New South Wales Supreme Court CITATION : ZHANG v ZEMIN & ORS [2008] NSWSC 1296 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 15 September 2008 JUDGMENT DATE : 14 November 2008 JUDGMENT OF : Latham J 1. The Attorney General is granted leave to appear as an intervenor in the proceedings. DECISION : 2. The question of the jursidiction of the Court over the Defendants is determined as a preliminary question pursuant to Part 28 of the Uniform Civil Procedure Rules 2005. 3. The defendants are immune from the jurisdiction of the Court. CATCHWORDS : Plaintiff seeks default judgment against defendants, officials of Peoples Republic of China - intervention of Attorney General (Cth) not opposed - Foreign States Immunity Act 1985 (Cth) - admissibility of s 40 certificate - whether defendants immune from jurisdiction of court. Foreign States Immunities Act 1985 (Cth) (FSI Act) LEGISLATION CITED : Commonwealth Evidence Act 1995 Evidence Act 1995 (NSW) Cuiyang Zhang - Plaintiff PARTIES : Ziang Zemin - 1st Defendant Luo Gan - 2nd Defendant 610 Office (Falun Gong Control Office) - 3rd Defendant FILE NUMBER(S) : SC 20331/2004 COUNSEL : DKL Raphael - Plaintiff H Burmester QC - Defendants SOLICITORS : Adam Slattery - Plaintiff Australian Government Solicitor - Defendants - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION COMMON LAW LIST LATHAM J 14 NOVEMBER 2008 20331/2004 CUIYING ZHANG v JIANG ZEMIN & ORS. JUDGMENT 1 HER HONOUR : The Plaintiff filed a Statement of Claim on 15 September 2004 against Jiang Zemin, the former President of the Peoples Republic of China (the first defendant) and the 610 Office (Falun Gong Control Office) (the second defendant), claiming damages for acts of torture and human rights abuses allegedly committed by the defendants upon the plaintiff on various occasions between December 1999 and August 2000 while the plaintiff was in China. 2 On 14 March 2007, the plaintiff filed an Amended Statement of Claim joining a third defendant, Luo Gan, a member of the Political Bureau of the Communist Party of China, and an office holder of two committees of the Chinese Government. 3 The plaintiff requested transmission of the statement of claim to the Commonwealth Attorney General's Department for service overseas in May 2007. On 24 July 2007, service was effected upon an attaché of the Embassy of the People's Republic of China in Canberra, pursuant to the provisions of the Foreign States Immunities Act 1985 (Cth) (FSI Act). Specifically, s 24 of the Act provides for service of an initiating process through diplomatic channels. 4 On 21 January 2008, there being no response to the statement of claim, the plaintiff filed a Notice of Motion seeking default judgment. The Commonwealth Attorney General filed a Notice of Motion on 5 February 2008, seeking leave to intervene in the proceedings for the purposes of asserting the immunity of the defendants from the jurisdiction of the Court under the FSI Act. The intervention of the Commonwealth Attorney General was not opposed by counsel appearing on behalf of the plaintiff. However, the plaintiff's counsel resisted the admission of a certificate under s 40 of the FSI Act and disputed the defendants' immunity. I pass then to a consideration of the substantive issues raised by the Attorney General's Notice of Motion. They are :- i) Is the s 40 certificate admissible ? ii) Does immunity apply to the defendants ? The Admissibility of the s 40 Certificate. 5 Section 40 of the FSI Act relevantly provides :- (1)The Minister for Foreign Affairs may certify in writing that, to the purposes of this Act: (a) …………………………………………………………………… (b) …………………………………………………………………. (c) A specified person is, or was at a specified time, the head of, or the government or part of the government of, a foreign State or a former foreign State (d) …………………………………………………………………….. (2) ………………………………………………………………….. (3) ………………………………………………………………….. (4) ………………………………………………………………….. (5) A certificate under this section is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters. 6 On 7 April 2008, the Minister for Foreign Affairs issued a certificate pursuant to s 40(1)(c), stating that the first defendant was the President of the People's Republic of China, General Secretary of the Communist Party of China (CPC) and Chairman of the Central Military Commission, that the second defendant was an organ of the Chinese Government established to implement the Government's policy towards the Falun Gong, and that the third defendant was a member of the CPC Political Bureau, Deputy Secretary of the Political and Legislative Affairs Committee of the CPC Central Committee, State Councillor and Chairman of the National Frontier Defence Committee. 7 The certificate further stated that the Minister for Foreign Affairs had considered the fact that the Chinese Government had asserted to his Department that the defendants were immune from prosecution under Australian law, by virtue of their position and function in the Chinese Government ; had further considered the leading role of the CPC in the Government of the People's Republic of China, as established in practice and by the Constitution of that country ; had further considered the fact that the Australian Government had long recognized CPC officials and organs as part of the Government of the People's Republic of China and that there was international recognition to the same effect ; and had considered the definition of "foreign state" in the FSI Act. Finally, the Minister for Foreign Affairs certified that the first, second and third defendants were all part of the government of a foreign State within the meaning of the FSI Act at the time of the events giving rise to the plaintiff's statement of claim. 8 The significance of the certificate must be considered in the context of the regime established by the FSI Act, which is considered further below. The Act codifies the immunity of foreign States from jurisdiction in Australia. The immunity extends to any part of the government of a foreign State, including the executive government and foreign government officials ; see ss 3(3) and 22. 9 Once admitted, the certificate is conclusive evidence of the matters stated therein. Thus, the plaintiff challenges the admissibility of the certificate in order to avoid the admission of evidence, which cannot be contradicted. That evidence may constitute a complete answer to the plaintiff's argument, which seeks to refute the defendants' claim to immunity. 10 The plaintiff's submissions on the issue of admissibility appear to refer to the Commonwealth Evidence Act 1995. However, these proceedings are governed by the laws of NSW. It is appropriate therefore to have regard to the Evidence Act 1995 (NSW). It is submitted that the matters stated in the certificate are second hand hearsay, that there is no proof of the Minister's signature, that the certificate is not a Commonwealth record, that it is not a business record (s 69) and it is not admissible under Division 2 of Part 4.3 (Facilitation of Proof ; Matters of Official Record). 11 The plaintiff did not refer to s 48 of the Evidence Act, which is a complete answer to these objections. Section 48(1) provides that evidence of the contents of a document may be adduced by tendering the document. The further methods for proving the contents of a document set out in s 48(1)(a) to (f) do not apply in the circumstances of this case, where the original certificate has been tendered and the document is not a tape recording or similar record. Section 150(3) of the Evidence Act establishes a presumption as to the signature of an office holder under an Australian law. Therefore, in the absence of evidence to the contrary, the certificate bears the signature of the Minister for Foreign Affairs. Characterisations of the certificate as a business record, an official record, or a Commonwealth record have no application. 12 Moreover, s 40(5) of the FSI Act itself provides that the certificate "is admissible as evidence of the facts and matters stated in it". The plaintiff's objection to the certificate cannot be upheld. The Immunity of the Defendants 13 The admission of the certificate, as already noted, is potentially fatal to the plaintiff's cause of action. The plaintiff submits that the acts of torture perpetrated upon her by the defendants, because of her adherence to Falun Gong, were not carried out in a public or official capacity. In other words, it is contended that the acts were the private acts of persons who occupied certain offices in the Peoples Republic of China and the CPC. In addition, it is submitted that immunity cannot prevail in the face of the generally recognised norm of international law prohibiting torture. The Attorney General submits that the contents of the certificate, which now constitute evidence in the proceedings, together with the operation of the FSI Act, confer immunity on the defendants. Further, the Attorney General maintains that there is no exception to immunity provided by the Act, or by international law, for acts of torture carried out in an official capacity, and that the acts alleged against the defendants clearly were of an official nature. 14 I turn to the operation of the Act. 15 Section 9 of the Act relevantly provides :- Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a [civil] proceeding. 16 By the operation of s 3(3), a foreign State includes the head of a foreign State, or of a political subdivision of a foreign State, in his or her public capacity, and includes the executive government or part of the executive government of a foreign State, or of a political subdivision of a foreign State, including a department or organ of the executive government of a foreign State or subdivision. Sections 9 and 3(3) extend immunity to the defendants by virtue of the s 40 certificate, which is conclusive evidence of the defendants' status as foreign State officials. 17 The only exceptions to the immunity granted by s 9 are contained within ss 10 – 21 of the Act. The plaintiff does not contend that her cause of action falls within any of these exceptions. 18 Section 27 of the Act provides that a default judgment shall not be entered unless the court is satisfied that, in the proceeding, the foreign State is not immune (assuming that there is proof of service and the requisite time for appearance has expired). The plaintiff maintains that s 27 allows for the operation of a discretion in the Court when deciding whether the servants or agents of a foreign State are entitled to immunity in accordance with its provisions, and that such a discretion arises in this case. In my view, that submission must be rejected. 19 It is of some significance that s 27 is expressed in the negative, that is, the court must be satisfied that the foreign State is not immune. There is no obligation on a court under the Act to be satisfied that a foreign State is immune, rather the Act itself establishes immunity, subject only to the limited exceptions for which the Act provides (s 9). In other words, s 27 contemplates that the relevant foreign State is immune, according to the terms of the Act itself, unless there is some feature of the cause of action or the identity of the defendant(s) in the particular proceedings that takes the foreign State outside the operation of the Act. As was explained by Lord Bingham in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UK HL 26 ; [2006] 2 WLR 1424 (Jones) at [33], "a state is either immune from the jurisdiction of a foreign court or it is not. There is no half-way house and no scope for the exercise of a discretion." 20 The principles thus enshrined within the Act are consistent with international law on the subject of foreign State immunity. 21 In Governor of Pitcairn v Sutton [1995] 1 NZLR 426 at 428, Cooke P described the principle of foreign State immunity in these terms :- Sovereign immunity is a doctrine applying to sovereign states or, as it is sometimes expressed, independent sovereign states. In general at common law, reflecting international law, such a state will not be impleaded in the courts of another country .. against its will and without its consent; the exercise of jurisdiction is seen as incompatible with the dignity and independence of the foreign state. 22 Foreign State immunity in international law promotes comity and good relations between States through mutual respect for State sovereignty; see Jones per Lord Bingham at [18] citing with approval Al Adsani v United Kingdom (2002) 34 EHRR 273. 23 The immunity extends to members of the foreign government through whom the State acts; see R v Bow Street Metropolitan Stipendiary Magistrate, Ex-parte Pinochet Ugarte (No. 3) [2000] 1 AC 147 (Pinochet) ; Propend Finance Pty Ltd v Sing (1997) 111 ILR 611 (Propend). In Jones, Lord Bingham said at [10] :- There is … a wealth of authority to show that in such case [where proceedings are brought against the servants or agents, officials or functionaries of a foreign state in respect of acts done by them as such in the foreign state] the foreign state is entitled to claim immunity for its servants as it could if sued itself. The foreign state's right to immunity cannot be circumvented by suing its servants or agents. Lord Bingham went on to cite extensive UK authorities in support of that proposition, before noting that the UN Convention of 2004 defined "state" to mean "representatives of the state acting in that capacity". 24 It is not always a straightforward matter to determine when a representative of a state can be said to be acting "in that capacity". Lord Bingham noted that there may be cases where the conduct of an individual, who was a servant or agent of the state, lacked a connection with the state sufficient to entitle it to a claim of immunity. However, "international law does not require, as a condition of a state's entitlement to claim immunity for the conduct of its servant or agent, that the latter should have been acting in accordance with his instructions or authority." (per Lord Bingham in Jones at [12]). 25 The distinction between unlawful or objectionable acts carried out under the apparent authority of the state (in respect of which foreign state immunity applies), and unlawful acts carried out by persons who happen to be agents of the state (in respect of which foreign state immunity does not apply), has been recognised by the International Law Commission and the International Court of Justice : see The International Law Commission's Articles on State Responsibility (2002) by James Crawford and Democratic Republic of Congo v Uganda (unreported) 19 December 2005. The former is reflected in Lord Wilberforce's judgment in I Congresso del Partido [1983] 1 AC 244 at 272 :- It was argued …. that even if the Republic of Cuba might appear to be entitled to plead the state immunity, it should be denied that right on various grounds : that its acts were contrary to international law, or to good faith, or were discriminatory, or penal. …. These arguments do not arise, but I would wish to express my agreement with the judge … as to their invalidity. The whole purpose of the doctrine of state immunity is to prevent such issues being canvassed in the courts of one state as to the acts of another. 26 Lord Hoffman acknowledged in Jones at [66] and [68] the difficulty inherent in the formulation of the principle :- The traditional way of expressing this principle in international law is to say that the act of state officials acting in that capacity are not attributable to them personally but only to the state. Despite the undoubted authority for expressing the rule in this way, I do respectfully think that it is a little artificial to say that the acts of officials "are not attributable to them personally" and that this usage can lead to confusion, especially in those cases in which some aspect of the immunity of the individual is withdrawn by treaty, as it is for criminal proceedings by the Torture Convention. It would be strange to say, for example, that the torture ordered by General Pinochet was attributable to him personally for the purposes of criminal liability but only to the State of Chile for the purposes of civil liability. It would be clearer to say that the Torture Convention withdrew the immunity against criminal prosecution but did not affect the immunity for civil liability. I would therefore prefer to say, as Leggatt LJ did in Propend … , that state immunity affords individual employees or officers of a foreign state "protection under the same cloak as protects the state itself". But this is a difference in the form of expression and not the substance of the rule. What is important, however, is that, … , the provisions of the [Act] "fall to be construed against the background of those principles of public international law as are generally recognized by the family of nations". 27 The latter part of this aspect of the judgement of Lord Hoffmann is directly relevant to the plaintiff's argument in the instant case. Australia and the People's Republic of China are both signatories to the Torture Convention, Article 4 of which requires state parties to ensure that acts of torture are offences against the criminal law of the state parties. Article 1 of the Convention defines torture as "any act … at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity". It follows then, that an act of torture under the Convention is, by definition, an act committed by a public official or a person acting in an official capacity. 28 As Lord Bingham remarked in Jones at [19] :- It is, I think, difficult to accept that torture cannot be a governmental or official act, since under Article 1 of the Torture Convention torture must, to qualify as such, be inflicted by or with the connivance of a public official or other person acting in an official capacity. The claimant's argument encounters the difficulty that it is founded on the Torture Convention ; but to bring themselves within the Torture Convention may must show that the torture was (to paraphrase the definition) official; yet they argue that the conduct was not official in order to defeat the claim to immunity. 29 How then, does the plaintiff seek to establish that the acts of the defendants, which she acknowledges as acts of torture under the Convention, were not carried out in an official capacity ? The short answer is that there is nothing contained within the Statement of Claim that provides a foundation for such a finding. To the contrary, the particulars tend to support the characterisation of the relevant acts urged upon the Court by the Attorney General. 30 Each of the five incidents of trespass to the person alleged in the Statement of Claim involved the arrest of the plaintiff "for being a Falun Gong practitioner". Each of them refer to the imprisonment of the plaintiff in a detention centre or an army camp, where the alleged acts of torture took place. By their very nature, these activities were "exercises of police, law enforcement and security powers [and therefore] .. exercises of governmental authority and sovereignty." : Bouzari v Islamic Republic of Iran (2002) 124 ILR 428 at [28]. 31 The plaintiff acknowledges that the first defendant was, at the relevant time, the President of the Peoples Republic of China, and that he ordered the persecution of Falun Gong practitioners. The second defendant is an office of the CPC, charged with carrying the policy of the first defendant into effect. The third defendant is an office-holder of the second defendant. The pleadings thereby recognise that these individuals and an agency have implemented State policy, that is, they have acted as agents of the State. 32 It is no answer to this proposition to say that there is no evidence that the defendants were acting within the scope of the authorisation of the CPC or the Peoples Republic of China, or that the s 40 certificate does not assert that the defendants were acting under the authority of the State. The role of the s 40 certificate is limited by the terms of s 40(1) which specifies what the Minister may certify. The fact that the defendants were authorised to so act is not one of the matters that may be certified. The question is whether the Court is satisfied, on all of the evidence before it, that the defendants, as part of a foreign State, are not immune. 33 This is not one of those "borderline" cases to which Lord Bingham referred in Jones. The alleged acts of torture by the defendants were undoubtedly connected with the policy of the Peoples Republic of China and of the CPC towards the Falun Gong, however odious those practices may be to the community of nations that seek to uphold the Torture Convention. By way of analogy with the second cause of action in Jones, "the [three] defendants … were public officials. The conduct complained of took place in police or prison premises and occurred during a prolonged process of interrogation." Jones at [11] 34 Accordingly, the Court is not satisfied that defendants are not immune. There is nothing about the circumstances under which the conduct of the defendants was carried out to suggest that they were not acting as agents of the Peoples Republic of China. 35 The second limb of the plaintiff's argument has been determined against the plaintiff in a number of decisions which cannot be relevantly distinguished and which this Court should follow. Those cases establish that, whilst there are limited exceptions to State immunity, such as the commercial activities of foreign States, there is no exception to foreign State immunity for civil proceedings alleging acts of torture committed in a foreign State; see Jones; Fang and Ors v Zemin and Ors (HC AK CIV 2004-404-5843, unreported, 21 December 2006) (Fang) ; Al-Adsani ; Bouzari. 36 In Jones, Lord Bingham dealt with the claimant's argument in that case (materially indistinguishable from the plaintiff's argument here) in the following terms at [24] – [27] :- First, the claimants are obliged to accept … that state immunity .. can be claimed for a serving foreign minister accused of crimes against humanity. Thus, even in such a context, the international law prohibition of such crimes, having the same standing as the prohibition of torture, does not prevail. It follows that such a prohibition does not automatically override all other rules of international law. The International Court of Justice has made plain that breach of a jus cogens norm of international law does not suffice to confer jurisdiction ( Democratic Republic of Congo v Rwanda (unreported) 3 February 2006, par. 64). As Hazel Fox put it ( The Law of State Immunity (2002) p 525) "State immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement." ……………………………………………………………………… Secondly, article 14 of the Torture Convention does not provide for universal civil jurisdiction. …………………………………………………………………….. Thirdly, the UN Immunity Convention of 2004 provides no exception from immunity where civil claims are made based on acts of torture. …… Despite its embryonic status, this Convention is the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases, and the absence of a torture or jus cogens exception is wholly inimical to the claimant's contention. …………………………………………………………………….. Fourthly, there is no evidence that states have recognized or given effect to an international law obligation to exercise universal jurisdiction over claims arising from alleged breaches of peremptory norms of international law, nor is there any consensus of judicial and learned opinion that they should. 37 Jones was followed by Randerson J in the High Court of New Zealand in Fang. Randerson J referred to Lord Bingham's approval of Al-Adsani, as authority for the proposition that there is no "firm basis for concluding that, as a matter of international law, a state no longer [enjoys] immunity from civil suit in the courts of another state where acts of torture [are] alleged." 38 Importantly, in the context of the approach that the plaintiff would have this Court take, Randerson J endorsed what Lord Hoffman said in Jones at [63], namely, that "it is not for a national court to 'develop' international law by unilaterally adopting a version of that law which, however desirable, forward looking and reflective of values it may be, is simply not accepted by other states." 39 Finally, in Bouzari the Court held at [63] that :- An examination of the decisions of national courts and international tribunals, as well as state legislation with respect to sovereign immunity, indicates that there is no principle of customary international law which provides an exception from state immunity where an act of torture has been committed outside the forum, even for acts contrary to jus cogens. Indeed, the evidence of state practice, as reflected in these and other sources, leads to the conclusion that there is an ongoing rule of customary international law providing state immunity for acts of torture committed outside the forum state. 40 Accordingly, the plaintiff's arguments fail. 41 I make the following orders and declaration :- 1. The Attorney General is granted leave to appear as an intervenor in the proceedings. 2. The question of the jurisdiction of the Court over the Defendants is determined as a preliminary question pursuant to Part 28 of the Uniform Civil Procedure Rules 2005. 3. The Defendants are immune from the jurisdiction of the Court. 10/12/2008 - Incorrect description of Counsel for Plaintiff in coversheet - Paragraph(s) N/A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.