 79 of the Australian Law Reform Commission Report which predated the Act, and if your Honours wish to find it we have provided it in tab 9 and it appears at page 284.  The relevant sentences there at paragraph 79 on the page are:

There are a number of multilateral treaties in which parties either explicitly or (arguably) impliedly waive foreign state immunity.  The most important of these are referred to in Chapter 2.  In any case, Australia may become a party to such treaties, bilateral or multilateral, in the future.  Thus the legislation should make provision for submission by way of treaty which may affect both the foreign state itself and its political subdivisions and separate entities.

Hence, we say whilst case law in Australia has not dealt with the matter, the proper interpretation of section 10(2) is that by treaty a state party can waive and, in effect, submit to the jurisdiction of the courts of New South Wales and if our construction of Article 14 be correct, then there must be regarded to have been such a waiver of immunity or submission to courts in Australia by the state party being the People’s Republic of China.

A very similar submission was upheld by the House of Lords in Pinochet (No 3).  There it was a question of what is the effect of the Torture Convention’s grant of criminal jurisdiction over torturers who may have committed their acts overseas.  There the Lords held that in such a case the grant of jurisdiction must be regarded as being coming with the submission to the jurisdiction of the court so as to preclude state immunity.  To give your Honours perhaps the best reference in that regard, which would be analogous, in the judgment of his Lordship, Lord Saville, and the authorised report at 267B, his Lordship said that:

Each state party has agreed that the other state parties can exercise jurisdiction over alleged official torturers found within their territories . . . and thus to my mind can hardly simultaneously claim an immunity from extradition or prosecution that is necessarily based on the official nature of the alleged torture.

The contention would be that if Article 14 does grant civil jurisdiction, then the other state parties must be regarded as having agreed to New South Wales in this case having such civil jurisdiction and thereby have impliedly waived or submitted by agreement to such jurisdiction.  Your Honours, could I move to question 3 and this is the question, may I point out to the Chief Justice, that was certainly run below and rejected below.  This is the proposition that ‑ ‑ ‑

FRENCH CJ:   All the remaining questions relate to the construction of section 3.

MR DUBLER:   Correct, more or less, yes.

FRENCH CJ:   Paragraph (c) of subsection (3).

MR DUBLER: Yes, and/or section 9, but section 3 being a definitional aspect of section 9. What I wish to focus on in particular for reasons of time is the words “in his or her public capacity” as appears in section 3(3)(b) of the Foreign States Immunities Act.  It applies to a head of state.  This would be question 3 in our outline of argument.

The proposition is that, and there is a wealth of support for it, firstly, international law does not recognise acts of torture as an official function of the state for the purposes of the law of state immunity.  As has been noted, support for that proposition can be found in no less than four Lords of the House of Lords, including Lord Nicholls and Lord Steyn in Pinochet (No 1) and Lord Browne-Wilkinson and Lord Hutton in Pinochet (No 3).  The contrary result, of course, was in the unanimous decision of the House of Lords in Jones which was followed by the Court of Appeal. 

The first matter we make mention of is that there is in the jurisprudence worldwide support for the contrary proposition.  If I could take on board and deal directly with some of what we would say are the errors of the basal reasoning of the House of Lords in Jones and the Court of Appeal.  Firstly of prominence in the Court of Appeal below was the proposition that whatever may be the position under international law, the position under the Commonwealth statute is clear and that one does not get to have resort to international law. 

With respect, the Chief Justice did not greatly focus on the words “in his or her public capacity”.  “Public capacity”, those words, should be seen as running parallel with the concept of functional immunity at international law.  Whether an act is in a public capacity should be regarded as ambiguous and not so clear as to go without saying.  Further, the words “in his public capacity” is not in the UK statute when considered by the House of Lords in Jones and so Jones’ Case in that regard would be distinguishable.

Secondly, the learned President below and the Chief Justice were influenced by the proposition that the Act must have a fixed meaning and cannot be so plastic as to vary with developments in international law.  We would say the core answer to that proposition is that prior to 1985 and the passing of the statute, there was a well‑known principle that core jus cogens crimes cannot be acts for which state immunity is granted. 

For example, one can trace that proposition way back to 11 December 1946 where the General Assembly of the United Nations adopted the principles of the Nuremberg judgment and charter which includes the proposition that if a German official commits crimes against humanity, including in times of peace and including against a fellow German citizen, there is no defence of official capacity, including in the face of a foreign tribunal made up of the four allied powers, and that at least from 1980, in the United States Federal Court decision of Filártiga, acts of torture have been assimilated with crimes against humanity for the purposes of state immunity.

Finally, much has been made of the alleged inconsistency in Jones in the Court of Appeal between saying acts of torture must be official acts but cannot be, we would say, acts in a public capacity for the purposes of state immunity and that that conflict cannot be reconciled.  We will try and encapsulate it as best we can in short form.  Why that argument is

sustainable is that there are two different principles involved.  One essentially is looking at the realm of a factual situation.  Under the Torture Convention, as a matter of fact, what makes it an international offence is that the official has abused state power. 

When one turns to the principles of international law of functional state immunity, one is looking to the legal characterisation of that act.  Whilst, undoubtedly, factually, state power has been abused, the proposition is that it is a matter of international law.  It should not be recognised as an official state function for which immunity is granted, that the Torture Convention essentially says that if you commit an act of torture by abusing state power, you become an outlaw.  You become an international outcast.  Hostis humani generis is the Latin phrase, and such a person cannot claim state functional immunity because that is based upon respect for and not content for international law.

FRENCH CJ:   Yes, thank you, Mr Dubler.  We will not need to call on you, Mr Burmester.

This application for special leave to appeal against a decision of the Court of Appeal, upholding the application of the Foreign States Immunities Act 1985 (Cth) in proceedings against the former President of the People’s Republic of China and others for alleged torture and abuse of human rights, raises a number of questions. The first two questions are:

whether upon its proper construction Article 14 of the Convention against torture requires states parties to provide rights to redress in compensation in respect of acts of torture committed in other states; and

whether, if Article 14 is properly so construed, the People’s Republic of China, being a signatory to the Convention, is taken to have submitted to the jurisdiction of the Supreme Court within the meaning of section 10 of the Foreign States Immunities Act. 

These questions were not raised by the applicant at first instance or in the Court of Appeal.  This Court is unassisted by any consideration of these questions in the courts below or any examination in those courts of what materials might be relevant to those questions.  They do not provide a proper basis for the grant of special leave.

The other questions raised by the applicant relate to the construction and application of section 3(3) of the Foreign States Immunities Act which provides a definition of the term “foreign State” extending, inter alia, to the head of state in his or her public capacity.  In our opinion, the application so far as it relates to the construction and application of that provision is unattended with sufficient prospects of success to warrant the grant of special leave. 

Special leave will be refused.

MR BURMESTER:   We do not seek any costs, your Honour.

FRENCH CJ:   It will just be special leave refused.

AT 12.16 PM THE MATTER WAS CONCLUDED