Audience publique tenue le mercredi 22 janvier 2014, à 17 heures, au Palais de la Paix, sous la présidence de M. Tomka, président, en l'affaire relative à des Questions concernant la saisie et la déte

Document Number
156-20140122-ORA-02-00-BI
Document Type
Incidental Proceedings
Number (Press Release, Order, etc)
2014/4
Date of the Document
Bilingual Document File
Bilingual Content

Corrigé
Corrected

CR2014/4

International Court Cour internationale
of Justice de Justice

THE HAGUE LAHAYE

YEAR2014

Public sitting

held on Wednesday 22 January 2014, at 5p.m., at the Peace Palace,

President Tomka presiding,

in the case concerninQuestions relating to the Seizure and Deteutiou
of Certain Documents and Data
(Timor-Leste v.Australia)

VERBATIM RECORD

ANNÉE2014

Audience publique

tenue le mercredi 22janvier014, à 17 heures, au Palais de la Paix,

sous la présidencede. Tomka, président,

en l'affaire relaàidesQuestions concernant la saisie et la détention
de certains documents et données
(Timor-Lestec. Australie)

COMPTE RENDU - 8 -

Present: President Tomka
Vice-President Sepùlveda-Amor

Judges Owada
Abraham
Keith
Bennouna

Skotnikov
Cançado Trindade
Yusuf
Greenwood

Xue
Donoghue
Gaja
Bhandari

Judges ad hoc Callinan
Cot

Registrar Couvreur -3-

Présents: M.
Tomka, président
M. Sepulveda-Amor, vice-président
MM. Owada
Abraham

Keith
Bennouna
Skotnikov
Cançado Trindade

Yusuf
Greenwood
MmesXue
Donoghue

M. Gaja
M. Bhandari, juges
MM. Callinan
Cot,juges ad hoc

M. Couvreur, greffier -4-

The Government of Timor-Leste is represented by:

H.E. Mr. Joaquim A.M.L. da Fonseca, Ambassador of the Democratie Republic of Timor-Leste to
the United Kingdom,

as Agent;

H.E. Mr. JoséLuis Gutteres, Minister for Foreign Affairs and Co-operation;

H.E. Mr. Nelson dos Santos, Ambassador of the Democratie Republic of Timor-Leste to the
Kingdom ofBelgium and the European Union;

*

Sir Elihu Lauterpacht, C.B.E., Q.C. Honorary Professor of International Law, University of
Cambridge, member of the Institut de droit international, member of the English Bar,

Mr. Vaughan Lowe, Q.C., Emeritus Professor oflnternational Law, University of Oxford, member
of the English Bar,

Sir Michael Wood, K.C.M.G., Member of the International Law Commission, member of the
English Bar,

as Counsel and Advocates;

Ms Janet Legrand, Partner, DLA Piper UK LLP,

Ms Emma Martin, Associate, DLA Piper UK LLP,

Ms Jolan Draaisma, Senior Associate, Collaery Lawyers,

'1>fl\..."\.,
Mr. Andrew Legg,~, member of the English Bar,

as Counsel;

-,------------Mr:--Eran-Sthoeger;I::;I::;;M:;NewYorlcl:Jniversi1ySchool-
of-I:;aw;---_________ ,_

as Junior Counsel;

Mr. Bernard Collaery, Principal, Collaery Lawyers,

as Advisor. - 5-

Le Gouvernement du Timor-Leste est représenté par:

S. Exc. M. Joaquim A.M.L. da Fonseca, ambassadeur de la République démocratique du
Timor-Leste auprèsdu Royaume-Uni,

comme agent ;

S. Exc. M. JoséLufs Guterres, ministre des affaires étrangères et de la coopération de la
Républiquedémocratiquedu Timor-Leste ;

S. Exc. M. Nelson dos Santos, ambassadeur de la Républiquedémocratiquedu Timor-Leste auprès

du Royaume de Belgique et de l'Union européenne;

*

sir Elihu Lauterpacht, C.B.E., Q.C., professeur honoraire de droit international à l'Université de
Cambridge, membre de l'Institut de droit international, membre du barreau d'Angleterre,

M. Vaughan Lowe, Q.C., professeur éméritede droit international à l'Universitéd'Oxford, membre
du barreau d'Angleterre,

sir Michael Wood, K.C.M.G., membre de la Commission du droit international, membre du barreau
d'Angleterre,

comme conseils et avocats ;

Mme Janet Legrand, associéeau Cabinet DLA Piper UK LLP,

Mme Emma Martin, collaboratrice au Cabinet DLA Piper UK LLP,

Mme Jolan Draaisma, collaboratrice principale au Cabinet Collaery Lawyers,
':!>'\..;\.
M. Andrew Legg, !Ph-:i3\,embre du barreau d'Angleterre,

comme conseils ;

M. Andrew Sanger, Lauterpacht Centre for International Law de l'Universitéde Cambridge,

M. Bran Sthoeger, LL.M, Facultéde droit de l'Universitéde New York,

comme conseils auxiliaires ;

M. Bernard Collaery, associéprincipal, Cabinet Collaery Lawyers,

comme conseiller. -6-

The Government of Australia is represented by:

Mr. John Reid, First Assistant Secretary, International Law and Human Rights Division,
Attorney-General's Department,

as Agent;

H.E. Mr. Neil Mules, A.O., Ambassador of Australia to the Kingdom of the Netherlands,

as Co-Agent;

Mr. Justin Gleeson, S.C., Solicitor-General of Australia,

Mr. James Crawford, A.C., S.C., F.B.A, Whewell Professor of International Law, University of
Cambridge, member of the Institut de droit international, Barrister, Matrix Chambers, London,

Mr. Bill Campbell, Q.C., General Counsel (International Law), Attorney-General's Department,

Mr. Henry Burmester, A.O., Q.C., Special Counsel, Australian Government Solicitor,

as Counsel and Advocates;

Mr. Chester Brown, Professor of International Law and International Arbitration, University of
Sydney, Barrister, 7 Selbowne Chambers, Sydney, and Essex Court Chambers, London,

Mr. Rowan Nicholson, Barrister and Solicitor, Supreme Court of South Australia, Research

Associate, Lauterpacht Centre for International Law,University of Cambridge,

as Counsel;

Ms Camille Goodman, Principal Legal Officer, Attorney-General's Department,

Ms Stephanie Ierino, Senior Legal Officer, Attorney-General's Department,

Ms Amelia Telec, Senior Legal Officer, Attorney-General's Department,

Ms Esme Shirlow, Acting Senior Legal Officer, Attorney-General's Department,

Mr:-Todd-~uinn:;-First-Secretary;Embassy-of-Australiain-the-K:ingdom-oftheNetherlands,

Mr. William Underwood, Third Secretary, Embassy of Australia in the Kingdom of the

Netherlands,

as Advisers;

Ms Natalie Mojsoska, Administration Officer, Attorney-General's Department,

as Assistant. - 7-

Le Gouvernement de l'Australie est représentépar:

M. John Reid, premier secrétaireadjoint, division du droit international et des droits de l'homme,
services de l'Attorney-General,

comme agent ;

S. Exc. M. Neil Mules, A.O., ambassadeur d'Australie auprèsdu Royaume des Pays-Bas,

comme coagent ;

M. Justin Gleeson, S.C., Solicitor-General d'Australie,

M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l'Université de
Cambridge, titulaire de la chaire Whewell, membre de l'Institut de droit international, Barrister,
Matrix Chambers (Londres),

M. Bill Campbell, Q.C., General Counsel (droit international), services de l'Attorney-General
d'Australie,

M. Henry Burmester, A.O., Q.C., Special Counsel, Solicitor du Gouvernement australien,

comme conseils et avocats ;

M. Chester Brown, professeur de droit international et d'arbitrage international à l'Université de
Sydney, Barrister, 7 Selborne Chambers (Sydney) et Essex Court Chambers (Londres),

M. Rowan Nicholson, Barrister et Solicitor près la Cour suprême de l'Australie-Méridionale

(Supreme Court of South Australia), attaché de recherche au Lauterpacht Centre for
International Law de l'Universitéde Cambridge,

comme conseils ;

Mme Camille Goodman, juriste principal, services de 1'Attorney-General,

Mme Stephanie Ierino,juriste hors classe, services de l'Attorney-General,

Mme Amelia Telec,juriste hors classe, services de l'Attorney-General,

H Mme EsmeaShirlow,juriste hors classe par intérim,services de l'Attorney-General,

Mme Vicki McConaghie, conseiller juridique, services de l'Attorney-General,

M. Todd Quinn, premier secrétaire,ambassade d'Australie au Royaume des Pays-Bas,

M. William Underwood, troisièmesecrétaire,ambassade d'Australie au Royaume des Pays-Bas,

comme conseillers ;

Mme Nathalie Mojsoska, administrateur, services de l'Attorney-General,

comme assistante. - 8-

The PRESIDENT: Please be seated. The sitting is now open. The Court meets this

afternoon to hear the second round of oral observations for Australia on the Request for the

indication of provisional measures filed by Timor-Leste. My understanding is that the

Solicitor-General of Australia, Mr. Gleeson, is going to open the arguments for Australia. You

have the floor, Sir.

Mr. GLEESON:

Introduction

1. Thank you, Mr. President, Members of the Court. I will deal with ali matters, save for

plausibility, which Mr. Campbell will deal with. Let me start with one matter repeated by Sir Elihu

this morning from Monday, namely his assertion that Australia committed an act of espionage

against Timor-Leste in Dili in 2004. He asked Australia to admit and apologize for that act.
Ot\
2. There are two problems with that request. The first is the allegation of espionage is not es

issue before you, whereas it is an issue before the Tribunal. It should not be asserted in this Court

as a fact when it is irrelevant. Australia neither confirms nor denies that allegation, as is its right.

Second, it will not have escaped you this morning that, when the assertion was repeated, again no

evidence was pointed to in support of it. We ask you to dismiss that matter from your mind as

nothing more than an assertion to be considered elsewhere.

3. Might I say next that, as we did not hear much new this morning, I would propose to

Adequate protection of the arbitration

4. Could I turn first to the topic of the Arbitration and to Judge Cancado Trindade's

question', which I would seek--------er f----------e levet of principle and then at the level of

application. At the levet of principle, we would accept that, if a State engages in arbitration with

another State, and finds it necessary to take measures of national security which may bear on the

1 s.
Judge CarJÂadoTrindade: "What is the impact of a State's measures of alleged national security upon the\
conduction of arbitral proceedings between the Parties? ln particular, what is the effict or impact of seizure of N<:>
documents and data, in the circumstances of the present case, upon the settlement of an international dispute by ·,\-..),;~
negotiation and arbitra/ion?" -9-

arbitration, the State should, as a matter of prudence, if not strict law, take such steps as are

reasonable to limit the impacttional security measures on the arbitration. We accept, as

was put this moming, that to do otherwise would interfere with arbitration as a peaceful method

resolving inter-State 1 emphasize, the principle is qualified byTheasonableness.

circumstances may not always provide a perfect accommodation between the two interests

conflict and a State could not be asked absolutely to put on hold measures of national security

merely because it is brought to arbitration.

5. That is the general answer. The specifie answer is this: in the present case the measures

~4!..
of national security will have no ad\#Jtrbitratiofor three reasons. Firstly,

Timor-Leste's counsele Arbitration, on 5 December, accepted they have copies of the key

removed documents, including an affidavit from the person they describe

they have lodged with the case of disadvantage bas been made before you. Second, the

Attorney-General acted reasonably from therom the Ministerial Statement of

3
4 December, supplemented by un-erto ensure there would be no illegitimate advantage

to Australia by wayocuments being made available to the legal team in the Arbitration.

Wisely, with hindsight,cipated this problem might arise and he acted in advance to prevent

it. The third parte practical answer is that there is not a skerrick of evidence pointed to by

Timor-Leste to suggest the undertakings have not been honoured to date or will not be honoured

the future. That is, the undertakings to protect the Arbitration. As you know, the documents have

been kept under seal, outct for the President's request. The lawyers in the Arbitration have

not and will not see them. Not eveneen them.

6. Now, you have not heard any substantive argument against those three points. To repeat,

Timor-Leste has the documents it needs forbasidtuae adetangstonroct

the integritye~ anrtbundetarngartbinghoou;ed.

2Transcript p. 85, !ines 22-25 and p.fleth~Eligss'7 (Lowe)lf
3
Senator the Hon. George Brandis Q.C., Attorney-General, "Ministerial Statement: Execution of ASIO Search
Warrants" (4 Dec. 2013), p. 1. - 10-

~...,..

7. If Timor-Leste continues to maintain the proposition put by Sir Elihu on MondaYj "it

seems hardly likely that the materials have not been closely examined by Australian offi,that"

proposition is without foundation and should be dismissed.

8. Nor, to conclude this point, should the Court take up the hint this morning that in the face

of undertakings solemnly and consideredly given and binding on a State, you should nevertheless

make orders.

9. It is clear from the Court's jurisprudence that undertakings are of a binding character. I

5
reference theLegal Status of Eastern Green/and cas•1

10.(!he point was confirmed by the Court in the Nuclear Tests case (Australia v. Francel]

That is the first matter I wish to address.

The Evidence Available to Australia

11. Let me turn then to the important question of the Vice-President this morning, which

was: does Australia have evidence to support the proposition I put that Timor-Leste may be

encouraging the commission of a crime under Australian law or otherwise infringing national

7
security.If so, could we be more specific?

12. The answer to the first question is "yes".As to the second question, may I start by

noting that the proposition was carefully put at a levela reasonable apprehension and not at a

levelof assertion of fact. Australia does not wish to assert anything more than is strictly necessary

or appropriate to resolve this case. Within that framework, the answer I will now give as to the

4
CR 2014/1, para,l2 (Lauterpacht).
5
Legal Status of Eastern Green/and (Denmark v. Norway), Judgment, 1933, P.C.l.J., Sp.71: AIE, No. 53,
"The Court considers it beyond ali dispute that a reply of this nature by the Minster for Foreign Affairs on behalf of his
Government in response to a request diplomatie representative of a-foreign Power, in regard-to a question falling
within his province,indinguponthe country to which the Minister belongs;"

6Australia v. France, l.C.J. Reports 1974, p 267, para. 43: "It is weil recognized that declarations made by way
of unilateral acts, concerning legal or factual situations, may have the effect of creating obligations. Declarations of this
kind may be, and often are, very specifie. When it is the intention of the State making the declaration that it should

become bound according to its terms, that intention confersration the character of a legal undertaking, the
State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of
this kind, if given publicly, and with an intent to be bound, even though not made within the context of international
negotiations,binding." ,
iJ.u S c J:..l"-1\ \.~.r,.. \
~Doe 'Australia have evidence supporting the proposition that Timor-Leste is encouragingN.;) commission of
crimes under Australian law or otherwise jeopardizing Australia 'snational security, as suggest"\-.y Mr Gleeson in his
intervention21 January 2014 before the Court? Jfso, could Australia be more specifie on this pa' ""\.:c..llter?" - 11-

evidence will need to balance two matters. Firstly, matters of national security, which limit what 1

can say. Secondly, a desire not to further inflame relations between our countries.

C.e-c')
13. Let me then identizy-so there is sorne precision in my answethe~ V:l:tffi\

potentially.&slinquestion. One crime is under Section 39 ofthe Intelligence Services Act 2001 of

the Commonwealth. It is a crime if a present or former officer of ASIS communicates information

conceming the performancef the functions of ASIS acquired as an officer unless the approval of

the Director General is obtained. And I emphasize, that is the qualification permitted under the

Act. The second key provision is Section 41, which makes it a separate crime to make public the

identityf officers of ASIS, or information from which identity can be inferred, again without the

approvalof the Director General.

14. A third party would encourage the commission of crimeÎofthis character if it took steps

which sought to facilitate such communications or publications or sought to profit from them.

15. Tuming now to the evidence to support what I have put as a matter of apprehension, not

of fact, I will first identizy seven propositions of evidence and then I will identizy the materials

which underpin them. And you will note in what I say that the primary focusrehension

hinges upon conduct'! 19)4 r. Collaeas~ foeEast imor, as opposed to cond~ot à)riJ

the Timorese-Leste Govemment .
Cl
16. The first proposition is that Mr.as~generfr Timor-Leste, has received into his

possession a witness statement and an affidavit from a former officer who I will for

convenience label "X".

17. The second is that although the precise content of that document is not known to us, it is
il-s
apparent from what Mr. Collaery has said publicl~ thsubject-matter contains information

relevant ton alleged operation of ASIS in Dili in 2004, which would be information caught by

Section 39.
Q
18. The third, perhaps even more concerning, isthat Mr. Collaery, as tA!gentfor Timor-Leste,
-f..:,r\trV\1-­
has chosen to republish that information, the information he says was obtthe~, from

widely in the media in Austrathereby accessible throughout the region and the world.

19. The fourth is that Timor-Leste proposes to tender and rely upon docwhichs-

would appear to be these sameclosures-as its evidence in the Arbitration. - 12-

20. The fifth is that Timor-Leste has argued vigorously that the Arbitration should not be

1Ir:;. Ïf\1-\..:\- ."-"'C:";:,u.lcl
subject to confidentiality so thattRilaimskÀm·llàbe made tfttrt8public.

21. The sixth and last point, which is of particular concern to Australia, is that there is an

apprehension that Timor-Leste, through Mr. Collaery, having obtained information from X, has

used that information as a basis- as a springboard, to use a term of equity from which to make

further enquiries, the result of which it now says publicly, has led it to identify four persans who it

says were involved in an operation against Timor-Leste in 2004. Itfurther has said publicly it now

Œ.)\-...)'j( accepts there is a risk to the safety of those persons>becausethey have been identifie idtJe~r
w.....,.:.,
names were revealed publicly. Those are the matters which underpin the concern that Australia,

through me, expressed yesterday.

22. Could I then go to the detail, and I apologize that the judges' folder supplement has only

just arrived, but we have been working during today on your question, Sir. What I will do is

summarize the key material the references in the judges' folder will be fully provided with the

material I have given to the President and there will be perhaps three of these documents I will

show you in particular. The detailed information,then, is this.

23.On 31 May 2013 in Timor-Leste's J~rIn ndeplendente it was reported that Mr. Pires,

T;"'~r-L"~
Timor-Leste's Minister ofResources, alleged that ASIS had broken into and buggedEast TiFHorssà

cabinet rooms during the negotiations of the CMATS Treaty. It was further reported that the

revelations were broughtto light by an ex-ASIS officer.

24. In that same article, Mr. Collaery- described as the lawyer at this stage for

-----~~) (_ Minister-Pire~was_reporteclas_confirming_thaLthe_e:vidence_ofAustralia'.s_alleged_conducLwas.

"irrefutable"9• He was quoted as saying "Australian authorities are weil aware that we are in a

position to back that up".

25. On 8 June 2013, in an article in the Economist, the same Minister Pires is quoted as

saying that Timor-Leste had "irrefutable proof' that during negotiations in 2004, Australia's secret

services had illegally obtained information and that hislawyer- we would infer Mr. Collaery for

Julio da Silva, "Xanana still Waiting for Response from Australia about CMATS", Jornal lndependente
(31 May2013), p. ~ttd- gsdsr'taa 44J.
9
Julio da Silva, "Xanana still Waiting for Response from Australia about CMATS", Jornal lndependente
(31 May2013), p. 61(j11dgesf'elder, t!lbHJ. - 13-

10
the reason previously cited- claimed the Timorese Prime Minister's offices were bugged .

Those matters relate to May and June oflast year. I briefly referred you to those matters yesterday.

26. Could 1 then supplement those with what occurred immediately after the intelligence
0

>< operation by ASIO in December{ Mr. Collaery made public statements in the press regarding the

evidence which was to be given by a person described as a former ASIS officer in thearbitration- x

and I want to be fairly precise in how I quote Mr. Collaery:

(a) On 3 December 2013, he said in an interview on the Lateline programme on the Australian

1\-:.ho.l\!>..'
Broadcasting Corporation (ABC) television, ~ v\ustraliftfl television network, that "this

witness was the director of ali technical operations with ASIS ... a very senior, experienced,

decorate/. He went on to say "the evidence is available here in The Hague as I

speak'~

(b) On the same day, he said in a further interview with the ABC that "the whistleblower's

evidence ... is here, it's abroad, it's ready•

(c) On 4 December 2013, in an interview again with the ABC, he gave further details of the

A-
evidence to be given by a former ASIS officer, described as the prime witness in thetirbitration"

proceedin !!\ Extracts from the affidavit of the former ASIS official were quoted, which

13
concerned instructions allegedly given to him by the head of ASI • Could I invite the Court

to go to tab 48, andif our earnest work this afternoon has been successful it will be the right tab

and, if not, I will apologize now. At tab 48, you will see the transcript and if you could go to

page 2, to the material we have taken the liberty of highlighting only for ease of reference, you

will see halfway down that Mr. Collaery- described here as lawyer for East Timor or
q
X therefore as ~gent- publicly disclosed an assertion: "The newly arrived director of ASIS

called the head of the technical area of ASIS to a meeting and, there, with his deputy, who 1

1"Timor-Leste and Australia: Bugs in the Pipeline", The Economist (8 June 2013), available at:
http://www.economist.com/news/asia/21579074-timorese-leaders-push-bette…­

pipeline\(:jttEigssf's!E4~.,taè
1"Bernard Collaery, Lawyer for East Timor", Lateline, ABC (3 December2013), available at:

http://www.abc.net.au/lateline/content/2013/s3904428.htm'fjttEigefss'!E….
1Peter Lloyd, "ASIO raided office of lawyer representing East Timor in spying case", ABC News,

3 December 2013l(jwdgss'fs!Eiet,tab 47JE)
1Conor DuftY,"New detailsemerge in claims of spying on EastTimor", 7.30, ABC (4 Decembe~2013)

wl•h:r,tabg\· - 14-

cannot name, he was instructed to undertake a mission in East Timor to clandestinely record the

conversations [of] the then Timorese negotiatingy". If you drop down a little further, you

will see an interchange between. Collaery and Conor Du:fiY,the journalist, and if you drop

down a little further you see Mr. Collaery quoted as sayingwitness has [an] intelligence

medal [He] is a most decorated, senior official". Could 1then pause on the next paragraph,

which is of grave concern to Australia. Conor Du:fiY,the journa"7.30 has part of his

crucial affidavit, which says the then headIS instructed him to plant a Iistening deviee in

East Timor on the orders of the then ASIS head and now ASIO boss, David Ir1pause on

that. That woud appear to indicate that Mr. Collaery, on behalf of East Timor, having obtained

information from the ex-ASIS officer, in breach of Section 39, ,has then disclosed that

informationin the form of the affidavit, the very affidavit apparent!y they wish to assert State

property immunity over, to ajournalista major media network in Australia in order that that

material can be published widelyAustralia. I trust the Court will see, based on that material,

the apprehension which underlay the concern I expressed yesterday. And you will see, in the

dramatic manner that television producers like to do,turn to the top of the next page, that

it proceeded to a male voice-over reading from thedavit- in a dramatic form one might

imagine to convey with maximum publicity and exposure the material apparently
T.c-..~L<l.:.'nt.

communicated from X to Mr. Collaery on behalf of East Tit'H6tand then republished in

Australia. The Court may see the concern Australia holds and expresses as to whether this

conduct is wrongful, is unlawful and is damaging to our security.

(d)_Io~_complete_the_chron __Dleom b,r_o20_3,_in_Australian-AssociatecL--Press,

Mr. Collaery was cited as saying again the witness was "the director of ali technical operations

atASIS" 1•

(e)tAe:on\5 December, in the letter recording the removed mat1have already shown you, he

identified a witness statement, and affidavit, from an anonymized person.

27. There are two other aspectsf the chronology I wish to Tefer to, if the Court would

pleasego to tab 501now wish to underpin thp~oposi 1tpuotnat there is an apprehension that

14
"Raided East Timor Lawyer calls for Inquiry", Australian Associated Press, 4 December 20l31{itu:lgss' fslèsr,
~. - 15 -

~
the Timorese Government has used the information obtained through itstAlgent,Mr. Collaery, as a :x

springboard to ascertain the identities of Australian officers, potentially putting their lives at risk.

The Court will see from the highlighted material from the Sydney Morning Herald, in the third

paragraph, that Mr. Pires, East Timorese National Resources Minister, said: "We think we have

identified the team of people who came in to do the bugging. . . They are males, along with a
-;;,....r--L....k

possible lady spy'. He said Bast Titnortwould keep the names secure and then I pause on the next

sentence, but he noted that at least one of them was still working overseas and under the same

15
name, and maybe at risk "if the names get out over the internet' • And if you drop clownabout

five paragraphs in the highlighted material, you will see that the claims of spying come from a

former Australian secret intelligence service agent who turned whistleblower.

28. And if you would turn to the next tab, please,~ Mr. Pires is further quoted, in the

middle, saying this: ."Wethink we have identified things going into Timor at a particular date and

coming out, and that kind of relates to the stories we've been provided with"- apparently a

reference by Mr. Pires to the information he obtained through Mr. Collaery from X. I continue the

quote: "We've got names that we have been able to deduce. Those names are inside sorne of our

0
computers and in today's age, no-one with a computer is safe". I drop clowna little furtherJ.as4"If .><

those names wind up in the wrong bands, if those people may be still active in other parts of the

world ... they have to take extra precaution not to be identified, there are dangers involved. We

16
don't want anyone else to get burt in this thing."

29. Let me be clear so that there is no misapprehension. I do not assert that Minister Pires of

Timor-Leste bas a positive intention to publish the names of the ASIS officers that he bas, it would

appear, obtained through the actions of the Mr. Collaery and X. I do not positively assert that

Minister Pires has an intention to harm the lives of those persons. But I trust you will now see that

we have a situation where Australia is being asked to accept that the conscience of Mr. X, the

conscience of Mr. Collaery and the conscience of senior Timorese officiais is to be the guard of the

safety of Australian lives and Australian security information. I must say to you, Mr. President,

15
Tom Allard, "East Timor claims it knows which Australian spies bugged its offices", Sydney Morning Herald,
9 December 2013(j~:~ fQilersa'501.
1Rebecca Le May, "More whistleblowers in Timor spy scandai", Sydney Morning Herald (9 Dec. 2013) fJwEiges'

FeiEIBrt,a511. - 16-

Members of the Court, that is unacceptable. Minister Pires, Mr. CollaerJQshould noteer

be the guardsf the security of Australian lives and information.
..flr-.-..'1
30. The final matter in this, I apologizeklightly long answer to tbut I thought

it was important that we show you that the proposition was put with care and consideration -
ct!~a.r~\. ..,ri".J..J
that in the First Procedural Meetinghon 5 December, counsel for Timor-Leste acknowledged that

there would need to be arrangements protect the anonymity of the witness" and, it was said,

"[to] prevent the identification of any other intelligence agents". It was clear from that statement

(f"\-:;;c.ôKdJ
that the witness statement of affidavit has in fact disclosed names of other Australian intelligence

agents- that being information from which, apparently, Mr. Pires has proceeded to do his further

deductions.
!roM
31. Could move thtlon ~nswer to your first question, to a slightly shorter answer to

17
your second question- although not too shortYour question was a~d thank you for the x

questio ith~s caused us to go back and look at Section 25(a)the documents, data and

property - is it lawful to still retain them on the ground that returning them would currently be

prejudicial to Australia's security?

, 32. Our answer is "yes" for two reasons. The first is that, because of the Attorney-General's

direction,SIO to date has not inspected any of the documents. It has not commenced its task

because the documents are being kept under seal for all purposes until we have this Court's

decision on provisional measures.o, to date, no information has been obtained from the

documents. The second matter is thiwhich is looking forward. Why is it that ASIO needs to


_____________ Jo_ok_aUh~s~_d_p_c_um~nts_in_ord~cto_pmJe_ LtutUhe_ans:racliw_m a___e__cud_fY-_

>< be slightly better revealedxfrom the chronology I have given you. The central enquiry for ASIO is

what is the nature and extent of the threat to security revealed by the documents? Do they reveal

that a former officer has disclosed and threatens further to disclose security information?

do, the questionsO would need to ask are these:

(a) HasiMI:X disclosed or does he threaten to disclose names or identities of serving or former

officers?

17
Judge Sepulvéda-Arn6r: "In accordance with the ASIO Act, Section 25(4C) .. Should the documents, data
and other property seized by the Australian authorities at the premisesy be still retained by the
Australian authorities on grounds that retuming themjudicial to Australia's national security?" - 17-

(b) If he does, will that endanger the lives or security of those persons, their families, persons they

have dealt with, particularlyey are posted outside Australia in dangerous places?
1"h;,.-J....,,""""'"':)
(c)~ X 'dts:osedfo:dMoes he threaten to disclose methods of operation of ASIO, such as

techniques, technical capabilities and trade craft, or indeed, has dealings of ASIO

with the intelligence agencies offriendly countries?

(d) How widespread are the actual or threatened disclosures by X? Are they solely to Timor-Leste

orto other States? Are they to individuals as weil as to foreign States?

33. It is not for Australia today te !:to assert or prove the precise nature of these

threats.e do not know what is in the documents. But I trust we have done enough to establish

before you that these threats exist and they are real. And itive in \'B:fiAustralia's
f\~-ro
interest tha~e allowed to do its job and inspect the documents and answer the questions I have

posed.

34. If ASIO finds there is no significant threat, that is the end the documents-

will be returned to Mr. Collaery.

35. If it finds a significant threat, it will provide advice on actions Australia can or should

take to mitigate the harm to Australia.

36. And that is why I said to you yesterday, itobject of this Request and a true vice in

it that>Timor-Leste invites you to make an order that will be almost final Assuming a

final hearing andjudgment, say12 to 18 months bence, ASIO would be sterilized for that period

of time, a period so long that if these dolWettlreveal threats, they wiIl probab!y already

have come to pass. And thats damage which the Court can never undo, by money or otherwise,

if- when it cornes to final judgmenyou accept that Timor-Leste's legal claims to absolute

property rights are erroneous.

37. Might I say this: almost everyonethis Court has at sorne time served a government
c:.o'ls\~\-'
and become privy to secrets, whether intelligence, securit)j f]abil:lelmaterial or otherwise. We ali
W~}t'l
know the rules. Secrecy is importa~t. the exceptional case where there is thought to be a

compelling higher interest which calls for disclosure, there will usually be a procedure available.

In Australia that procedure requires seeking the consent of the Director General of ASIO to make

the disclosure.What is not open for a State officer, serving or past, is to place his or her - 18-

conception of conscience or morality, or worse still private interest, above the law. Worse still

again is for that State officer to share those secrets with a foreign State, such that between them,

they determine the limits on disclosure. We ask you not to grant provisional measures because
~dol'\e.

they would that behaviour by the persons 1have so far identified.

Timing of the warrant

38. 1need to deal with certain further questions. Judge Bennouna's question concerning the

timing ofthe warrant18•

3~ .The search warrant was issued on 2 December 2013 and executed the next day because, by

then, Australia was in possession of information indicating it was likely (in the sense of a real risk)

that a person 1have referred to as X:

(a) had made disclosures of information concerning Australia's security Mr. Collaery on behalf

of Timor-Leste;

(b) would make further such disclosures, disclosures which Australia could not control or confine

in terms of subject-matter, purpose or recipients;

(c) might leave Australia within a matter of days with no certainty of return; and

(d) might destroy documents and data which might provide intelligence regarding such disclosures.

L.,)$. They were the concerns which made it essential for three immediate interrelated steps to

><'>< be taken: The first>cwasthat X's passport had to be cancelled; the second.,.wasthe warrant on X's

)( premises; the third)<'as the warrant on Mr. Collaery's premises. A view was taken that if those

~steps .werenotJakenimmerliately;=they maynot~ abee to hetaken latecas effectively;·_:And;Ldo.
··--·---·------------·-·-------·--·---
not need to remind the Court of other instances of which we are aware publicly of persons who

have fied their country with dangerous information they should not have taken with them for

exposure and when it is then too late to act.

lt11..MMJight I assure the Court,and this is my final ansWer to tliis question, thete was riO

connection between the timing of the matters, that 1 have just described, and the preliminary

~ .
hearing here in The Hague,\αlttheArbitral Tribunal 5December. Mr. X was not a witness in the

18
Judge Bennouna: "Can the Australian delegation explain to the Court why the Search Warrant was delivered on
2 December2013 and executed on 3 December, that is, two days before the first hearing of the Arbitral Tribunal, held on
5 December2013?" - 19-

Tribunal on that day. No witnesses were being called at ali, it was a preliminary hearing and, as far

as Australia knew, X did not have a plan to travel to The Hague at that time.

Ownership in the removed materials
L,'L.
fi. Judge Yusufs question on ownership of property. Thank you for that, we have looked

again closely, because we did not make our position sufficiently cl•aQuestions of ownership

cannot be answered in the absence of a proper examination of the documents in question.That

examination has not occurred because we have not inspected the documents. We therefore cannot

accept the proposition that the documents are necessarily the property of Timor-Leste, nor can we
~r~
putJ?ou a full submission on where ownership might lie.

~~ % There are however two matters we can put by reference to ownership. The first is this:

(a) to the extent the documents contain a witness statement or affidavit disclosing confidential

information belonging to Australia, the owner would be Australia and certainly not

Timor-Leste. Let me give you an example: if Mr. Edward Snowden fiees America containing

information in documents that he has stolen, and if he gives that information to a foreign State

or to a media outlet, that would not deprive the United States of ownership in those materials.

So one real possibility to be investigated, we would say in the Arbitral Tribunal or the

Australian courts, is whether to the extent the material contains the information of Australia,

the owner of the information is Australia, not Timor-Leste.

(b) The second proposition 1should mention is this: we have provided to the Court\iR taàs 52 aRè

~, material which would indicate that, up until perhaps November of last year, Mr. Collaery

was acting as the solicitorfor Mr. X Now, there is at least a real possibility that Timor-Leste

20
does not have ownership ofmaterial generated in the capacity acting as solicitor for•Mr. X
ii,.~"l'-\~
'-tt.A1.Could 1 mention one related matter about the Arbitratior@ There is sufficie you~ efore

now to know that it is likely that Timor-Leste wishes to tender evidence from the person 1 have

described as X in that Arbitration. For the information of the Court, but not for you to rule upon in

1Judge Yusuf: "In the view of the Parties, to whom did the individual items listed in the ASIO Property Seizure
Record of 3 December 2013and their contents belong at the time of their seizure?"
20
Letter from Bernard Gross to John Reid, dated 12 December 2013Jjwtae§:1; Richard Ackland,
"George Brandis' security clean-up leaves out messy questions", Sydney Morning Herald, 3 January 2014\judges' w18eo,
~· -20-

any way, it is appropriate to indicate that if Timor-Leste takes that course, and if the proposed

evidence were to disclose national security informationtralia, or be given in breach of

Australian criminallaw, Australia would intend to object to the admissibility of the evidence. We

informed the Tribunal on 5 December we would bring forward any application of that character

with expedition and we will do so.

Durationof the undertaking
k~ Q
)-4'.Judge Donoghue's question concerning the duration undertak tithe~~rsx x

question, it will not expire. Ali the words in question were intended to do was to allow for a

possible variation after the Court so ordered. There are no circumstances, other than those referred

toin subparagraph 2, which would require a variation. The purpose of subparagraph 2 was that if

circumstances arose where it became necessarfor reasons currently unanticipatfor the

Attorney-General to inform himselfhe material, Australia will first bring the matter to you, on

notice to Timor-Leste, and will not act before you have been able to consider the matter.

Relationship between paragraphs(3) and (4) of the undertaking
t..6 22
fi The answer to your second question is"no".

~Th purpose of subparagraph 4 was only to clarify that matters concerning the Timor Sea

o~~:.c.. t
and related negotiations, as weil as the ~onductCourt proceedings andl\the Tribunal, fall

outside the "national security" purpose referred to in subparagraph 3. 1trutha~q-~'-''="'s

............:::~:::::::::::::::::=:::::::=::::::::::::::::=·=Pastand•=rutu-re:nisclosure··ot:t6e::remove<Fmaferîals-•·······-····

----·--------'-'lib. ··--·----· ·--~..}-
% In relation to Judge Greenwood's questioncan we undertakeA_thedisclosure of

information derived from the documents seized or notes taken during the execution of the search

21
Judge Donoghue, Question A: "My first question relates to the chapeau that begins the paragraph on page 2. 1
seek to clarify the significance of the first 'or' on tine 1 of page 2. Under what circumstances would the undertaking of
the Attorney-General expire prior to this Court's Judgment?" ·
2Judge Donoghue, Question B: "My second question also relates to the paragraph on page 2. I seek to clarify
the relationship between subparagraph (3) and subparagraph (4)ct that subparagraph (4) begins with the
phrase 'without limiting the above'.lia wishes, for national security purposes, to provide the material or
information derived from the material to a partlian Govemment that has responsibility for the matters
described subparagraph (4), could it do so consistent with the Undertaking." - 21 -

3
warranf has not occurred to persans involved in the arbitration or commercial negotiations? Yes,

1give that undertaking.

)-IrAsto your second questio:Either the documents will be returned once the identified

- '" -
x period expires~whi vent the ASIO Act does not govern their special prosecua t.ion~ot(D

perhaps in the circumstances more relevant to the q~tstidhcueents remain in the bandx

of ASIO or the prosecutors, Australia's approach would be to make the appropriate application to

the Court under thetional Security Information (Criminal and Civil Proceedings) Act 2004 (the

NSI Act)l(see tfl:b30 oftl:ie Anne*es to Australia's Written Observations-}which can be applied to

ensure that the information does not come to the notices referred to in the question.

'ScT ~he Attorney-General undertakes to you that in the event of such a prosecution, he will

direct the Commonwealth Director Public Prosecutions to invoke the relevant provisions of that

Act. And, in the unlikely event that a prosecution took place before the resolutionr,

the Attorney-General, through me, undertakes that he will inform the Courtdertaking 1

have just given you, he will seek the appropriate orders to limit the dissemination of the

information. And in the unlikely event the orders were not made, the Attorney-General will bring

the matter back to this Court before any further action is taken in Australia.

S" %. Mr. President, ·that coneludes my presentation. 1thank you for your attention, Members

of the Court.

$"2if[.1invite you to call upon Mr. Campbell.

The PRESIDENT: Thank you, very much, Mr. Solicitor-General. Now 1 give the floor to

Mr. Campbell. Please, take the floor.

Mr. CAMPBELL: Mr. President, Members of the Court, in the second round, 1 will be

addressing the plausibilityhe rights asserted by Timor-Leste over the past few days and, in

2Judge Greenwood, Question A: "Does Australia undertake that no information derived from the documents
seized or from notes made course of the execution of the search warrant has already been communicated to any
persan involvedthe arbitration proceedings or any persan who might be involved in negotiations relating to the matters
referred toparagraph 4 ofthat undertaking?"
2Judge Greenwood, Question B: "In the event of a prosecution in Australia, will any of the documents seized or
information derived from those documents be disclosedch a way that those documents or that information
will be likelyome to the notice of persans involved in the arbitration, in the proceedings in this Court or in any
negotiationsthe kind to which 1have referred?" -22-

particular, the submissions made by Sir Michael Wood tI will also respond to the

third question\possdto ~.t:ts~m taiayou posed this morning to Australia,

Vice-President Sepulveda-Amor. I will seek to do that.

1. Before doing so, I will just address a few matters in less detail. The first is to respond to

what counsel for the Applicant had to say on the other conditions for the indication of provisional

measures.In relation to the need for a sufficient link, it is our submission that nothing said by

Timor-Leste this morning detracts from the submissions made by Mr. Burmester on that issue in

the first round. In relation to irreparable prejudice and urgency, similarly, Timor-Leste does not

point to any material which overcomes the arguments made by Australia in the first round. In

particular, in the face of the undertakings provided by the Attorney-General, Timor-Leste cannot

point to any irreparable harm. And, hence, no urgency can be shown.

2. In relation to urgency, Timor-Leste suggested that any remedies in an Australian court

f'o may not be effective and did so by reference to Administrative Decisions (Judicial

Review)ct • However, this is not the only basis upon which to challenge decisions such as that

taken under theO Act. The relevant legal bases and the courts in which actions might be taken

include Section(v) of the Australian Constitution and th~ASIOh Coofficers and
i~
the Attorney-General are subject to that provision and, ifjurisdictioniÏ'.Happlicable,that court.

3. Iwill~ now address a couple of miscellaneous matters that were touched on by

Sir Michael this morning. The first is that there was certainly no disrespect intended, as suggested
26
by Sir Michael this mor,in Australia's comments that it would not be raising matters of
""""""""""-"---------""--------------------------------------------------"""""--------------------------------------
-=---~=====}tlr anS<ar aiîlol.issŒH1fX~at-iis leaficü-ii-at.81iü1alslrm:eCI1----e-s-

stated, we had thought that this statement might be helpful to the Court. If what Sir Michael is

suggesting is that Australia should have indicated that it accepted there is prima facie jurisdiction

and admissibility that is an entirely different matter, particularly given that we have reserved the

right to raise questions of jurisdiction and admissibility at the merits stage.

4. Secondly,r Michael pointed to a difference between the exceptions to legal professional

privilege as it applies in domestic Lawand the exceptions to legal professional privilege as they

25
CR 2014p.21par40 (Wood).
2CR 2014p.14par8 (Wood).

@ CR..'l..JI.}241(><W·"(Cc:~<tlA). -23-

apply under internationalla• In this respect, I would simply refer the Court again to the Report

. ~~~~
by independent expert James Spigelman, in the St.it1ffïl5case, made in the context of

international law, that privilege "does not extend to communications which undermine the integrity

of, or otherwise constitute an abuse of, the administration o• justice"

5. Mr. President, Members of the Court, moving to the matter of the plausibility of rights

relied upon by Timor-Leste, Sir Michael Wood this morning stated that Australia had not addressed

most of the points Timor-Leste made on this matterI thought we had- soI apologize at the

start, if sorne of what I have to say seems familiar. Sir Michael also accused Australia of using the

well-known tactic of overstating a proposition in order to knock it clown. I believe this was in

relation to my statement that Timor-Leste claims, without any basis, that State property and papers

enjoy "absolute immunity"• Sir Michael took umbrage at the reference to the term "absolute". I

apologize ifi implied that counsel for Timor-Leste used that term, when they did not.

6. But I want to move to the real overstatement, and not a merely semantic one, and I also

wish to explain why I used the word "absolute".The real overstatement- and this time an

overstatement of law- was made by Sir Michael on Monday when he referred to, without

qualification, a general principle, that is, the rights of Timor-Leste: "as a sovereign State, including

inviolability of its documents and their entitlement to immunity from measures of cons•raint"

This overstatement, I would say, was compounded by Sir Elihu's application of the principle to the

context of this case: "The Timorese rights are, moreover, entitled to recognition no matter what

special provisions may be asserted by Australian law against them."

7. This is indeed in the nah1reof an absolute right asserted by Timor-Leste. While treaties

and customary international law set out particular immunities applying in particular circumstances,

they do not support an immunity of the breadth put forward by Timor-Leste, either expressly or by

combining ali the treaties together to underpin a general principle, as Timor-Leste now admits that

2CR 2014/3, p. 13, para. 5 (Wood). 1
.J-....:;~c..' 1 \M\.-.c;)- l:'Aac ~l~vdelr:l...~r\\-vl.lc.g-.d
/f=R 2014/2, p. 28, para. 29 (Ca~c....,. ';' ..I-la,.:.erJ--".-:>.:Go"c.r"'""<&\C::C>J\aclo..
29 1
CR 2014/3, p. 15, para. 1 (Wood)l~'Dee.e..cr l::.J~;. c:kd o.l-
°CR 2014/3, p. 18, para. 27 (Wood).

3CR 201411, p. 36, para. 17 (Wood).

3CR 2014/1, p. 28, para. 25 (Lauterpacht). -24-

it is doing. This morning, Sir Michael, after referring to a "network of treaties and customary

international law", stated: "The similarities, both in content and rationale, between the different

types of immunity have helped develop and form the broader principles that have emerged into a

general customary law ofState inviolability and immunity." 33

8. 1looked in vain for a footnote reference to support this mega-immunity and there was no

footnote. We ourselves can find no authority to support it and certainly no judicial authority. It is

indeed an overstatement, and this time, as 1said earlier, one of law.

9. lt is important not to assume that an immunity that expressly applies in one particular

context applies more generally orto another context- and this is what Timor-Leste has done. For

example, Sir Michael stated this morning: "Timor-Leste relies on the principles reflected in ali

immunities: that substantive law, which normally applies, cannot be enforced against aState, be it

in relation toits diplomats, its special missions or its property." 34

1O.Yes, there are specifie immunities applying to diplomats and special missions- but this

does not mean they can be applied by sleight ofhand simply by adding the words "or its property".

11. Just to clari:tythe position in relation to treaties as weil, 1would Iike to make clear once

again that there is no immunity or inviolability under existing convention to which both Australia

and Timor-Leste are party that affords immunity to the documents and other material removed

from 5 Brockman Street, Narrabundah.

12. Sir Michael suggested this morning that 1 was "highly selective" in responding to

Timor-Leste's submissions, and asks where is Australia's response to a number of examples of

..............................35 .........................................................................
........................................................................
................................
... illegedimmunity to which it refers . The fact is, that none of the examples to which Timor-Leste.·-~-----

refers, such as the Spanish/UK exchange in 2013 (tab 17 of Timor-Leste's judges' folders) or

6
particular passages such as in Professer Denza's texe clearly affirm the proposition that

Timor-Leste seeks and needs to establish, namely, that the records held in an agent's office enjoy

absolute immunity from local criminal or related coercive processes. In particular, the Spanish/UK

33CR 2014/3, p.18, para.28.(Wood).

34CR 2014/3, p.15, para.13 (Wood).
35
CR 2014/3, p.18 para.28 (Wood).
36
CR 2014/3, p.19, para.29 (Wood). -25-

incident concerning bags in transit clearly marked as official relates to a situation expressly

contemplated by the Viennaention- namely, communications between a State and its

diplomatie representativesther country. The incident did not involve documents located in

premises of a commercial agenSimilarly, Denza at page 226 is referring to "official

correspondence of the missshe is not referring to documents held in the premises of a

7
commercialgene·

13. This morning, Sir Elihu also accused Australia of ignoring the municipal law authorities

deployed by Timor-Lestesupport of the proposition that a broad and general "principle" of

38
immunity or inviolability applies to ali State property as a matter of •ustomary internationallaw

However, those cases, we would submit, do not provide any assistancc:;.,this Court.

~ ~
14. They include the cases of Rahimtoola v. Nizam of Hyderabac!J. the SS "Cristina'Kand
@
Juan Ysmael & Co !ne v. Indonesian Governmenx_ They ali concerned judicial proceedings and

they were alithe 1950s.

15. The passages from those cases relied upon by Timor-Leste reinforce the generaliy and

weli-understood rulesrisdictional immunities relating to proceedings before a court. They do

not address the circumstances case.

16. Nor does the decision of this Court in Germany v. Italy, which also concerned

jurisdictional immunity and providest for a general right of immunity and inviolability of
8>
document~

17. Sir Michael this morning also sought to assert the application of the principles of

jurisdictional immunity to the circumstances of this case. There are two points to be made here:
!-1-'r
the fii~t hoght to do so by saying that there are prospective criminal prosecutions in this case,

and therefore they could amount to a proceeding for the purposesnvention and

customary internationalWeil, it is quite clear that the 2004 Convention does not apply to

criminal proceedings. The ILC Commentary makes this clear:

3E. Denza, Diplomatie Law, 3rd p.226.n, OUP, 2008,

3CR 2014p9 (Lauterpacht).
~ [-1<\S3J3=\'1.
~ [1\""llB:~z~.:

~ [Mst.;:WLRS;!A.
~ ~"'",.; r,~,..":.:=--.8och(_."'""'1/-:ï:..J":.in~":....j~.'à,).;.<.•~~l--.., -26-

[.,.) ......"'

'~ drat articles do not define the t39m 'proceeding', it should be understood that
they do not cover criminal proceedings."

I will not repeat what I had to say the other day, other than to say it is quite, clear both under
"c.o...r+',
international law and Australian domestic law, that the Attorney-General is not aA~- he

certainly does not look like one anyway.

18. I now turn to the question asked by you, Vice-President Sepulveda-Amor. You asked-

this was your third question-you asked Australia the following question:

"Does Australia consider that, under customary international law, State
documents are entitled to international protection in the form of immunity and
inviolability outside the frameworkf diplomatie and consular relations? If so, what

is the extent of international 0rotection that Australia claims for its own State
documents in foreign territory?"

19. Australia would answer that question as follows: the principal immunities applying to

State documents outside the framework of diplomatie and consular relations are those set out in the

treaties and conventions in force and the customary international law reflective of those

conventions. An example of a relevant convention is the New York Convention on Special

41
Missions •

20. While Australia does not accept, as asserted by Timor-Leste, that there is a "general
@>
customary law of inviolability and immunity,k there are more closely defined immunities under

customary international law, suchs thejurisdictional immunities of States from the courts of other

States, which I mentioned earlier.

21. As to the second partf your question, Mr. Vice-President, the degree of protection that

their location.It suffices to say that if Australian Government documents were located in the

territoryof another country in exactly the same circumstances as in this case, they would not be

inviolable or immune. That concludes the answer to the question.

Mr. President, let me coll.clude;by-wof a summary:

39
Draft Article 2 Paragraph 1 (a), Yearbook of International Law Commission, 1991, Vol. II, Part Two, 14.
4°CR 2014/3, p. 25.
41
1400 UNTS 231.
(§)CR, foAlt~~ >•.A"1 p..ra.~ ( W.:old). -27-

There is no general customary international law principle concerning the immunity and

inviolability of State property and documents. Such a principle is implausible.

Secondly, there is no jurisdictional immunity applying to the documents removed from

5 Brockman Street, Narrabundah. There is no proceeding. There is no court. As the immunity

does not apply, the question of its plausibility is not even reached.

Thirdly, Timor-Leste has not identified any other form of immunity or inviolability that would

apply to those documents under either customary or conventional international law.

22. Mr. President, Members of the Court, thank you for your attention. I now ask you to cali

upon the Agent to conclude Australia's observations.

The PRESIDENT: Thank you very much, Mr. Campbell. I give the floor to the Agent,

Mr. John Reid. You have the floor, Sir.

Mr. REID:

CONCLUDING REMARKS

Introduction

1. Mr. President, Members of the Court, given the hour I will be mercifully brief. But

before I conclude Australia's submissions, there are two brief points which demand

response from me, on behalf of the Government of Australia.

2. First, Sir Michael this morning remarked that it would be helpful if I, as Agent, could

confirm for the Court that the undertakings provided by the Attorney-General bind Australia as a

matter of international law. Allow me to repeat what I said yesterday for the benefit of our friends.

3. And I quote, from paragraph 6 ofyesterday's transcript:

"[T]he Attorney-General of the Commonwealth of Australia has the actual and
ostensible authority to bind Australia as a matter of both Australian law and
international law."

4. I need say no more. Again, as I said yesterday, Australia has made the undertakings.

Australia will honour them.

5. Second, my friend His Excellency Ambassador da Fonseca this morning sought to litigate

before you the maritime boundary between our two nations. -28-

6. That matter is simply not in issThe treaties which govem the maritime

arrangementsn the Timor Sea ought be respThey remain in force and Australia is

committed to their faithful implementation.

7. Australia does regret the description of the maritime delimitation outlined by

His Excellency this moming.s a description which we would oppose in the most strenuous

terms.

8. Mr. President, Members of the Court, you have now heard Australia's submissions.

Briefly, they can be summarized thus:

9. First, there are no plausible rights sought to be protected by Timor-Leste in this case. Our

friends are effectively asking this Court to accept a notion of extra-territorial reach of absolute

immunity so broad as to render obsolete the Vienna Convention on Diplomatie Relations, the

Vienna Convention on Consular Relations, and customary international law on State immunity.

10. Second, there is no urgency. For ifthere were, Timor-Leste would surely have availed

itself other more appropriate forums at sorne point in these last seven weeks.

11. Third, there can be no irreparable harm. To the extent that any legitimate right resides in

Timor-Leste-a point which we refute in the stronthe comprehensive and solemn

undertakings provided by the Attorney-Generalia to this Court must surely satisfy you

that those rights are sufficiently protected pending finaljudgment in these proceedings.

12. Mr. President, Members of the Court, 1 would respectfully echo the comments of my

friend His Excellency Ambassador da Fonseca this moming. Australia and Timor-Leste do have a

--~--·~-==·aos~re -l·-a:sensaliiipnsühi-(Jl~_tI.!l_nrr~~P~~t-_andffie~asfjiïJ_:=._My:goveriïmenf···

remains strongly committed to the continued growth ofthat friendship.

13. 1 would at this point, Mr. President, conclude by thanking my delegation and

distinguished counseJ fortheir tirelessfofthe Govemmentof Australia.

14. 1would thank also the Registrar and his staff, the interpreters and, of course, thank you,

Mr.President, Members of the Court, for the attention you have paid to Australia's oral pleadings

over the coursehese hearings. -29-

Final Submissions

15. It now falls tome to read the Final Submissions of Australia.

16. In accordance with Article 60 of the Rules and having regard to the Request for

Provisional Measures filed by the Government of the Democratie Republic of Timor-Leste, and its

oral pleadings,

"1. Australia requests the Court to refuse the Request for the indication of provisional

measures submitted by the Democratie Republic of Timor-Leste.

2. Australia further requests the Court stay the proceedings until the Arbitral Tribunal
has rendered itsjudgment in the Arbitration under the Timor Sea Treaty."

17. A signed copy ofthese Submissions has beentransmitted to the Court.

18. Mr. President, Members ofthe Court, thank you.

The PRESIDENT: Thank you, Sir. The Court takes note of the Final Submissions of the

Government of the Commonwealth of Australia which you have just read as its Agent. This brings

the present series of sittings to an end. It remains for me to thank the representatives of the two

Parties for the assistance they have given to the Court by their oral observations in the course of

these four hearings. In accordance with practice, 1would ask the Agents to remain at the Court's

disposai. The Court will render its Order on the Request for the indication of provisional measures

as soon as possible. The date on which this Order will be delivered at a public sitting will be duly

communicated to the Agents of the Parties. Since the Court bas no other business before it today,

the sittingis closed.

The Court rose at 6.05 p.m. .....
;•

·---------------

\

Document Long Title

Audience publique tenue le mercredi 22 janvier 2014, à 17 heures, au Palais de la Paix, sous la présidence de M. Tomka, président, en l’affaire relative à des Questions concernant la saisie et la détention de certains documents et données (Timor-Leste c. Australie)

Links