Supreme Court New South Wales Medium Neutral Citation: Li v Zhou [2013] NSWSC 12 Hearing dates: 19 November 2012 Decision date: 25 January 2013 Before: McCallum J Decision: Plaintiffs' application to have default judgment entered dismissed; proceedings dismissed. Catchwords: JURISDICTION - immunity - Foreign States Immunities Act 1985 (Cth) s 10 - whether first defendant has submitted to jurisdiction by agreement - requirement for agreement to be express or clearly implied - whether Convention Against Torture Art 14 clearly implies agreement to submit to jurisdiction Legislation Cited: Foreign States Immunities Act 1985 (Cth) Cases Cited: Jones v Saudi Arabia [2007] 1 AC 270 Pan v Bo [2008] NSWSC 961 Yan Xie v Chen Shaoji [2008] NSWSC 224 Zhang v Zemin [2008] NSWSC 1296 Zhang v Zemin [2010] NSWCA 255; (2010) 79 NSWLR 513 Texts Cited: Australian Law Reform Commission Report 24 on Foreign State Immunity (1984) Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984 Category: Principal judgment Parties: Jie Lin Li (first plaintiff) Jing Xiao Chen (second plaintiff) Chang Zhi Yue (third plaintiff) Yong Kang Zhou (first defendant) Attorney-General of the Commonwealth (second defendant) Representation: Counsel: R Dubler SC, R White (plaintiffs) H Burmester QC (second defendant) Solicitors: Gibson Lawyers (plaintiffs) Australian Government Solicitor (second defendant) File Number(s): 2008/288056 Judgment 1HER HONOUR: These proceedings raise an interesting question as to the jurisdiction of this Court to determine claims for damages arising from assaults allegedly committed by government officials in the People's Republic of China. The plaintiffs are three Chinese nationals, now residents of Australia. Each claims whilst in China to have been arrested, detained and subjected to persistent physical and mental persecution by reason of their having been practitioners of Falun Gong. By these proceedings, they seek damages for ongoing injuries and disabilities arising from that conduct. Relevantly for that purpose, the plaintiffs allege that the conduct giving rise to their claims amounted to torture under international law. 2The first defendant, Yong Kang Zhou, is sued in his capacity as former secretary of the Chinese Communist Party of Sichuan Province, the Minister of Public Security of the People's Republic of China and head of the Central Political and Legislative Committee. It is alleged that, in those capacities, he planned and ordered the systematic arrest, interrogation, detention and torture of Falun Gong practitioners. 3The proceedings were commenced by statement of claim filed on 7 December 2009. The statement of claim has been served on Yong Kang Zhou in accordance with s 24 of the Foreign States Immunities Act 1985 (Cth). He has not entered an appearance in the proceedings and the plaintiffs now seek default judgment against him. This judgment determines that application. 4At the outset of the hearing, the Attorney-General of the Commonwealth was granted leave to intervene in the proceedings, as she is entitled to be in cases of this kind: see Yan Xie v Chen Shaoji [2008] NSWSC 224 at [7]-[34]; Pan v Bo [2008] NSWSC 961 at [13]-[18]; Zhang v Zemin [2008] NSWSC 1296 at [4] and on appeal at [2010] NSWCA 255; (2010) 79 NSWLR 513 at [28]. The Attorney-General contends that the defendant, being a foreign State within the meaning of the Act, enjoys immunity from the jurisdiction of this Court and that the proceedings must accordingly be dismissed. 5The issue of jurisdiction should be determined as a preliminary matter: Zhang v Zemin per Spigelman CJ at [33]; Allsop P and McClellan CJ at CL agreeing at [157] and [174] respectively. 6The plaintiffs accept that the first defendant, being part of the executive government of the People's Republic of China, falls within the definition of a foreign State for the purposes of the Foreign States Immunities Act: see s 3(3) of the Act. 7Section 9 of the Act confers general immunity on a foreign State from the jurisdiction of this court, as follows: Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding. 8Whilst it is, with respect, clear enough in any event, there is authority to confirm the proposition that, where s 9 applies, the court is deprived of jurisdiction to hear and determine the matter. That is accordingly an issue which must be resolved by the court, whether or not the point has been taken by the defendant: Zhang v Zemin at [30]-[45]. 9The plaintiffs submitted that the immunity conferred by s 9 does not arise in the present case for two reasons. First, it was submitted that, in conformity with international customary law, s 9 should be construed not to extend immunity to civil claims for acts of torture. The plaintiffs acknowledged that the Court of Appeal rejected that proposition in Zhang v Zemin and in that circumstance the submission was put only formally. I am bound to reject it, in accordance with the decision in Zhang v Zemin at [114]-[155] per Spigelman CJ; McClellan CJ at CL agreeing at [174]; and see the additional reasons of the President (in support of the same conclusion) at [157]-[173]. 10The second ground for the contention that this Court has jurisdiction to determine the plaintiffs' claims notwithstanding s 9 of the Act is that the claim falls within the exception in s 10. That issue was not raised in Zhang v Zemin and has evidently not previously been determined. 11The plaintiffs relied upon s 10(2) as the source of the relevant exception to the general immunity conferred by s 9. That provision needs to be read in conjunction with s 10(1), which I would construe as the operative provision: (1) A foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section. (2) A foreign State may submit to the jurisdiction at any time, whether by agreement or otherwise, but a foreign State shall not be taken to have so submitted by reason only that it is a party to an agreement the proper law of which is the law of Australia. 12The plaintiffs submitted that, as a State party to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, China has submitted to the jurisdiction of Australian courts to determine any claim amounting to an allegation of torture as defined in the Convention and under international customary law. 13The submission rested critically on the terms of Article 14 of the convention, which states: 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, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. 2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law. 14The plaintiffs submitted that by ratifying the treaty, China has agreed to the assumption of such civil jurisdiction by Australia, and that this amounts to or necessarily entails an agreement to submit to such jurisdiction so as to fall within s 10 of the Act. 15The plaintiffs provided a large amount of material going to the issue of the correct interpretation of Art 14 as a matter of international law and addressed that issue at length in written and oral submissions. Without derogating from the care and detail with which that issue was addressed by the parties, I think the question of jurisdiction in the present case ultimately raises a relatively narrow issue which does not require me conclusively to resolve any debate as to what Art 14 requires of a party State as a matter of international law. 16The question whether the adoption of Art 14 impliedly entailed submitting to the jurisdiction of Australian courts for the purposes of the Act is a question of statutory construction. The task is to determine whether s 10 contemplates that submission or waiver may be made in the manner contemplated in the plaintiffs' submissions. 17The proper approach to the construction of the Act was considered by Allsop P in Zhang v Zemin. Whilst the decision in that case was concerned with the construction of s 9, the President's remarks also inform the construction of s 10. His Honour said: 158 The process of statutory interpretation of the Foreign States Immunities Act 1985 (Cth) (the "Act") must, of course, be undertaken in its context. That context includes not only the fabric of international law against which the Act was passed, but also the valuable Australian Law Reform Commission Report (ALRC Report 24 on Foreign State Immunity). What is plain from the text of the Act in its context is that the extent of the immunity of foreign States and of any exception thereto was to be determined by reference to the words of the Act. The clear words of s 9 of the Act reflect that intended control. 159 The subject matter of the Act lies at the heart of the foreign relations of Australia as a nation that are the legislative concern of the Commonwealth. It is unnecessary to repeat the expressions of this character in the cases, many of which are referred to by the Chief Justice. The clearly expressed intention of the Parliament to prevent litigation against foreign States, except as provided by the Act, is to be recognised against the importance of that subject matter. Litigation of a criminal character can ultimately be controlled by the powers and capacities of the Attorney-General and the prosecuting authorities. Civil litigation, if within the jurisdiction of the courts, is a matter between the litigants to be resolved by the courts. The courts (whether exercising federal or State jurisdiction) have a constitutional duty as the third and equal branch of government in the relevant polity to resolve and quell such disputes. Interference with that task by the other branches of government, or either of them, would raise Constitutional issues. Thus, to the extent that Parliament is permitted to legislate as to the existence or not of immunity from jurisdiction in respect of a subject matter of such central importance to the external relations of the nation, the words of s 9 ("Except as otherwise provided by or under this Act") assume governing importance. 160 It is unnecessary for these additional comments to refer at any length to the place and influence of international law in the construction and interpretation of domestic statutes. It suffices to say that the task at hand is the ascertainment of the meaning of the domestic statute, which, of course, may or may not be affected by the content or meaning of a norm of international law or an international instrument. 161 Here, the Act is not to be interpreted as an instrument of plasticity, including or not including immunity depending on the development of international law. It is an Act, set against the background of lack of clarity at the time in the underlying principles of foreign state immunity, which sought, by its terms, to lay down, as a matter of legislative expression, the extent and restrictions on the immunity. See in particular, the ALRC Report at [34] and [62]. ... 172 If the Commonwealth Parliament wishes to remove the immunity of foreign States for civil liability for torture such as by legislating in accordance with Article 14 of the Torture Convention, it must amend the Act." 18Those additional remarks (the Chief Justice evidently having written the first judgment) were not expressly endorsed by the other members of the Court. However, they are not inconsistent with the analysis of the Chief Justice and are, with respect, unexceptionable statements of principle. 19The following paragraph of the ALRC Report also bears on the present question, illuminating what the President called "the background of lack of clarity at the time in the underlying principles of foreign State immunity" which the Act sought to remedy by laying down "as a matter of legislative expression, the extent and restrictions on the immunity": "79. ... 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 (see para 13, n 72). [This earlier paragraph describes conventions relating to the laws of the sea and to aviation, and has no bearing on this matter.] 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. The provision should also extend to cover a unilateral declaration evidencing an agreement to submit, even though this may not (for example, for lack of consideration) constitute a contract. The need for clarity and certainty entails that a waiver be express, rather than being to inferred [sic] from such things as the fact that Australian law was chosen, or determined to be, the proper law of the contract. Similarly the fact that a foreign state has agreed to submit a dispute to arbitration in Australia need not imply a submission to the local courts as to the merits of the dispute." 20It was clearly contemplated at the time of drafting the Act that submission to jurisdiction or waiver of immunity may be effected by treaty. Hence the language of s 10: "at any time, whether by agreement or otherwise". That wording also comprehends the long-standing norm preserved in subsection 10(6) that "a foreign State may submit to the jurisdiction in a proceeding by: (a) instituting the proceeding; or (b) intervening in, or taking a step as a party to, the proceeding." Understood in that context, the words "whether by agreement or otherwise" in subsection 10(2) should not be read as adopting a loose approach to waiver. On the contrary, the ALRC expressed the view that "the need for clarity and certainty entails that a waiver be express". Section 10 does not, in the event, provide that submission must be express, and Art 14 is clearly not an express submission or waiver. Nevertheless, a requirement that submission or waiver, if implied, be at least clearly made can be inferred from the text of the Act understood in its context in the manner explained in Zhang and from the context provided by the ALRC Report. 21For those reasons, I would construe s 10 as requiring that any submission to jurisdiction or waiver of immunity by a foreign State be either express or clearly implied. 22It remains to determine whether, by subscribing to a treaty including an article in the terms of Art 14, China has impliedly submitted to the civil jurisdiction of this Court in respect of acts of alleged torture committed anywhere. In my view, it is unnecessary for that purpose to consider the drafting history of the Article or the international context within which it evolved. It is enough to consider what is entailed in giving the text of Art 14 the function sought to be attributed to it by the plaintiffs to see that, even taken at its highest, it does not imply any waiver of immunity or submission to jurisdiction. 23Article 14 is on its face an inward-looking provision. It has been described as "sparse": Jones v Saudi Arabia [2007] 1 AC 270 at [25] per Lord Bingham of Cornhill. It does not address how compensation might be sought, against whom or in what circumstances. 24It is instructive to compare the provisions of Art 14 with those concerned with criminal jurisdiction. Art 5 articulates the following comparatively clear and expansive obligations: 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: (a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any State mentioned in paragraph 1 of this article. (My emphasis) 25Art 5 is preceded by Art 4, which also uses clear language to require each State to "ensure that all acts of torture are offences under its criminal law". 26To accept the plaintiffs' contention, one would have to construe Art 14 as imposing on Party States an obligation to provide a system for bringing civil proceedings against any alleged tortfeasor. That necessarily entails construing the Article as requiring each Party State to confer upon its judicial branch of government jurisdiction to determine such claims regardless of the location of the alleged act or tortfeasor. Whether or not such obligations are implied in Art 14 is not clear. Its language is to be contrasted with the clear mandate of Art 5 to a Party State to "take such measures as may be necessary to establish its jurisdiction". The contrast in approach is readily explained by the juridical distinction between criminal and civil proceedings considered by Allsop P in Zhang at [159]. As his Honour noted, criminal proceedings can properly be controlled by the powers and capacities of the Attorney-General and the prosecuting authorities whereas civil litigation is brought forward privately and stands to be resolved by the courts without interference from the other branches of government. 27Further, even if Art 14 is to be construed as imposing an obligation on a Party State to establish or assert jurisdiction over such disputes, it does not clearly follow, in my view, that each Party State should be taken to have thereby agreed to waive any express statutory immunity under the law of another Party State or to submit to whatever civil jurisdiction might be assumed by another Party State. 28Those considerations inform the proper construction of s 10 of the Foreign States Immunities Act, which is the critical issue raised by the present application. For the reasons explained above, I am of the view that any submission to jurisdiction by agreement as contemplated by that section, if not in express language, must at least emerge by clear implication. The matters considered by Allsop P in Zhang at [159] militate against the conclusion that subscription to Art 14 of the torture treaty of itself amounts to implied agreement to submit to a civil jurisdiction from which statutory immunity is otherwise enjoyed. As his Honour noted, the intention of the Parliament to prevent litigation against foreign States, except as provided by the Act, is clearly expressed and must be understood in the context of the importance of that subject matter. 29I am not satisfied that agreement to submit to this Court's jurisdiction under s 10 of the Foreign States Immunities Act is clearly implied by subscription to Art 14 of the torture treaty. In light of that conclusion, it is neither necessary nor appropriate to express any view as to the operation of Art 14 or the obligations it imposes on Party States under international law. 30Section 27 of the Foreign States Immunities Act provides that judgment in default of an appearance shall not be entered against a foreign State unless the court is satisfied that the foreign State is not immune. I am not so satisfied. Further, it follows from my conclusion that the first defendant is immune from the jurisdiction of this Court that the proceedings must be dismissed. 31The orders are: (1)That the plaintiffs' application for default judgment be dismissed. (2)That the proceedings be dismissed. ********** 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. Decision last updated: 25 January 2013