Zhang v Jiang [Australia, New South Wales Court of Appeal]
| Jurisdiction | England & Wales |
| Judgment Date | 05 October 2010 |
| Date | 05 October 2010 |
| Court | Court of Appeal (Criminal Division) |
Australia, New South Wales Court of Appeal
(Spigelman CJ, Allsop P, McClellan CJ at CL)
State immunity — Jurisdictional immunity — Alleged violations of human rights — Torture — Claim in respect of torture allegedly committed outside the forum State — Whether defendants entitled to immunity when accused of violating a jus cogens rule — Officials — Whether immunity of State applicable to officials sued in respect of official acts — Foreign States Immunities Act — Requirement that court consider entitlement to immunity proprio motu
Human rights — Freedom from torture — Status of prohibition of torture as jus cogens— Whether limiting entitlement to immunity of foreign State — The law of Australia
Summary:2The facts:—The appellant claimed damages for acts of torture and human rights abuses allegedly committed in China between December 1999 and August 2000 by the three respondents, the former President of the People's Republic of China (the ‘PRC’), the Falun Gong Control Office, a State Organ of the PRC, and a member of the Political Bureau of the Communist Party of China (the ‘CPC’). The Attorney-General of the Commonwealth of Australia intervened in the proceedings and the Minister for Foreign Affairs and Trade submitted a certificate under Section 40 of the Foreign States Immunities Act (the ‘FSI Act’) certifying that the respondents were ‘all part of the government of a foreign State within the meaning of the FSI Act at the time of the alleged acts which form the basis of the plaintiff's claim’. The Supreme Court was required to decide two issues: (i) the admissibility of the Section 40 certificate; and (ii) whether immunity applied to the defendants. The Supreme Court found that the Section 40 certificate was admissible and that the respondents were immune from the Supreme Court's jurisdiction. The appellant appealed to the Court of Appeal of New South Wales.
The first ground of appeal was that the Supreme Court had been wrong to conclude that the respondents were entitled to immunity, because they had not invoked immunity. The Attorney-General contended that the Court had been required to give effect to the respondents' immunity whether it was invoked or not.
The second ground of appeal was that the Supreme Court had erred in concluding that the first and third defendants were entitled to immunity because the first defendant was not the head of a foreign State, and the third defendant was not an officer within the executive government or part of the executive government of a foreign State, within the meaning of Section 3(3) of the FSI Act (para. 52).3
The Attorney-General submitted that officials, including former officials, of a foreign State were included within the concept of ‘foreign State’ within the meaning of Section 3(1) of the FSI Act, and alternatively, that they were encompassed within the extended definition in Section 3(3) of the Act.
The third ground of appeal was that there was no entitlement to immunity in respect of civil claims arising out of acts of torture. The appellant submitted that the prohibition of torture was a jus cogens norm in respect of which universal criminal jurisdiction existed and that, under international law, violations of a jus cogens prohibition could not qualify as official acts and, accordingly, could not attract immunity.
Held (unanimously):—The appeal was dismissed.
(1) The respondents were not required expressly to invoke immunity in order to be entitled to it under the FSI Act. It was for the Court to satisfy itself that it had jurisdiction, regardless of whether any submissions were made concerning its jurisdiction to grant the relevant form of relief (paras. 32–45).
(2) The appellant's submission concerning the second ground of appeal had not previously been raised and was inconsistent with the way that service had been effected to commence the proceedings. Service of the Amended Statement of Claim had been effected pursuant to Section 24 of the FSI Act, which authorized service upon a ‘foreign State’ (para. 57). If the second ground of appeal were accepted, then the appellant would not be able to prove that he had properly effected service on the first and third respondents. In any event, the first and third respondents were protected by State immunity in view of the provisions of Sections 3(3)(c) and 40(1)(c) of the FSI Act4 and the existence of authority for the proposition that individual officers benefited from State immunity at common law. Government entities had to act through individual officers (paras. 59–77).
(3) On the third ground of appeal, Section 9 of the FSI Act could not be reconciled with the contention that no immunity existed in respect of civil claims arising out of acts of torture. It had not been established that allegations of torture attracted a superior status within international law that conferred
universal jurisdiction upon Australian courts. An Australian court had to apply an Australian statute in accordance with its terms, and although the Court would seek to interpret a statute consistently with Australia's international obligations, this could only be done where there was some ambiguity in the Australian statute (para. 128). Section 9 of the FSI Act was neither ambiguous nor obscure (para. 138), and Section 9 affirmed the traditional position at common law (i.e., absolute immunity) subject to the exceptions contained in the Act (paras. 120–49).The following is the text of the judgments delivered in the Court:
1. The appellant seeks leave to appeal from a judgment of Justice Latham in which her Honour, on the application of the Attorney-General intervening, made a declaration that the first three respondents were immune from the jurisdiction of the Supreme Court of New South Wales. The draft Notice of Appeal before the Court, as amended, contains three alternative grounds to which I will refer. The Court heard the application for leave and the appeal concurrently.
2. The appellant instituted proceedings by Statement of Claim claiming damages for assault, false imprisonment, wrongful arrest and acts of torture alleged to have been committed by or on behalf of the first to third respondents, on various occasions between December 1999 and August 2000, while the appellant was in China.
3. The first to third respondents are, respectively, the former President of the People's Republic of China (PRC), a department of the government of the PRC known as the Falun Gong Control Office and a member of the Politburo of the Communist Party of China. The fourth respondent is the Attorney-General of the Commonwealth.
4. Service was effected upon the embassy of the People's Republic of China pursuant to s 24 of the Foreign States Immunities Act 1985 (Cth) (‘the Immunities Act’).
5. Latham J dealt with two notices of motion. The first, filed on behalf of the appellant, sought default judgment for non-appearance. The second, filed on behalf of the Commonwealth Attorney-General (‘the Attorney’), sought leave to intervene in the proceedings and a declaration that the first to third respondents were immune from the jurisdiction of the Court, under the provisions of the Immunities Act.
6. Her Honour granted the Attorney leave to intervene. The Attorney was added as a party to the proceedings, becoming the fourth respondent. Her Honour made the declaration sought by the Attorney. Her Honour's findings and the declaration were sufficient to dispose of the appellant's application for default judgment.
7. The parties have made submissions as to whether leave to appeal is required. I do not find it necessary to resolve this issue. The matters raised are of sufficient significance that, if leave is required, it should be granted.
8. The appellant also proceeds on a Notice of Motion seeking leave to withdraw a concession made before Latham J that the appellant did not intend to press the case against the first respondent. On the evidence, this concession was made by counsel at trial without instructions. However, I note that the concession was repeated in written submissions filed in this Court on 7 December 2009.
9. Again, I do not believe it is necessary to determine whether leave is required. It is appropriate, in view of the significance of the issues raised, to proceed on the basis that a matter which arose on the pleadings, but was not pressed below, is raised on appeal.
10. The principal provision applicable to the present proceedings is s 9 of the Immunities Act which provides for immunity from jurisdiction. Sections 10–20 of the Immunities Act identify exceptions to s 9. None apply to the circumstances of this case. Section 9 states:
11. It will be necessary to refer to a number of other sections of the Immunities Act in this judgment. It is convenient to set out the sections at the outset.
3(1) In this Act, unless the contrary intention appears:
…
proceeding means a proceeding in a court but does not include a prosecution for an offence or an appeal or other proceeding in the nature of an appeal in relation to such a prosecution;
…
(3) Unless the contrary intention appears, a reference in this Act to a foreign State includes a reference to:
-
(a) a province, state, self-governing territory or other political subdivision (by whatever name known) of a foreign State;
-
(b) the head of a foreign State, or of a political subdivision of a foreign State, in his or her public capacity; and
-
(c) 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;
but does not include a reference to a separate entity of a foreign State.
…
10(7) A foreign State shall not be taken to have submitted to the jurisdiction in a proceeding by reason only that:
-
(a) it has made an application...
To continue reading
Request your trial