Corrigé
Corrected
CR2014/2
International Court Cour internationale
of Justice de Justice
THE HAGUE LAHAYE
YEAR2014
Public sitting
lteld on Tuesday2JJanuary 20J4,atJO a.m., at tite Peace Palace,
PresidentTomka presiding,
in tite case concerniQuestions relating to the Seizure and Detention
of Certain Documents and Data
(Timor-Leste v.Australia)
VERBATIM RECORD
ANNÉE2014
Audience publique
tenue le mardiJ janvier20J4, àJO heures, au Palais de la Paix,
sous la présidencede M. Tomka, président,
en l'affaire relativeesQuestions concernant la saisie et la détention
de certains documents et données
(Timor-Leste c. Australie)
COMPTE RENDU -4-
Present: President Tomka
Vice-President Sepùlveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Bhandari
Judgesad hoc Callinan
Cot
Registrar Couvreur Non corrigé
Uncorrected
CR2014/2
International Court Cour internationale
of Justice de Justice
THE HAGUE LAHAYE
YEAR2014
Public sitting
/zeldon Tuesday 21 January 2014, at 1a.m.,at tlzePeace Palace,
President Tomka presiding,
intlzecase concerningQuestions relating to the Seizure and Detention
of Certain Documents and Data
(Timor-Leste v. Australia)
VERBATIM RECORD
ANNÉE2014
Audience publique
tenue le mardi 21janvier 201à JO heures, au Palais de la Paix,
sous la présidencede. Tomka, président,
en l'affaire relative àQuestions concernant la saisie et la détention
de certains documents et données
(Timor-Leste c. Australie)
COMPTE RENDU -2-
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, jugesd hoc
M. Couvreur, greffier -4-
Tite Government of Timor-Leste is represented hy:
H.E. Mr. Joaquim A.M.L. da Fonseca, Ambassador ofthe 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
ofthe 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::>i' ......\ ..
Mr. Andrew Legg,\'Pl'r.Blm , ember of the English Bar,
as Counsel;
Mr. Andrew Sanger, Lauterpacht Centre for International Law, Univers!ty<:>fÇ~_l!l_bx!c:!g~,
---~--~------~~~-----·---·-·-----~--~-~------·-·---------···--·--·-----·..---··----~---~----····~----·-----···-···-··-·····-
as Junior Counsel;
Mr. Bernard Collaery, Principal, Collaery Lawyers,
asAdvisor . .. - 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. JoséLuis 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 àl'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, associée auCabinet DLA Piper UK LLP,
Mme Emma Martin, collaboratrice au Cabinet DLA Piper UK LLP,
Mme Jolan Draaisma, collaboratrice principale au Cabinet Collaery Lawyers,
'J)p~;\.
M. Andrew Legg, ~' membre 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-
Tite Government of Australia is represented hy:
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 Professorf 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
..x Sydney, Barrister, 7 Selb()e hambers, Sydney, and Essex Court Chambers, London,
Mr. Rowan Nicholson, Barrister and Solicitor, Supreme Courtof South Australia, Research
Associate, Lauterpacht Centre for International Law, Universityridge,
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:'I'odd-~uinn;-First·Secretary;·E KmbngssmyortfAuNethralrds-;i--t--e··
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 1'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, titulairede 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 !'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'Universitéde
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 !'Attorney-General,
Mme Stephanie lerino, juriste hors classe, services de 1'Attorney-General,
Mme Amelia Telec,juriste hors classe, services de l'Attorney-General,
X Mme Esmel'JShirlow,juriste hors classe par intérim,services de l'Attorney-General,
Mme Vic ki 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: Good morning. Please be seated. The sitting is now open. The Court
meets today to hear the first round oral observations of Australia on the Request for the
indication of provisionalmeasures submitted by Timor-Leste. I now cali on
Mr. John Davidson Reid, Agent Australia. You have the floor, Sir.
Mr. REID:
Introduction
1. Mr. President, Members of the Court, it is a great privilege for me to appear before this
Court as Agent for the Government Australia. In doing so, I wish to place before the Court my
Government's high regard and respect for this Court and the system of international justice in
which it exercises its functions.
2. But it is with mixed feelings that Australia appears On the one hand, we are
pleased to be given the opportunity to reaffirm our support for this Court's roleeful
settlementf disputes according to the rule of law. On the other hand, we are disappointed by the
circumstances by whiche find ourselves before the Court and the serious allegations which were
made againstus yesterday. Australia's actions now in issue before you were lawful. They were
justified. And they were respectfule strong and positive relationship our two nations share.
Outline of Australia's case
___________ jurisdiction_and_jndeeLwas_the-beneficiary-of--such-measures.---However,
.--in-achieving--those---
measures, we were held to a certain standard, and it is a standard which Timor-Leste simply does
not meet here.
4. In considering whether to indicate provisional measures- ~a_sit:)Çgu,r_I!~1e~!f>~
balance the "respective rights" of the Parties. On that issue, Australia has already provided ample
undertakings to protect any legitimate right said to resideLeste in this case. In light of
those undertakings, the indication of provisional measures sought in this case can only have the
effectf impeding Australia's lawful and legitimate protection of its national security. -9-
Nature and force of undertakings given
5. Mr. President, our friends yesterday made argument from the Bar table concerning the
nature, force and relevance of various written undertakings made by the Attorney-General of
Australia, Senator the Honourable George Brandis Q.C. Those submissions cannot go unremarked.
We were- to say the least- surprised to hear it argued that the material in question may have
been under continuous review since 3 December 2013, notwithstanding a clear and unambiguous
undertaking from the Attorney-General to the contrary.
6. Mr. President, the Attorney-General ofthe Commonwealth of Australia has the actual and
ostensible authority to bind Australia as a matterf both Australian law and international law.
7. We have included in your folders- you do not need to go to them now- two
documents received overnight from the Attorney-General in Canberra. These documents include a
new and broader undertaking made by the Attorney overnight in direct response to the matters
raised- for the first time- by our friends at the Bar table yesterday. You will be taken to these
shortly by the Solicitor-General.
8. To question the veracity of these undertakings, and to suggest from the Bar table that the
undertakings have either not been implemented or are somehow without legal force, as our friends
did yesterday, is both wrong as matter of law and, frankly, offensive. Australia bas made the
undertakings. Australia will honour them.
Structure ofRespondent's oral pleadings
9. Mr. President, following my short statement, the oral submissions of the Respondent will
be presented in the following order:
10. Mr. Justin Gleeson S.C., Solicitor-General for the Commonwealth of Australia, will
address the essential factual and legal background to this Request that was simply not properly
exposed to you yesterday.
11. Second, Mr. William Campbell Q.C. will deal with the preconditions for provisional
measures. He will demonstrate that the absolute international law rights sought to be protected by
Timor-Leste- essentially amounting to a new form of extraterritoriality- are implausible and, as
such, do not meet the test establishedby your jurisprudence. - 10-
12. Third, Mr. Henry Bunnester Q.C. will highlight the Applicant's inability to satisfy the
Court as to the link between the alleged "rights" that form the basis for Timor-Leste's principal
Application and the provisional measures being sought. He will deal also with questions of
requisite urgency and irreparable harm which we would submit are plainly not met in this Request.
13. Finally, Professor James Crawford S.C. will show that Timor-Leste has brought to this
Court a matter of which another tribunal is already properly seised, and as to which that tribunal is
already the constituted arbiter. In such circumstances, it is simply not appropriate for the Court to
exercise its discretion to indicate provisional measures.
Final comments
14. Mr. President, the sum of these Submissions is that this Court plainly should not
entertain the Applicant's Request to indicate provisional measures in this matter. The Applicant
has not identified plausible rights sought to be protected. There will be no irreparable harm. And
there is no urgency.
15. Mr. President, Members of the Court, thank you for your attention. 1now ask you to cali
upon Mr. Gleeson, Solicitor-General for the Commonwealth of Australia, to continue our
presentation.
The PRESIDENT: Thank you, Mr. Agent, and 1give the floor to the Solicitor-General of
Australia. You have the floor, Sir.
The true factual and legal background to Timor-Leste's Request
1. Mr. President, Members of the Court, it is an honour to appear before you again on behalf
of Australia, even though it may be one that 1did not expect to come so soon.
2. Yesterday you heard an impassioned, and 1 must say inflammatory, address by
Sir Elihu Lauterpacht on behalf of Timor-Leste. He told you that standards had dropped in
Australia since 1975 when he was a senior legal adviser in our country. He impugned the integrity
and conduct of the Attorney-General of Australia and of unnamed Australian officers acting under - 11-
his responsibility. You will recall that he described our conduct as unprecedented, inexplicable,
improper and unconscionable.
3. Coming from an authority such as Sir Elihu, those remarks wound. We would much have
preferred that Timor-Leste had taken up this Court's invitation to file written observations so that
the charges made yesterday could have been made with precision and with the usual reference to
supporting fact and law. That did not occur. Had that course been followed, it would have enabled
the Attorney-General of Australia- who has been giving this matter his most conscientious
attention- to consider in advance of the hearing whether the comprehensive package of measures
he has put in place which balance two interests- the national security of Australia and the proper
international dealings between Australia and Timor-Leste- needed supplementation.
4. We have, with the Attorney-General overnight, carefully considered what was said
yesterday. Australia proposes to respond constructively, to assist this Court in dealing with the
Request before you. In summary, in ali but one respect, the complaints of Timor-Leste remain
unfounded. There was one concern, explained yesterday, for the first time clearly, that should be
met by Australia. I will come later in my address to explain how that concern has been met by the
undertakings you now have before you this morning. With that supplementation, no provisional
measures should be indicated.
5. I propose to structure my address around six points. The subsequent presentations for
Australia will build on those six points, within the framework ofyour jurisprudence on provisional
measures. I propose to establish that Australia's conduct in this matter has been and remains of the
same high standard that Sir Elihu deposed to yesterday from his time in Australia in 1975.
1. Timor-Leste's assertion of an absolute right of property at international law is
unsupported
6. Let me come to my first point. Timor-Leste's assertion of an absolute, unqualified right of
property at international law is unsupported. Yesterday.>most of the case hinged on this x
proposition: l!ach State has an absolute right of property in ali documents produced by it or its >ex
agents in the territory of another State, and such property is inviolable and immune from any
judicial or executive actionin that other State; in effect a new form of extra-territoriality should be
recognized. Mr. President, Members of the Court, that assertion, if accepted at the final hearing, or - 12-
even if accepted provisionally today, would amount to a quantum leap in the expansion of public
international law. It would render superfluous the range of conventions currently in place-the
Vienna Convention on Diplomatie Relations, the Vienna Convention on Consular Relations,
customary international law of sovereign immunity, the United Nations Convention on the
JurisdictionalImmunities- ali are to be swept aside according to the thesis of Timor-Leste.
7. The thesis would allow a State adventitiously to expand its sovereignty into the territory of
other States. Mr Campbell will come back to this first matter, but let me say now the thesis is
novel, it is implausible, and a highly dangerous basis upon which to grant the drastic provisional
measures as inthe present case.
2. Correcting the factual record
8. Many assertions were made yesterday which were wrong or unsupported by evidence.
The record must be corrected. Let me take but four matters.
9. Firstly, it was asserted that the CMATS Treaty was "seriously disadvantageous" to
Timor-Leste. But what you were not told was that that Treaty provided Timor-Leste with a
substantial improvement in its position under the earlier Sunrise Unitisation Agreement (United
Nations, Treaty Series (UNTS), 2483 at 317). Under the earlier agreement, revenues were shared in
the Sunrise-Troubador field: 18.1 percent Timor-Leste, 81.9 percent Australia. Under CMATS,
that was altered to fifty-fifty.
1O.A second matter. You will recall the bold, unqualified and unsupported by evidentiary
---------~-~-~---------------~---~---~---------,--
espionage during the negotiation of the CMATS Treaty. He asserted that this conduct was a breach
of the criminal law of Timor-Leste and possibly also of Australia. That matter is not an issue
before you, although it is before the Arbitral Tribunal. No evidence was offered for that irrelevant
assertion. It should-be dismissed by you;
11. Thirdly, Sir Elihu's assertions concerning the manner of execution of the search warrant
at 5 Brockrnan Street, Narrabundah bear little resemblance to the version of events as understood
by our Government. No evidence was provided to support those assertions and you should dismiss
them. - 13-
12. Fourthly, you will recall that he made a number of assertions about the contents of the
removed material. He placed no proof before you asto those assertions. We, as the Australian
legal team, as you know, are properly precluded from inspecting those documents. We simply do
not know whether those unsupported assertions are true.
3. Australia's conduct was in conformity with the law
13. Let me move to my third point: Australia's conduct was in conformity with the law,
domestic and international. When Sir Elihu yesterday described our conduct as "inexplicable",
"improper", "unprecedented", "unconscionable", he chose to ignore- saying he would await our
oralargument- the detailed statutory framework which underpinned the issue of the warrant. We
offered you that framework in our Written Observations. Unlike Timor-Leste, we were
forthcoming with Written Observations. We do not believe in ambush. Let me highlight sorne of
the key features of that statutory framework we have outlined for you.
14. Firstly, you know that the materials were removed pursuant to the operations of
Australia's security intelligence agency, "ASIO". ASIO operates consistently with widespread
State practice and under tight domestic legal control. Could I invite youo to the judges' folder,
at tab6, where you will find a table summarizing the practice of a range of States who maintain
sucl1agenctes .
~"'"""
15. You will also see from that tableka range of States have foreign intelligence agencies,
sorne States have agencies which perform both functions on a unified basis.
16. Timor-Leste, for example, on p. 18, has a national intelligence service concerned with
domestic and foreign intelligence.
17. It follows from this brief review of State practice that there is nothing unusual about the
fact that Australia hasn intelligence agency such as ASIO, or that it should be given powers such
as the present to collect intelligence, and thereis certainly nothing unlawful about this, under
domestic law or international law.
1Jt~fà elss, a'af'Extracts from Municipal Legislation establishing Intelligence Organisations". - 14-
18. A second matter is to take you more specifically to the key provisions of the ASIO Act
2
which bear on this matter . Section 17 (1) sets out the functions of ASIO (tab 8). You have them
3
before you . [Screen on] Critical to those functions is the concept of security, and you have before
you the definition of security in section 4 of the ASIO Acé, a broad but appropriate definition
given the range of security threats to States in our time.
19. Thirdly, let me now look more closely at ASIO's rights and, indeed, responsibilities in
relation to the removed material. The materials were removed because of a warrant issued by
under section 25 of the Act, for the purpose of collecting intelligence on a matter affecting the
5
security of Australia, concerning possible espionage •
20. The warrant was made after a request from the Director-General of ASIO, subject to
rigorous internai consideration and following a decision by the Attorney-General, a personal
decision, that he was satisfied- within section 25 (2) - that there were reasonable grounds for
believing that access by ASIO to records or other things on the premises would "substantially assist
the collection of intelligence in respect of a matter that is important in relation to security".
21. Those were the matters that Senator Brandis was satisfied were present in this case. In
6
the judges' folder at tab 12,you have the search warrant and you can see that the Attorney-General
made the declaration in the terms required by the Act and he proceeded to give the appropriate
authorizations to ASIO, consistent with the Act.
2Australian Security Intelligence Organisation Act 1979 (Cth)\Ejwr;5g8s:'fslr;18rtab 7]1•
...... --··-··:AusfraiianSecürit)!Tnigenc·(:Drganisation-:-Acff979TCUï)~ feïi8Jf;of·l··T···- TUi:lâ~'-telâi!F,
---·----·-·----------4AuSi:raiTan-Secürlf:YrntellTgenceÜr
ganisationAc1979 (Cth), Sectio4 provides in pathat-"securi ·t·y'~eans:
"(a) the protection of, and of the people of, the Commonwealth and the severa! States and Territories from:
(i) espionage;
(ii) sabotage;
(iii)politically motivated violence;
--· .... .. _(jy)_p.romo!i.QILOfÇQ!!!IÜJlQl~~
(v) attacks on Australia's defence system;
(vi) acts of foreign interference;
whether directed from, or committed within, Australiat."H:iwèges'foldct, tab 7]1
5
Australian Security Intelligence Organisation Act 1979 (Cth), s 25 (1) provides in relevant part that: "If the
Director-General requests the Minister to do so, and the Minister is satisfied as mentioned in subsection (2), the Minister
may issue a warrant in accordance with this section."I[Jwr;ig8s7.Jlèer, t!lb
6
"Australian Security Intelligence Organisation Act 1979 (CSearch Warrant under Section 25" IB~:.~Eiges'
.fe+dCI,tfI2i. - 15 -
22. Let me retum to something else said then by Sir Elihu yesterday, which was that it would
be up to Australia to explain to you the precise details of the national security consideration that
drave the warrant. It is not for Australia to disclose -further than 1 already have - the precise
security interest that drave the warrant; nor, course, is it for this Court to attempt in sorne way to
pronounce upon the value ofthat national security interest.
23. If Timor-Leste is suggesting that there is sorne international law norm that States cannat
collect intelligence, without making public the particular security issue, that would be to invite you
to pronounce upon matters of espionage generally which, Sir Elihu yesterday correctly said, were
not before you.
24. What is critical from what your heard yesterday is that Timor-Leste has made no effort
before an Australian court, or before you, to establish any breach of Australian law in the issue of
this warrant. There is no basis for this Court to do other thau accept that a proper security interest
has been identified as the basis for the warrant, that the warrant was issued and executed in
accordance with Australian law, and that Australian law is consistent with State practice in these
matters.f[here is one other aspect of this third point which is the structure of the ASIO Ac1'\.,+-ol'"" 'l""f.~...,
25ATheASIO Act goes on to strictly regulate the period for which the materials may be held,
~c:l-'01'
you find that in 6eotiel\ 25 (4C), the effect of which is that ASIO never acquires ownership of the
7
material. It has only a right of use-use limited by time and purpose •
26. And further to that, the Act strictly regulates the disclosure of intelligence and
information by virtue of sections 17 and 18; they are fmmd in the ASIO Act which is reproduced
at tab7. The repeated suggestions or insinuations yesterday that material may have left ASIO and
may have been closely considered by Australian officers were unfounded and they should be
withdrawn.
4. Timor-Leste, probably, lost any claim to legal professional privilege over the documents
27. Let me turn to my fourth point. Timor-Leste, probably, has !ost any claim to legal
professional privilege it might otherwise have over the seized material. You gathered yesterday
that Timor-Leste is invoking, perhaps in the alternative, a claim to legal professional privilegin
7AustralianSecurity IntelligenceOrganisationAct 1979(Cth},s 25 (4Cf'18er,ta7f. - 16-
sorne or ali of the removed material. As a matter of Australian law, as is the case with the law of
most countries, legal professional privilege does not exist where the communications are produced
in pursuance of a criminai offence, fraud or other improper purpose. If 1could invite you to turn to
tab 14, youwill see an extract from the decision of the High Court of Australia in the
Commissioner of Australian Federal Police v. Propend Finance Pty Ltd. We have extracted, at
p. 514, the statement of principle from the judgmenof the Chief Justice of Australia,
Chief Justice Brennan, concerning the crime/fraud exception. 1invite you to read that statement of
8
principle a1dinvite you to note, from the footnotes, its sources lie in EnYou werew
referred, yesterday, to Halsbury 's Laws of England on legal professional privilege. The passage
you were not referred to from Halsbury, consistent with Chief Justice Brennan, is found at tab 15;
~\.._\-\..;~
l-I ittis\saidtthis siFRpl)t:"the privilege does not extend to communications [made] for the purpose of
committing a fraud or crime".
AS
28. That is Australian law, that is English law and you wi~l ofyour folder, from
a brief survey State practice: many States recognize either the crime/fraud exception, or other
appropriate exceptions such as for national security.
29. Let me turn from the principle to this case. Australia has reasonable grounds to invoke
the crime/fraud exception to privilege.Those grounds rest in the public statements of
representatives of Timor-Leste. Let me go to but sorne of them. At tab 17you have a report in a
Timorese journal which includes statements made by Minister Pires of Timor-Leste. He was
reported as alleging: "ASIS [had broken] into and bugged East Timorese cabinet rootns". You
second column. You will also see Minister Pires attributing the source of his information to an
9
ex-ASIS employee, currently unwell in an Australian •ospita1
30.\l)+ sl~lfttaè 12) You will also see in that article, in the third column, in the last two
paragraphs that Minister Pires's lawyer, Bernard Collaery, the man described yesterday as an
x eminent lawyer, said the eviden"irrefu te Austrlia~aut"oatis are weil aware we
8
Commissioner of Australian Federal Police v. Propend Finance Pty Ltd (1997) 188 CLR 501, 514 (Brennan CJ)
~w!Oi fadstttt14f.
Julio da Silva, "Xanana still Waiting for Response from Australia about CMATS", Jornal Independente,
31May 2013l[ju!Oigi!5ta-37}.0r - 17-
are in a position to back that up". It would appear that Mr. Collaery is referring to disclosures he
10
says were made to him by an ex-ASIS offi•er
31. To complete this picture, could I ask you togo to tab 19, which is Mr. Collaery's letter of
5 December, where he records the material removed. If you could go to page two, you will see that
the first item a document described as the affidavit of. . . The person's name is anonymized.
Q.t\
And you will see the last iis~n toiumtelte ih handwritten comments stating "this is a
statementof' ...Person's name anonymized. As I have said, the Australian legal team does not
have access to that material, properly so.
32.On the basis, however, of what 1have just taken you to, there are reasonable grounds to
consider that the materials over which Timor-Leste asserts privilege may include written
statements, or affidavits,former ASIS officer, made to Mr. Collaery on behalf of Timor-Leste,
disclosing national security informationstralia. If that be the case, those disclosures would
involve the commissionof serious criminal offences under the law of Australia, and I reference
sections 39 and1 of the Intelligence Services Act 2001 (Cth), section 70 of the Crimes Act 1914
(Cth), and section.1 of Schedule 1 to the Criminal Code Act 1995 (Cth), which you have at
tabs20-22.
33. Not only that:Australia is not atone in prohibiting the disclosure of State secrets,
including intelligence obtainedhe course of employment with intelligence agencies. We have
provided you at tab 23, a brief reviewtate practice which indicates that similar prohibitions
existin the United States, Canada, the United Kingdom, France, New Zealand, Slovakia, Morocco,
Russia, Somalia, and India, amongsther10 You will note from that table at page 21, thax-
unsurprisingly- Timor-Leste has a similar criminal prohibition with punishments of up to
15years for breach of State secrets. If, as asked by Timor-Leste, you were to order the materials to
be delivered into your custody for a periodime, that would prevent two things happening.
1\::>1-
Firstly, an Australian coucou ilsde~t the documents and decide whether the crime/fraud
exception applies to any privilege claiSecondly,it would prevent ASIO carrying out its
functions to protect Australia's security by reference to these documents. I put it no
10
Julio da Silva, "Xanana still Waiting for Response from Australia about CMATS", Jornal Jndependente,
31 May 2013l-jHEigss't'eiEisr,tab 1{. - 18-
higher than that- it may weil also allow the continued perpetration of disclosures which breach
Australia's criminal law as theywould- in like circumstances- breach the law of Timor-Leste.
For that reason alone, you would not grant the provisional measures sought.
5. There is no "distortion" of the Arbitration
34. My fifth point is that, contrary to the assertions repeatedly made yesterday, there has
1\r~\ \;1ra
been no distortion or litigation advantage obtained in respect to the IHResrtal TdHe~.
Attorney-General's package ofundertakings is comprehensive and it meets any real concern.
35. The package ofundertakings includes:
(a) on 4 December the Attorney-General made his Ministerial Statement to Parliament, which you
11
have at tab 24 ,directing that the material was not to be communicated to those conducting the
Arbitration on behalfof Australia;
12
(b) next, you have at tab 25 , the direction to the Director-General of ASIO which has two
relevances to your proceedings. You will see in the fifth paragraph on the first page he
extended his direction once these proceedings had commenced such that the material was not to
be communicated to the lawyers for Australia in this proceeding before you, and on the second
page, you will see in the third paragraph a reference to the President's notification to Australia
under Article 74 (4) and the Attorney-General in the last paragraph put in place a direction to
ensure that, pending this hearing, the materials would not be accessed by anyone and he
instructedme to communicate those arrangements to you.
36. Let me come back to the matter I raised at the outset. A point raised yesterday by
Timor-Leste for the first time clearly, was a concern that the materials removed include documents
which relate to maritime boundary negotiations, beyond any issue in the Arbitration. Associated
with this was a fear expressed, witlr no clear foundation, thatAustralian officiais;-engaged in
maritime boundary negotiations, would look at the material. Leaving aside the lack of a basis for
11
Senator the Hon. George Brandis QC, Attorney-General, "Ministerial Statement: Execution of ASIO Search
Warrants", Dec. 2013\ jtu4ges'ffilà24. tt'lb
12
Letter dated 23 December 2013 from the Attorney-General, Senator George Brandis QC to Mr David Irvine
AO, Director-General ofSecurityl j1:1àgesta~!.er, - 19-
those propositions, the Attorney-General of Australia, being inforrned of these matters ovemight,
has determined and provided you now with the undertaking which is at tab 27 13• 1will invite you
to place close reliance upon that document as it meets- and more than meets- any legitimate
concern raised by Timor-Leste in this action. You will note two things:
firstly, under the declarations on page 1, the third declaration is that the appropriate direction
has been given to ASIO that the material is not to be communicated to any person for any
purpose other than national security purposes, including potential law enforcement referrals
and prosecutions, until final judgment in this proceeding or until further or earlier order from
this Court. That direction, as is expressed, continues until the final judgment on the
Application, not merely until your judgment on the Request and you will see from the
Attorney-General's four undertakings, on page 2, that he will not make himself aware of the
materials. lfthat circumstance changes he will first bring it to your attention; the material will
not be used by any part of the Australian Government for any purposewther than national x
security purposes, including potential law enforcement referrals and prosecutions and without
limitation. They will not be used for any purpose relating to the exploitation ofresources in the
Timor Sea or related negotiations, or for the purpose of this action, or for the purpose of the
arbitral proceedings.
the direction to the Director-General is found at the previous tab- tab 26- and could 1
observe one other aspect of that direction. On page 1 of the letter, in the fourth paragraph, the
Attorney-General has indicated, quite properly, that the ct1rrentdirection to ASIO to keep the
material sealed for ail purposes until you can rule on provisional measures, will continue until
you give ajudgment on provisional measures.
6. The relevance of Australian domestic remedies
37. My sixth and last point is the relevance of Australian domestic remedies. lt is not to
suggest that thisis a diplomatie protection claim. It is, rather, that in the context of provisional
measures where the criteria include urgency, real risk of irreparable harm, and balancing of rights,
X"l-- ...,Crv,l.o, .u'\..aï\"",L..c. v. A..,,rn:,.l:.c,..
11ArF6itratRREietke Timm Sca Tref!.tt, Written Undertaking by Senator the Hon. George Brandis Q.C.,
Attorney-Generalf the Commonwealthof Australia,\19Dee.2~HEig folgr'!:e.e-2'1.
li\j"".c.r2o>A1, -20-
the failure to pursue obvious remedies in an Australian court should bear heavily on the caution
with which you should consider the grant of provisional m1.\ures.
Concluding remarl<S
38. {!he relevant Australian domestic remedies have been set out in our Written
Observa Ltetme ~onclude. A critical matter at the heart of this dispute is that, based upon
what Timor-Leste says publicly, Australia is entitled to have a legitimate concern that a former
intelligence officer may have disclosed and may threaten further to disclose national security
information, which would be a serious crime. Australia is entitled to be concerned that
Timor-Leste may be encouraging the commission ofthat crime.
39. Those disclosures threaten our security interests. The security interests are broader than
the fate of the Arbitration. To place classified information in the hands of a foreign State is a
serious wrong to Australia, as it would be with any nation.
40. The true object of this Request for provisional measures may be exposed as this.
Timor-Leste seeks to prevent Australia taking steps properly available to us under our domestic
law, law which is consistent with international law, to protect ourselves from a threat to security
apparently posed by a disaffected former officer.
41. In the light of these matters, upon which the following presentations will build, we would
ask the Court to decline the Request for provisional measures.
42. Mr. President, Members of the Court, could I now ask you to cali upon Mr. Campbell.
Thank y_9uvery_mu_ch,_Mr.._Gie_es_,_iIye_the_floocto_Mr._Campbell._ _
Y ou have the floor, sir.
Mr. CAMPBELL:
THE ESSENTIAL PRECONDITIONS FOR THE INDICATION OF PROVISIONAL
MEASURES ARE NOT MET (PART 1)
Introduction
1. Mr. President, Members of the Court, it is an honour to appear before you again on behalf
of Australia, albin~slightldiffer cap~city. It now falls tome, together with my colleagues - 21 -
Mr. Burmester and Professor Crawford, to demonstrate that Timor-Leste's Request does not satisty
the essential preconditions for the indication of provisional measures specified in the Statute of the
Court, the Rules and your jurisprudence. In particular we will together deal with three aspects of
the Request.
- First, the international law rights claimed by Timor-Leste are not plausible, as required by your
jurisprudence.
Secondly, the measures requested by Timor-Leste lack any link with the rights Timor-Leste
asserts under international law, nor (in the light of the undertakings given by Australia) is there
any risk of irreparable prejudice or any urgency to the measures sought;
and thirdly, another forum is already constituted, is already exercisingjurisdiction in relation to
the subject-matter of the Request, and is doing so on a timetable that should lead to a decision
by the end of this year. In these circumstances, the Court should not take on the responsibility
of ordering provisional measures.
More generally, and very importantly, it will be our submission that the measures sought by the
applicant State would circumscribe Australia's ability to deal with matters essential to its national
sovereignty, including its ability to protect its national security interests and to enforce its domestic
criminallaw.
2. I will deal with the first of the issues that I just mentioned, Mr. Burmester will deal with
the second, and Professor Crawford the third.
3. Before turning to the question of the plausibility of the rights asserted by Timor-Leste, I
would mention two matters. First, I wish to draw the Court's attention to the general principles
14
concerning the indication of provisional measures set out in Australia's Written Observations •
We ask you to keep these principles in mind when considering the present Request. Secondly,
while Australia may weil contest the jurisdiction and admissibility of Timor-Leste's Application
commencing the proceedings at the merits phase, or earlier, it will not be raising those matters in
relation to Timor-Leste's Request for provisional measures.
14
WOA,paras. 59-68. -22-
The rights upon which Timor-Leste purports
to rely are not plausible
4. Mr.President, Members of the Cou1now move to the question of "plausibility". As
noted by càunselor Timor-Leste yesterday, it is now accepted that the Court may only indicate
15
provisional measures"the rights asserted by the requesting party are at Je•stplausible"
5. It would be fair to say that until yesterday, Timor-Leste had provided only a very sketchy
outlineof the rights it is seeking to protect. Paragraph 10 of its Application merely referred to
"rights existing under customary international law and any relevant domestic law and as a
consequenceof the sovereignty of Timor-Leste under internatio•aThe Jackof specificity
is palpable.However, to the uninitiated, this Jack of specificity was cured by counsel for
Timor-Leste yesterday.r was it? Even a cursory examination of the rights put forward by
Timor-Leste yesterday which Australia is alleged to have breached, reveals that very specifie
rights- for example those relating to the inviolability and immunity of certain documents in
certain circumstanceshave been recast into alleged rights of a more general and widespread
nature suitable for the purposes ofTimor-Leste's case and beyond that previously recognized under
internationalw.
6. These expansive rights pay no attention to the realities of the equality of States and the
sovereign rights States to control their own affairs and they bear of no exception. As expressed
yesterday, they are indeed implausible.
7. For example, we have this statement by counsel on behalf of Timor-Leste:
"given the nature of the principal daim and the indubitable fact that Timor-Leste is a
··••••······~~sovereigrcSta:te proe cty:niiits-:at-teâuts:fualriape-t--s··
----·-~on-the-international-·plane-in-whatever .-•St-Tt-h-e-hT-y-mmary-seb-·-·~o--ated
rights are, moreover, entitled to recognition no matter what special provisions may be
asserted by Australian law against them."
1GR201411, P2'!para. 22 (LauterConstruction of a Roadin Costa Rica along the San Juan River
(Nicaragv.Costa Rica); Certain Activities carried out by Nicaragua in thv.Nicaragua), (Costa Rica
Request presented by Nicaragua for the Indication of Provisional Measures, Order of 13 December 2013, para. 15;
Request for Interpretation of the Judgment of 15 June 1962 in thTemple of Preah Vihear
(Cambodiv.Thailan(CambodivThailand), Provisional Measures, Order I.C.JReports 2(JI),
p. 545, paraCertain Activities carried out by Nicaragua in the BvNicaragua), Provisional
Measures, Order of 8 MarchI.C.Reports 2011 p. 18, paraQuestions relating to the Obligation to
Prosecute or Extradite (Belgium v. Senegal), Provisional MeasurI.C.Reports 2009151,009,
para. 57.
1Application, pO.a. 1
1CR 2014/1, pp. 27-28, para. 25 (Lauterpacht). -23-
And I repeat that "no matter what special provisions may be asserted by Australian law against
them". We find that a startling statement. This is, as the Solicitor-General said, a new form of
extra-territoriality which, if it existed, would have astonishing implications for international law
and domestic law, and the relationship between the two.
8. The rights as stated yesterday lead to a result that, no matter how carefully supported by
contrived reasoning, simply cannot be correct. For example, Timor-Leste's counsel stated:
"So our . . . point is that seizure was carried out pursuant to a warrant issued by a
'court' within the meaning of customary int18national law on State immunity as
reflected in the United Nations Convention."
9. Mr. President, Members of the Court, according to Timor-Leste, the Attorney-General was
the alleged "court" in question. It hardly bears stating that the Attorney-General is not a "court"-
not for the purposes of the 2004 UN Convention on the Jurisdictional Immunities of States and
19
their Property as alleged- or any other purpose. As with most other countries, Australia
respects the separation of powers between the Parliament, the Executive and the Judiciary. In that
respect, the Attorney-General is part of the Executive and is not a court.
10. This overstatement of rights also led to overstatements of effect that are simply
unsustainable. For example, counsel for Timor-Leste stated:
"The Australian Observations fail to recognize that the seizure of another State's
property is as much a violation of international law as would be the seizure of any part
of another State's territory."20
Australia does not deny that the seizure of a State's property in certain circumstances may be in
breach of international law, but to equate it, without qualification, with an illegal seizure of
territory is an attempt at colour, and does not reflect reality.
11. These instances demonstrate the lengths to which the applicant has to go to demonstrate
that it has alleged rights of which Australia is allegedly in breach. In fact, they demonstrate how
implausible the alleged rights are.
12. Now let me move to the particular rights mentioned by Timor-Leste yesterday and their
plausibility.
18CR 2014/1, p. 38, para. 22 (Wood).
19
2 December 2004, Ann., UN doc. A/RES/59/38.
2°CR 2014/1, p. 31, para. 34 (1) (Lauterpacht). -24-
13. Counsel for Timor-Leste summarized the alleged rights at issue in this case as "the
21
inviolability and immunity of its property, and in particular of i•s documents and data ... "
14. Even assuming that the material removed from 5 Brockman Street, Narrabundah does
belong toimor-Leste-a matter which is yet to be estabthe applicant must then
demonstrate that the alleged international law rightsy and immunity as they relate to
that property are plausible.move to the question of inviolability.
Inviolability
15. The absolute inviolability of aState and papers were stated by Sir Michael yesterday to
be an aspect sovereignty, the sovereign equality of States and nHowever,vention.
Timor-Leste does not provide any authority for this general principley of State
papers andropertyit only supports the principles by drawing upon analogies to documents in
22
the possession of a foreign diplomatie mission,or by stating that it is a "general
principle that underlies ... many rules in particular fields, such as State immunity and diplomatie
and consularmunities•
16. In reality, Timor-Leste has in fact donit has sought to create a general
principle the inviolability of state papers and property out of defined immunities that apply to
such property strictly defined circumstances. The assertion ofthat general principle is without a
legalasis- indeed, as noted by the Solicitor General, it renders otiose the particular principles
which do exist.
-!~~~~()_r~():'fer, n~tCf(?ill!fao!l-L:isete<-d:oe~!ic(mstncs---
------------w--cl'the-documentsand property in question cmild be part of the unlawful enterprise in the State
in which they are located, or be evidence of such an enterprise. In short, the right, so broadly stated
asit is, is implausible.
21
CR 2014/1, p. 33, para. 2 (Wood).
22
CR 2014/1, p. 28, para. 25 (Lauterpacht).
2CR 2014/1, p. 37, para. 19 (Wood). -25-
Immunity
18. I will now move to the question of immunity. Australia accepts that the property and
papers of a State could be immune from seizure in another State in defined circumstances, those
circumstances principally being defined as jurisdictional immunity and diplomatie and consular
immunity. However, counsel for Timor-Leste sought to create a larger immunity out of these
accepted and well-defined immunities or, instead, extend these immunities to circumstances, such
as those in this case, to which they were not intended to extend.
19. In relation to the jurisdictional immunities of States and their property, reliance was
placed on the provisions of the 2004 Convention. However, as this Court noted in the
24
Jurisdictional Immunities case, the 2004 Convention only has a very limited acceptance by States
and has not yet entered into force. At present, only 14 countries have become parties to the
Convention- weil short of the 30 ratifications required for entry into force. Neither Australia nor
Timor-Leste are parties to the 2004 Convention, though Timor-Leste has signed it. It would be
difficult to conclude, if it was so boldly asserted, that the 2004 Convention generally represents
customary international law.
20. Leaving the question of whether the provisions of that Convention represent customary
international law, leaving that aside, counsel for Timor-Leste stretched its provisions beyond
credulity. It is fundamental to jurisdictional immunity both under the 2004 Convention, customary
international law and indeed the practice of States that it is an immunity from the Courts of another
State. Indeed, Article 5 of the 2004 Convention provides ~and it appears before you now(tab 3 4~: ><
Article 5 -State immunity
"A State enjoys immunity, in respect of itself and its property, from the
jurisdiction of the courts of another State subject to the provisions of the present
Convention."
21. Counsel for Timor-Leste cited this very article in support of the proposition -"the basic
25
rule laid down in the 2004 Convention is that a State and its property enjoy immunity" - but
without mentioning the major qualification "from the jurisdiction of the Courts of another State".
2Jurisdictional Immunities of the State (Gev.aItaly: Greece intervening), JudgmI.C.J.Reports 2012,
p. 122,para53.
2CR 2014/1, p.38,para.23(Wood). -26-
The latter qualification being very inconvenient to the application of the principle of jurisdictional
immunity to the current circumstances.
22. Let us be clear, jurisdictional immunity is not, and never has been, a general immunity of
one State from the laws of another State if it is carrying out trit is aons in that other State -
prima facie immunity from jurisdictionthen subject to stated exceptions. As I mentioned
earlier, the reasons put forward by counsel on behalf of Timor-Leste yesterday in support that the
Attorney-General of Australia is a "court" within the meat1ing of the 2004 Convention and
customary international law onjurisdictional immunity is totally implausible.
23. There is nojudicial proceeding when the Attorney issues a warrant under the ASIO Act.
It is an executive act taken pursuant to Australian legislationecting Australia's
security. It is not the subject of jurisdictional immunity under international law. If there is no
jurisdictional immunity applied to these circumstances, one does not even get to the question of
whether there are exceptions.
24. The principlejurisdictional immunity is of course plausible as a right generally.
However, the real issue here is that the principle simply does not apply to the circumstances of the
Attorney-General issuing a warrant for removal of property under the ASIO Act. In short, it is an
implausible right in the sense that it is clear beyond doubt that it bas no application in this case. Or
put another way, if the right does not apply to these circumstances, the question of its plausibility is
not even reached.
25. Counsel for Timor-Leste also stated "the inviolability and immunity of State property
________ -__-___ _~~nd~ ~~~Ji-ll~m rY:>i____iernatië:>->.nr--ntioïls;_I _ri!ï!l~rt~~lat:_J:iera~,
diplomatie and consular law, the law of special missions, and the law of international
organizations •Australia of course accepts that these conventions apply according to their
terms. And this extends to the immunities set out in those conventions -those
conventions. However, what those conventions do not mandate is a form of general immunity and
inviolability applicable to the actions of States or to theirThey applyand papers.
2CR 201411,pp.par-3Woo4). -27-
immunities in defined circumstances and those circumstances do not extend to the documents
removed from the premises at 5 Brockman Street, Narrabundah.
26. Timor-Leste mentioned in support of such a general rule qualified statements made by
US State Department Legal Adviser Taft 27• Leaving aside the completely different circumstances
being considered by Mr. Taft- matters relating to embassy construction- when considering
whether documents given to a third party retain immunity, he stated that this was a "novel and
complex question"- and I suspect that is a euphemism for a conclusion that there was no
applicable prohibition. The quoted statement from Oppenheim yesterday that official papers in the
hands of non-diplomatie agents "are presumably entitled to immunity" is equivocal to say the
8
lease • The general conclusion of Timor-Leste that there is a fundamental principle that
29
inviolability applies to State documents generally, wherever they may be is one for which
Timor-Leste gives no judicial support and, given the import of the general application of such a
principle, it is implausible.
Legal professional privilege
27. Mr. President, Members of the Court, 1 now turn to legal professional privilege, and
Timor-Leste's assertion that a principle akin to such privilege constitutes a "general principle of
30
law" • The authorities cited by Sir Michael yesterday are in no way authority for the proposition
that there exists an international law principle of general application which protects absolutely the
confidentiality of communications between a State and its legal advisers 31• Even if one were to
accept that a privilege exists at international law, such a privilege inevitably would be qualified, as
it is in domestic jurisdictions.
27
CR 2014/1, pp. 39-40, para. 26 (Wood).
28
CR 2014/1, p. 40, para. 27 (Wood).
29CR 2014/1, p. 40, para. 29 (Wood).
3°CR 2014/1, pp. 40-1,43, paras. 30 and 37 (Wood).
31CR 2014/1, pp. 40-43 (Wood). -28-
28. Those qualifications include that the communication in question concerns the
commission of a crime or fraud, that it constitutes a threat to national security, or that recognition
32
of the principle would conflict with higher, more important public interests •
29. Sir Michael also referred you yesterday to a number of cases decided by international
arbitral tribunats. In response, I need only make two points. First: this case law does not provide
support for the proposition that a broad and unqualified principle of legal professional privilege
exists as a general principle of international law 33• Second: even where they recognize its
existence as a matter of international law, international tribunats themselves recognize exceptions
to the principle. As stated by the independent expert James Spigelman, appointed in the
NAFTA arbitration of St Marys VCNA LLC v. Government of Canada (tas 35):
"[privilege] does not extend to communications which undermine the integrity of, or
otherwise constitute an abuse of, the administration of justice. Documents that came
into existence for such an improper purpose are not entitled to attorney-client privilege
from the outset. This is a widely accepted proposition in the domestic law of many
jurisdictions." 34
30. Mr. President, Members of the Court, Australia's comprehensive survey of the
approaches taken under municipal law and international law to issues of legal professional
privilege- referred to previously by the Solicitor General highlights the implausible nature of
the expansive and unqualified rights of privilege which Timor-Leste submits extends to
communications between States and their legal advisers.
31. Mr. President, let me conclude on the question of the plausibility of these rights and that
conclusion is that the Court should find that the rights upon which Timor-Leste purports to rely in
_______________its_ApplicatiotLare.not_sufficiently_plausibletojustify_relief._________________________________ ______
32. Mr. President, Members of the Court, thank you for your attention. 1now ask you to cali
upon Mr. Burmester.
32See the Summary of Municipal Laws on Legal Professional Privilege/Confidentiality: Scope and Exceptions
~.
33Bank for International Settlements case (PCA), Procedural Order No. 6, 11 June 2002, p. 10; cited with
approvalin Vito G.Gallo v. Government of Canada (PCA-NAFTA), Procedural Order No. 3, 8 April 2009; Libananco
Holdings Co. Limitedv. Republic ofTurkey, ICS/D Case No. ARB/06/8, Decision on Preliminary Issues, 23 June 2008.
See CR 2014/1, pp. 40-43 (Wood).
34James Spigelman, "Report of Inadvertent Disclosure of Privileged Documents" in St lv/arys VCNA LLC v.
Government of Canada, St lvlarys VCNA LLC v. Government of Canada, 27 December 2012, 4, available at:
http://www.italaw.com/sites/default/files/case-documents/italaw1392.pdf. -29-
The PRESIDENT: Thank you, Mr. Campbell. Now I give the floor to Mr. Burmester. You
have the floor, Sir.
Mr. BURMESTER:
THE ESSENTIAL PRECONDITIONS FOR THE INDICATION OF PROVISIONAL
MEASURES ARE NOT MET (PART JI)
Introduction
1. Mr. President, Members of the Court, it is an honour to appear before you again on behalf
of Australia. In this presentation I intend to do two things. The first, building on the presentation
just beard from Mr. Campbell, is to outline why Timor-Leste is unable to satisfy the Court asto the
link between the alleged "rights" that form the subject of the proceedings and the provisional
measures being sought. Establishing such a link is essential to a grant of provisional measures.
2. The second matter is to outline Australia's grounds for refuting the assertions made by
Timor-Leste relating to the urgency of granting provisional measures and the irreparable prejudice
that it claims it will suffer. If either irreparable prejudice or urgency are lacking, the Court cannot
grant provisional measures. 1will show that both characteristics are lacking.
3. Furthermore, the Court must have regard to the prejudice that would be suffered to
Australia's sovereign rights to protect its national security and enforce its criminaljurisdiction in its
own territory ifthe provisional measures were granted. Despite Timor-Leste's attempts to frame
the dispute as relating solely to its claimed rights, the Court must balance those claims against the
significant restriction on Australia's ability to exercise its sovereign rights. The invocation of the
Blaskié case by Timor-Leste is not to the point. That case dealt with withholding evidence from
criminal proceedings on national security grounds. That is far removed from the present
35
situation • In fact the Tribunal in that case was very mindful of legitimate State concerns related to
national security, and the procedures for handling evidence recognized this36• A similar concern to
35Prosecutorv.Tihomir Blaskié,Judgement on the request of the Republic ofCroatiafor review of the decision of
the Trial Chamber Il of 18 July 1997, ICTY Appeals Chamber, 29 October 1997.
36Prosecutorv.Tihomir Blaskic,para67. -30-
protect the right and duty of a State to pursue the commission of a serious crime is also evident in
7
the Libananco Holdings case- a case referred to by Timor-Leste yesterdal •
Lack of a sufficient link between alleged rights whose protection is being sought and the
measures requested
4. Putting to one side the question of the plausibility (which Mr. Campbell has just dealt
with), Timor-Leste must also satisf)rthe Court that a "sufficient connection"38exists between the
provisional measures requested and those rights. To be sufficient, something must be adequate for
39
aparticular purpose • The purpose the Court is concerned with is preserving the factuaLsituation
necessary to the meaningful exercise of the disputed rights in order for the Court to render an
40
effectivejudgment •
5. Such a connection is manifestly lacking in Timor-Leste's request. Despite its assertion
that this necessary link is "self-evident" and that the claims in the Application and Request are
41
"closely related" , this has not in fact been demonstrated. There is a general disconnect between
the Application and the provisional measures they seek. The Application is focused on
Timor-Leste's claimed property and other rights in the materials that were removed. It is ali about
ownership of certain documents and their return. In contrast, the emphasis in the provisional
measures (a)- (d) is on use of the contents of certain documents and data, and alleged ongoing
prejudice that would result from Australia becoming privy to their contents.
6. To the extent that Timor-Leste seeks to link use with ownership, it must still demonstrate
a sufficient link between the measures sought and the legal interest at stake. The only legal interest
______ --=:__ be~o ow nershiQ whiCI1itldentifiesTn_ any detail is the right toQrevent ai!iriotential advall _iag~=
Australia may gain from access to the documents in relation to the arbitration and in relation to
Timor Sea resources. Such a link cannot be shown in light of the explicit undertaking that the
37
Libananco Holdings Co Ltd v. Republic ofTurkey, ICSID Case No. ARB/06/8, Decision on Preliminmy Issues,
23 June 2008, 37, para 79.
38
Application of the International Convention on the Elimination of al/ Forms of Racial Discrimination
(Georgiav.Russian Federation), Provisional Measures, Order of 15 October 2008, LC.J. Repopp. 391-392,
para. 126.
39
Shorter Oxford English DictionmVol. 2, Oxford University Press, Oxford, 2007, 6th ed., 3097.
4Shabtai Rosenne,The Law and Practice of the International Court, 1920-2005Volume IllProcedure,
Martinus NijhoffPublishers, Leiden, 2006, 1412.
4CR 2014/1, 28, para. 26 (Lauterpacht). - 31 -
material removed will not be made accessible to those connected with the arbitration orto anyone
42
other than intelligence and criminallaw enforcement personnel •
7. The lack of a sufficient link with the rights claimed is particularly apparent with regard to
requested provisional measure (e). There is a complete absence of any link between that measure
eo..r\--
and the rights which form the subject of the proceedings before the~ on the merits.
8. This measure about interception, in its terms applies to ali communications between
Timor-Leste and its legal advisers. Despite its broad wording it is directed principally at such
43
communications in relation to the conduct of the Arbitration • In contrast, the Application and the
remedies sought in it, relate solely to its claimed rights arising from the documents and data
removed.
9. The requested measure in relation to surveillance would not therefore preserve any right
alleged to exist in the Application. Rather, it would preclude conduct with no connection to the
Application, conduct which Timor-Leste alleges- without substantiation- will or may occur in
the future. None of the remedies sought by Timor-Leste in its Application and the alleged rights
contained therein, would be affected if the measure relating to surveillance is not granted.
1O. Even if a sufficient connection could otherwise be shown, an order relating to
surveillance would be extraordinary, far-reaching and unprecedented. It would be unsupported by
any firm basis in international law and would protect no plausible right. The ICSID decision in
44
Libananco Holdings , referred to by Sir Michael Wood, does not establish the contrary. In that
case, the apparently general order of the Tribunal prohibiting interception of communications as
between legal counsel and representatives of the claimant was qualified by the express recognition,
in clause 1.2 that Turkey could conduct investigations into suspected criminal activities. What was
prohibited was the transfer of any information so obtained to any person involved in the
42
Arbitration under the Timor Sea Treaty, Written Undertaking by Senator the Hon. George Brandis QC,
Attorney-General of the Commonwealth of Australia, 19 Decemb2013~; Timor-Leste v. Australia, Undertaking
by the Senator the Hon. George Brandis QC, Attorney-General of the Commonwealth of Australia, 21 January 2013
~.
43Request for the Indication ofProvisional Measures, para. 7.
44
Libananco Holdings Co Ltd v.Republic ofTurkey, ICSID Case No. ARB/06/B,Decision on Preliminmy Issues,
23 June 2008. -32-
45
arbitration • So the prohibition on interception was significantly qualified. In that case, in the
event, Turkey won the arbitration, in part because of evidence questioning the authenticity of the
key documents sought to be relied upon by the claimant to establish the jurisdiction of the
46
Tribunal •
Il. In our submission, the Court should decline to find a sufficient link between the
provisional measures sought and the rights which form the subject of the Application.
1. Irreparable prejudice; urgency
12. Mr. President, Members of the Court, I turn now to the requirement that the measures
ordered must be necessary to preserve the respective rights of either Party, in the sense that there
would otherwise be irreparable prejudice and urgency 47•
13. The first point in relation to this requirement is that the Court, in its examination of
irreparable prejudice, must consider the rights and interests of both Parties. This is so, even though
a request has been made by one party only. Indeed, the rights of Australia, as Respondent, are not
48
dependent on how Timor-Leste has formulated its Request • Those rights possessed by Australia
must also be considered by the Court.
14. The Court's power allows it to indicate measures that restrict sovereign freedom at a time
when the Court has not yet decided either that it has jurisdiction, or that the claim is
49 50
we11-founded • The Court must therefore weigh carefully the conflicting alleged rights , and
51
ensure that neither of the Parties is put at a serious disadvantage • For these reasons, the Court
45
-------- LibananccrHolâings·co-uâ·v~RtWüôlic-ofTzwkey;JCSID-cas"lrNo-:-ARB/0618,Deeisîbn-orrPrelilnînary-lssllès;-
23 June 200842, order 1.2.
4Libananco Holdings Co Ltd v. Republic ofTurkey, ICS!D Case No. ARB/06/8, Award, 2 September173,1,
para. 534.
4Certain Activities carried out by Nicaragua in the Border Area (Costa Rv.Nicaragua), Provisional
Measures, Order of8 March 2011, I.C.J. Reports (!),declaration of Judge Greenwood, p. 48, para. 7.
4Pzdp-Mllls-on the.River Uruguay (AI·gentinu,:Z/guay),7i;ov frsi·ooJ2a3JanùaJye0â7szlres~
IC.J. Reports 200pp. 3, 10-11, para. 28-9.
49
Robert Kolb,The International Court ofJusHart Publishing, Great Britain, 2013, 630.
50
Pzdp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, IC.J.
Reports 2006, 113separate opinion of Judge Abraham, p. 139; see aPassage through the Great Belt (Finlv.d
Denmark), Provisional Measures, Order of29 July 1991, I.C.J. Reportseparate opinion of Judge Shahabuddeen,
p. 29; Bin Cheng,General Princip/es of Law as applied by International Courts and TriGrotius Publications
Ltd., 1987, 273 citCie d'Électricitéde Sofia et de Bu(1923) 2TA.M 924, 926-7.
5Karin Oellers-Frahm, "Article 41" in Zimmerman, Tomuschat and Oellers-Frahm (edThe Statute of the
Internationalourt ofJustice: A Commentwy,1035. - 33 -
should approach the exercise of its power to impose provisional measures judiciously, with a view
to finding the appropriate balance between the rights of each Party.
15. Australia has sovereign authority over the maintenance of the security of Australia and
the exercise of legitimate law enforcement functions in its own territory. The provisional measures
requested by Timor-Leste, if granted, would severely prejudice those central rights. Given this, a
high bar needs to be met by Timor-Leste in seeking to preclude Australia's ability to exercise its
rights.
16. This is particularly so where the materials from which Timor-Leste's claimed rights are
said to arise were ali brought into being or created within Australia. Australian-based lawyers may
and do advise foreign Governments, but in doing so they remain subject to Australian law,
including the law of legal professional privilege which strikes a balance between the needs for
confidentiality and other public interests. A Government which cornes to Australia and seeks legal
advice there cannot and does not at the same time exempt itself or its advisers from the application
of relevant Australian civil and criminal law. 5 Brockman Street, Narrabundah did not become a
foreign enclave because Mr. Collaery acted as adviser to Timor-Leste. Timor-Leste has done
nothing to rebut the presumption that Australia has a right to exercise prescriptive and enforcement
jurisdiction within its own territory.
17. If the requested provisional measures were granted, Australia would be precluded for a
significant period of time from exercising its rights in relation to the security of intelligence
information and the investigation of crime, until the Court is available to hear Timor-Leste's
principal Application. The requested measures would effectively preclude the Australian Security
Intelligence Organisation from undertaking its duties for the course of the present proceedings in
relation to the documents removed.
18. The Court should place significant weight on these matters and exercise extreme caution
before indicating any measures that would affect adversely the ability of the State to take action in
these areas. This is particularly so where Australia has given significant undertakings that restrict
access to the documents in a manner which does least harm to the ability to protect Australia's
national interest and at the same time directly addresses the identified concerns of Timor-Leste as -34-
to access to the material by persons who may be involved in dealings with Timor-Leste in relation
to the Timor Sea treaties or future negotiations.
19. This brings me to the two aspects of the third requirement, namely irreparable prejudice
and urgency.
20. Timor-Leste has not satisfied either.
(a) No irreparable prejudice
21. The test for irreparable prejudice is not met in this case, as the circumstances of most
concern to Timor-Leste, when carefully considered, will simply not occur. Timor-Leste's Request
for provisional measures centres on its concerns relating to Australia inspecting the removed
52
materials and informing itself asto their contents .
22. From what we can discern, this concern is based on two types of prejudice: that related
to the Arbitration and that related more broadly to the Timor Sea and its resources.
23. In relation to the first category, the Attorney-General has provided a number of
undertakings to the Tribunal in relation to the material. The Attorney-General has now provided
even wider undertakings to this Court. Most importantly, the content of the material removed by
ASIO is not under any circumstances to be communicated to those conducting the Arbitration on
behalf of Australia and it will not be used by any organ or agent of the Australian Government for
any purpose unrelated to national security or law enforcement purposes until the determination of
those proceedings. The Court has accepted that appropriate undertakings can render a grant of
--53-- ----
urgency . Australia's undertakings to the Tribunal mean that there will be no irreparable harm in
relation to Timor-Leste's rights relating to the Arbitration, because the principal concern to
Timor-Leste cannot arise in fact. The suggestion made yesterday that provisional measures are
necessary becauseundertakings-are not--bindingshould-be dismissed-for-thefurphy it is. Bnilateral
undertakings by States can give rise to legal consequences, as the Nuclear Tests case
52Request for the indication of provisional measures, para. 6.
53Certain Activities carried out by Nicaragua in the Border Area, Order of8 March 2011, I.C.J. Reports(!),1
p. 24, para. 74; Questions relating to the Obligation to Prosecute or Extradite (Belgiumv. Senegal), Provisional
Measures, Order of 28 May 2009, I.C.J. Reports 2009,p. 155, para. 69;Passage through the Great Belt (Fin/and v.
Denmark), Provisional Measures, Order of29 July 1991, I.C.J. Reports 199pp. 17-18, para. 24 and para. 27. -35-
54
demonstrates , and the most recent undertaking given by Australia to this Court - and that
previously given to the Tribunal- are of that nature.
24. In addition, Timor-Leste's ability to prepare for the Arbitration is not materially impaired
by the removal of documents, or failure to grant provisional measures, despite its claims to the
55
contrary • Timor-Leste has stated in the media that it has copies of the documents that were
removed and that its ability to conduct the Arbitration will not be impaired. Mr. Bernard Collaery
was quoted in the media as saying the removal of materials from his home will do "very little" to
56
hinder Timor-Leste's case in the Arbitration- and that can be found at tab 36 in the folder • At
the First Procedural Hearing convened by the Tribunal, Timor-Leste agreed that their preparation
for the Arbitration would not be fatally undermined by the absence of the documents removed.
Professor Lowe stated in that context that the removal of documents and data "is not going to
57
cripple our case" l(Tab 4)
25. Instead it was argued by Timor-Leste that an appropriate remedy for any inconvenience
to the arbitral case was an extra two weeks to prepare its Statement of Claim. Australia agreed to
that time-limit and that is incorporated in the Procedural Order. There was no suggestion then of
any irreparable prejudice and there can be no suggestion now, in that respect.
26. In any case, the provisional measures requested would not assist Timor-Leste in this
regard, as the documents would be held by the Court and would not be made available to Timor-
Leste.
27. Asto the second claim of prejudice in relation to matters relating to the Timor Sea more
generally, Timor-Leste has sought to identify this prejudice as relating to Timor-Leste's legal
strate gy "including the Arbitration and any future maritime negotiations" 58 (emphasis added).
Until the Arbitration concludes, it is mere speculation to identify any potential prejudice to broader
5Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 267, para. 43.
5Request for the indication of provisional measures, para. 9.
5Australian Broadcasting Corporation, "East Timor spying scandai: Tony Abbott Defends ASIO raids on lawyer
Bernard Collaery's offices", 4 Dec. 2013, available at: <http://www.abc.net.au/news/2013-12-04/asio-arrests-key
witness-in-east-timor-spying-scandal/5132954>.
5Transcript, First Procedural Meeting in the Matter of the Timor Sea Arbitration pursuant to the Timor Sea
Treaty between the Government of East Timor and the Government of Australia of 20 May 2002 between the Democratie
Republic of Timor-Leste and the Commonwealth of Australia, 5 Dec. 2013,40, !ines 3-4 (V. Lowe).
58
CR 2014/1, p. 43, para. 41 (Wood). -36-
concerns about the Timor Sea and its resources. At present the régimeof exploitation is governed
59 60 61
by the 2002 , 2003 and 2006 Treaties. There are currently no boundary negotiations, nor
proposais for them. For a provisional measure, one must put forward material that is not just
remote, speculative or contingent argument about future possibilities. And in any event, the most
recent undertaking by the Attorney-General ensures there can be no prejudice inthis second area.
(b) No urgency
28. If there is no irreparable prejudice, afortiori there can be no urgency that requires the
grant of provisional measures. An assessment of urgency by this Court is contextual, in the sense
that the Court must take into account the general relationship between the parties, including the
pursuit or otherwise of other parallel procedures for resolving the dispute 62•
29. Timor-Leste has demonstrated a Jack of urgency by its behaviour in relation to the
materials in question and its failure to avail itself of other prompt and effective avenues in relation
to the materials. Timor-Leste and its legal advisers have had the ability to bring a claim under
Australian domestic law for legal privilege, as outlined by the Solicitor-General. Timor-Leste also
has the ability to seek Interim Protection from the Tribunal since 5 December 2013. This failure to
seek recovery through the other viable avenues demonstrates there is no urgency requiring the
giving of relief in this Court.
30. Timor-Leste has manifestly failed to demonstrate either irreparable prejudice or urgency,
and has failed satisfy the necessary criteria for the granting of provisional measures.
.......31.1 would now ~skthaLyou give the floor_to Professer Crawford. Thank you_foryour
59
Timor Sea Treaty bellveen the Government of East Timor and the Government of Australia, Dili, 20 May 2002,
2258 UNTS 3 (entered into force 2 A2003)~.
60
Agreement bellveen the Government of Australia and the Government of the Democratie Republic of Timor
Leste relating to theitisation of the Sunrise and Troubadour Fields, Dili, 6 March 2003, 2483 UNTS 317 (entered into
force23 Feb. 2007).
61
Treaty on Certain Maritime Arrangements in the Timor Sea, Sydney, 12 Jan. 2006, 2483 UNTS 359 (entered
into force3 Feb.2007~.
62
Robert Kolb, The International Court of Justice, Hart Publishing, Great Britain, 2013, 631. -37-
The PRESIDENT: Thank you, Mr. Burmester. 1give the floor to Professor Crawford, who
is the last one to plead this moming for Australia. You have the floor, Sir.
Mr. CRAWFORD:
THE REQUEST SHOULD NOT BE ENTERTAINED GIVEN THE PENDENCY
OF THE CASE BEFORE THE TRIBUNAL
Introduction
1. Thank you, Mr. President. Mr. President, Members of the Court, even if Timor-Leste
could establish the other conditions for the indication of provisional measures- which it cannot
do- there would be a compelling reason to reject its Request. The reason is this. The Court
cannot, or in any event should not, take on the responsibility of ordering provisional measures in
circumstances where another forum - the Arbitral Tribunal constituted under the Timor Sea
Treaty- has already convened, is already exercising its powers in relation to the subject matter of
the present Request, and is exercising jurisdiction on a timetable settled with the parties which
should lead to a decision on ali pending questions by the end of the year. This means that, even if
you have jurisdiction to do so, it is not necessary in the circumstances for this Court to indicate the
provisional measures requested by Timor-Leste, or indeed any provisional measures.
2.1will begin by establishing that the present Request is, either in whole or very substantial
part, within the competence of the Tribunal to grant or to deny, and more generally that the
Tribunal is actively dealing with the issues of due process arising. ln that context 1will deal with
63
Timor-Leste's assertion yesterday that the removed materials "go weil beyond the Arbitration" . I
will outline the position the Court should take consistently with Articles 33 and 95 of the Charter,
in relation to matters pending before another international tribunal. Finally 1will show the impact
ofthese points in terms of the requirements of irreparable prejudice and urgency of the exercise of
your provisional measuresjurisdiction.
63
CR 2014/1, p. 20, para. 10 (Lauterpacht). -38-
A. Availability of interim measures before the Tribunal
3. Mr. President, Members of the Court, international courts and tribunats have power to
regulate matters between the parties that might affect the integrity of their process in pending
64
proceedings • But in any case, the Tribunal hasan express power to arder interim measures if it
sees it necessary. Article 21 (1) of the Rules of Procedure of the Tribunal is taken from the PCA
65
Optional Rules . lt provides: "Unless the parties otherwise agree, the arbitral tribunal may, at the
request of either party, take any interim measures it deems necessary to preserve the respective
rights of either party." 66 They would include due process rights. This provision empowers the
Tribunal to prescribe provisional measures such as those requested by Timor-Leste, provided
Timor-Leste can show that the various requirements for such measures are fulfilled. Timor-Leste
could have requested that it exercise that power. Instead it chose to initiate these parallel
proceedings two weeks later.
4. 1 should mention certain other features of the arbitral proceedings to put this tactic of
parallellitigation into context.
5. First, the Timor Sea Treaty of 2002, under which the arbitral proceedings are brought,
stipulates that proceedings must be concluded within six months of the convening of the
67
Tribunal . The Tribunal convened on 5 December last year. The reason for the time-limit is that
the Treaty provides a framework for exploitation and exploration of hydrocarbons in the interests
of both States; uncertainty in that regard is costly and it was evidently intended that any dispute
under the Treaty should be rapidly settled and not allowed to proliferate. But the Tribunal
..~===:===~){;pr~~~~~:i!~:<:l2.11<::~r:n·at-thetime-limit::Qf~i~l11()t1tl1_s::!11·View-of:it~:()~Jigf!!!()11:!():~11~l.ll'~=<!ll~:flr()c;~s_~:::::
6s--·-·-·· -·~·····~~--~-·~---···~~-- ·
to bath Parties . Australia, in response to that expression of concern, showed flexibility, provided
only that the case was beard and resolved promptly. The result was an agreed timetable with a
6Legality of the Use of Force (Serbia and Montenegv.Belgium), Preliminary Objections, l.C.J Reports 2004,
pp. 338-339,.separate opinion of JudgeHiggins ..-- ............ .
6PCA Optional Rules for Arbitrating Disputes between Two States, 20 October 1Art.26 (1).
6Procedural Order No. 1 in the Matter of an Arbitration pursuant to the Timor Sea Treaty between the
Govemment of East Timor and the Government of Australia of 20 May 2002 between the Democratie Republic of
Timor-Leste and the Commonwealth of Australia, 6 Dec. 2013 (Rules of ProceduArt.21 (1))~.
67
Timor Sea Treaty between the Government of East Timor and the Government of Australia, Dili, 20 May 2002,
(entered into force 2 Apr. 2003); ATS 13,2258 UNTS3: ("Timor Sea Treaty") Ann. B, A(i)~.
68
Transcript, First Procedural Meeting in the Matter of the Timor Sea Arbitration pursuant to the Timor Sea
Treaty between the Government of East Timor and the Government of Australia of20 May 2002 between the Democratie
Republic ofTimor-Leste and the Commonwealth of Australia5 Dec.2013~: p. 47, tines 12-13, Chairman.. -39-
hearing finishing on 2 October 2014. The Tribunal has not given a fixed date for its award but it
9
has undertaken to produce the award expeditiousli .
6. Secondly, the Tribunal was made fully aware of the events of 3 December 2013, and it
received a factual description ofthose events by Australia 70. In return there was no suggestion that
those events created any irreparable prejudice in terms of the presentation of Timor-Leste's
Memorial.
7. But concern was expressed on one point. At Timor-Leste's request the Tribunal called on
·Australia to address the potential conflict arising from the fact that the Attorney-General is the
Minister for both the Australian Security Intelligence Organisation and responsible for Australia's
71
legal team in this Arbitration . By a letter from its Agent dated 19 December 2013, Australia
provided a written undertaking by the Attorney-General to address that potential conflict 72 and that
undertaking has been confirmed and extended today.
8. Thirdly, there is the important issue of confidentiality. Timor-Leste asked the Tribunal to
allow the who le Arbitration, including the written and oral procedure, to be conducted in public-
with only limited safeguards for the identity of witnesses. It wanted the process to be subject to
73
unrestricted comment by the parties in the media . Australia objected and the Tribunal agreed
with Australia's position. The proceedings, oral and written, are to be confidential, although the
parties can issue brief factual statements at relevant intervals, for example, on the filing of
74
pleadings . The Award itself, subject to any necessary redactions, will be public. Given these
confidentiality protections instituted by the Tribunal for good cause, it is a fair inference that one
reason for these proceedings is to skirt around the confidentiality provisions and maximize the
opportunity for publicity and comment prejudicial to Australia.
69
Transcript: ~p. 47, tines9-18,Chairman.
7Transcript:lfflb-p\31, tines3-17,J Reid.
7Transcrip pp.50,tines9-24, (Lowe), 72, tine8-9, (Chairman).
7Arbitration under the Timor Sea Treaty, Written Undertaking by Senator the Hon. George Brandis Q.C.,
Attor:ney-General ofthe Commonwealth of Austratia, dated19 Dec.2013~.
7Transcript,ttrb-pp\.7,!ines5-17 (da Fonseca),74, tine8-14, (Lowe).
74
Procedural OrderNo. 1,~ Art. 26; Transcript, ta4,pp.83, tines14-21,(Lowe), 84, tines8-10, (Reid). -40-
9. Now, it is true that Australia contests the jurisdiction of the Tribunal, in particular on the
75
ground that the dispute concerns the CMATS and bence falls within Article 11 of that Treaty
rather than the Timor Sea Treaty, of 2002, Article 23. But that question is evidently a matter for
the Tribunal. Whether the Tribunal would have the jurisdiction to prescribe interim measures, such
as those requested by Timor-Leste, is a different question. It is a question whether the Tribunal
has, not jurisdictioperse, but prima facie jurisdiction sufficient to found an arder for provisional
measures of protection under Article 21 (1) of its Rules of Procedure. As I have shawn, Australia
has been flexible and reasonable on procedural issues and we accept the Tribunal's authority to
preserve due process pending its Award.
10. For these reasons, Australia's jurisdictional objection did not require Timor-Leste to
come to this Court rather than before the forum already constituted to decide the broader dispute.
B. Timor-Leste's argument that the removed material goes beyond the scope of the
Tribunal's authority
11. Mr. President, Members of the Court, Timor-Leste argued yesterday that the removed
76
materials- and 1quote Sir Elihu- "go weil beyond the arbitration" ; the inference is that the
Tribunallacks jurisdiction to require their returnto make other appropriate orders with respect to
them. That is not how it has been expressed by Timor-Leste to date.
12. The Application before you refers specifically to "documents prepared solely or
predominantly in relation to a legal dispute" currently before the Tribunal, although it also refers
without any particularization to "other documents and data in which Timor-Leste has a sovereign
-·---··-~---··-··-····-····-~~·-·-~.··~·-···~·~·~·
--~-- ---·-~Ci=n=te=r .Qcyl!ernationallQarw:~Q'tected
13. The Request is even clearer. Timor-Leste describes the documents and data that
constitute the subject-matter of the Request- and the subject-matter of the principal
Application- as [screen on; tab 37]: "containing correspondence between the Government of
Timor-Leste and its Legal [advisers], among them documents relating to the conduct of the pending
75Treaty between Australia and the Democratie Republic of Timor-Leste on Certain Maritime Arrangements in
the Timor Sea, Sydn12,Januar2006, [2007ATS 12,2483UNTS 359(entered into f23cFebruar2007)~.
76
CR 2014/1p.20,para.10(Lauterpacht).
77
Application, para. 5. -41 -
Arbitration under the Timor Sea Treaty between Timor-Leste and Australia" 78• It goes on to assert
that it is an object of the Request [next slide; tab 38]: "to end the unlawful impediment to the
conduct by Timor-Leste of its affairs caused by the seizure of the documents and data in particular
(but not exclusively) in relation to the conduct of the pending Arbitration under the Timor Sea
Treaty between Timor-Leste and Australia" 79 [screen off].
14. Even if this is not the exclusive object of the Application or the Request, it is plainly its
primary object. In any case, it is enough that it falls within the scope of the matter that is before the
Tribunal. In fact, Timor-Leste first asked Australia to return the documents in question at the
80
preliminary hearing before the Tribunal on 5 December 2013 .
15. Moreover, in its response of 23 December 2013 to the written undertaking given by the
Attorney-General, Timor-Leste stated 81:
"Timor-Leste considers that the position that Australia takes or should take
(whether in the course of the Arbitration proceedings themselves, or otherwise) in
relation to (i) the legal instruments that are in issue in the Arbitration under the Timor
Sea Treaty, and (ii) the exploitation of the resources of the Timor Sea, and
(iii) Australia's relationship with Timor-Leste more generally, are al! matters that are
related to the Arbitration."
That is Timor-Leste- "are ali matters that are related to the Arbitration"- a comprehensive
formula. This implies that, in Timor-Leste's view, any ofthe.removed material that relates to those
matters necessarily relates to the Arbitration.
16. Since the material is currently under embargo, it is difficult to be more precise. The
property seizure record does not clearly indicate that any of the removed material is not related to
82
the Arbitration . At the preliminary hearing before the Tribunal, Professer Lowe said "our papers
relating to this case have been seized by the Respondent and we do not have them" 83. At the same
hearing, he stated that the list of documents provided by Mr. Collaery to the Timor-Leste
78
Request for the Indication ofProvisional Measures, para. 3.
7Request for the Indication ofProvisional Measures, para. 5; emphasis added.
8Transcript, bb-,;ftp36, !ines8-17, 89, !ines21-23 (Lowe).
8Letter from the Agent of Timor-Leste to the Agent of Australia,23 December 2013; WOA, Ann. 15,para.7;
emphasis added.
8ASIO Property Seizure Record, 3 December 2013; WOA, Ann. 11.
83
Transcript,tttè-4p.29, !ines11-13 (Lowe); emphasis added. -42-
84
Government made apparent the "materiality of these documents" to Timor-Leste's preparation
for the Arbitration85. And yesterday, Sir Michael Wood remarked that "[s]o far as Timor-Leste can
tell... the probability is that virtually ali of the seized documents relate to Timor-Leste's legal
strategy, including for the Arbitration and for any future maritime negotiations" 86. Itwill be
recalled that the question before the Tribunal relates to the moratorium in respect of those
negotiations.
17. Mr. President, Members of the Court, what it comes down to is this. The Tribunal
clearly has the power to order interim measures with respect to any of the removed ma~er ihatl
relates to the Arbitration. Since there is no positive evidence that the removed material includes
material not related to the Arbitration- other than assertions made from the Bar table
yesterday- and without the material being inspected by anyone, it would not be practicable for
the Tribunal to make an order limited only to the material related to the arbitration. The Tribunal's
jurisdiction must necessarily extend to an order that potentially affects material whether or not
related to the Arbitration, even if in the event it would not otherwise havejurisdiction with respect
to such material.
18. Given the lack of particularization of these documents and data and the surrounding
circumstances, the Court should approach the matter on the basis that the documents removed refer
predominantly to the legal dispute before the Tribunal. But for that dispute and those proceedings,
we would not be here.
19. Timor-Leste is evidently and belatedly aware of this. In a letter to the Permanent Court
proceedings against Australia in the International Court of Justice ... as incidental to the
87
Arbitration under the Timor Sea Treaty" . In fact, neither Australia nor the PCA had
characterized the proceedings as "incidental". But that characterization is, nonetheless, correct.
8Letter from B. Collaery to AmbassJ.da Fonseca,5December 2013~.
8Transcrip pp.42,!ines24-25, 43!ine1-3 (Lowe).
86
CR 2014/1,p.43,para.41 (Wood).
87
Letter from the Co-Agent of Timor-Leste to the Permanent Court of Ar30Dec.i2013; WOA, Ann. 48. -43-
The Application and especially the Request- which is what you are concerned with here- are
incidental to a dispute which is already before anotherjudicial body.
C. The position of this Court in relation to other international tribunats
20. Mr. President, Members of the Court, that brings me to my third major point, which is
the position of this Court in relation to other international tribunats. Here I can be mercifully brief,
since the position is clear and well-defined.
21. Your Court is of course the principaljudicial organ of the United Nations. But as far as
concerns inter-State disputes outside the work of the United Nations and that includes the
present dispute your Court is a court of attributed powers whose jurisdiction depends on
consent. Moreover you have no inherent priority- I say this with great respect over other
forums specially consented to by States and you have no appellate or review authority, as such,
over other constituted tribunats, unless such priority or authority have been expressly conferred.
Ali that is clear from Article 33 of the Charter, which expresses the foundational rule of inter-State
judicial jurisdiction, the requirement of consent, and the related principle of free choice of means.
22. That position is even clearer if possible in cases such as the present where your
jurisdiction is subject to the qualification contained in paragraph (a) of Australia's Optional Clause
declaration. Which excludes [screen on; tab 39]: "Any dispute in regard to which the parties
88
thereto have agreed or shall agree to have recourse to sorne other method of peaceful settlement."
Here the parties have agreed in Article 23 of the Timor Sea Treaty to resolve disputes under that
Treaty by a special régimeof arbitration and under Article Il of CMATS to do so by negotiation.
Furthermore the question whether Article 23 Timor Sea Treaty or Article 11 of CMATS is the
applicable provision is one of which the Tribunal is already seised. A statement of Australia's
objection was provided to the Tribunal prior to the 5 December hearing 89,and that question is
already factored in to the consolidated hearing schedule for the Tribunal's decision. ls this Court
going to decide that issue for the Tribunal and, if so, when? Australia has consented to disputes
88
Declaration of Australia dated 22 March 2002 signed by the Hon. A.J.G. Downer, Minister for Foreign Affairs
~·
8Australia's Statement of Jurisdictional Objections in the Matter of an Arbitration pursuant to the Timor Sea
Treaty between the Government of East Timor and the Government of Australia of 20 May 2002 between the Democratie
Republic of Timor-Leste and the Commonwealth of Australia, 28 November 2013 [WOA, Ann. 47]. -44-
under the Timor Sea Treaty being decided by arbitration on a tight schedule. Having regard to
paragraph (a) of the Optional Clause declaration Australia has not consented to the indefinite
deferrai of issues in proceedings before this Court. By the time this Court addresses the
Application and the issues it raises, the underlying dispute wilÏ alreadyhave been addressed and
decided, with resjudicata effect, by the Tribunal. [Screen off.]
23. And no doubt our opponents will refer to the principle of parallelism of jurisdictional
instruments and rely on such decisions as Nicaragua v. Colombia (Preliminary Objections) in
90
support • But that was a case of parallel acceptances of general jurisdiction under the Optional
Clause and a general regional pact for the settlement of disputes, the Pact of Bogotâ 91• lt was not a
case of a clausula specialia governing a particular situation, as Article 23 ofthe Timor Sea Treaty.
Also, there was no equivalent in Colombia's Optional Clause declaration to paragraph (a) of
Australia's declaration 92• Moreover your Court was careful in that case to give full effect to the
qualification in Article VI of the Pact of Bogotâ, which was the material difference between the
two parallel instruments. You should, with ali respect, likewise recognize and give full effect to
the special régimeof arbitration under Article 23 of the Timor Sea Treaty and to the decisions and
to the competence of the Tribunalunder that Treaty.
24. So even if your Court prima facie retains concurrent jurisdiction, notwithstanding the
agreement of the parties to specifie modalities of dispute settlement under the bilateral Treaties
of2002 and 2006, we say with respect thatjurisdiction should not be exercised at that stage, having
regard to the pending proceedings elsewhere. A rigid adherence to the parallelism of jurisdictions
claimants. Is Timor-Leste to be allowed in effect to appeal the Tribunal's adverse decision on
confidentiality? Is it to be allowed to drag out the proceedings for years notwithstanding the
express provision for prompt resolution of disputes under the 2002 Treaty? If the Optional Clause
is to be converted into a supervisory vehicle for arbitrations, then too bad for the Optional Clause!
90Territorial and Maritime Dispute (Nicaraguv. Colombia), Preliminary Objections, Judgment,I.C.JReports
2007 (!!),pp. 872-873, paras. 132-136.
91American Treaty on Pacifie Settlement ("Pact ofBogotâ"), 30 April 1948, OAS, Treaty Series, .7 and 61
(entered into force 6 May 1949).
92
Declaration ofColombia dated 30 October 1937. Colombia notified the Secretary-General of the termination of
this declaration on 5 December 2001. -45-
Indeed Sir Elihu suggested that Australia "apply to the arbitral tribunal for an interim measure
restraining Timor-Leste from pursuing the present request to the International Court in so far as
Australia may claim that it bears on matters subject to the jurisdiction ofth[is] arbitral tribunal" 93•
Of course- as Timor-Leste itself accepts- the present Request does bear on matters subject to
the jurisdiction of the Tribunal. Yet this is just the sort of jurisdictional jockeying which would
discredit the international dispute settlement system and which this Court would not want to see
other tribunals engage in, orto engage in itself.
25. An apt illustration of the appropriate adjustment of relations between different
international courts and tribunals is provided by the MOX Plant decision. There, a tribunal was
94
constituted under Annex VII of UNCLOS • Its jurisdiction depended on a question of European
law on which the European Court of Justice would shortly be asked to rule and which, as between
the parties to that case, it had exclusive power to decide 9• That was not a case of indirect or
96
incidental overlap, such as Iron Rhine , and unlike Iron Rhine, the MOX Plant Tribunal's
97
jurisdiction was disputed by one of the parties on grounds of European law • The MOX Plant
Tribunal stayed its own proceedings on the ground that a procedure [screen on; tab 40] "a
procedure that might result in two conflicting decisions on the same issue would not be helpful to
the resolution of the dispute between the Parties" 98- the full passage is on the screen [screen off].
26. I turn from these general remarks on the relation between your Court and pending cases
in other international tribunals to the specifie question of provisional measures. In the unfortunate
circumstance where there are multiple procedures, an order by one judicial institution that affects
the conduct of parallel proceedings before another judicial institution could result in conflict and
confusion. The two judicial bodies would risk passing each other Iikeghosts in the corridors of the
Peace Palace- corridors which, it might be thought, are already sufficiently haunted.
93
CR 2014/1, p. 32, para. 34 (5) (Lauterpacht).
94United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1836 UNTS42 (entered
into force 28 July 1994)UNCLOS").
95MOX Plant, 318-320.
96/n the Arbitration Regarding the Iron Rhine ("lzeren Rijn") Railway between the Kingdom of Belgium and the
Kingdom of the Netherlands, PCA, Award of the Tribunal, 24 May 2005.
97MOX Plant, 317-318.
98MOX Plant, 318-320~. -46-
27. There is one, and as far as I can discover, only one situation where an international
judicial body exercises jurisdiction over provisional measures in connection with a dispute pending
before another such body. This is the provision in Article 290, paragraph 5, of UNCLOS that
[screen on; tab 41] "[p]ending the constitution of an arbitral tribunal", ITLOS "may prescribe,
modify or revoke provisional measures ... if it considers that prima facie the tribunal which is to
99
be constituted would have jurisdiction and that the urgency of the situation so requires" • But
there are two fundamental points to be made about Article 290, paragraph 5.
28. First, [next slide] it gives power only "[p]ending the constitution of [the] arbitral tribunal
to which a dispute is [to be] submitted", in other words, ITLOS is empowered to prescribe
provisional measures only in circumstances where the Annex VII Tribunal is not yet constituted.
29. Secondly, [next slide] once constituted, the Annex VII Tribunal has power to vary those
provisional measures, which would not be the case here.
30. There is no equivalent to Article 290, paragraph 5, and a real possibility of conflict.
Regardless of the content of the removed material, the purpose for which Australia has removed it
and the circumstances of its removal are likely to come before the Tribunal- and indeed have
already come up in the preliminary hearing. No matter how broad the removed material is in
scope, there remains a real risk of parallel decisions by the Court and the Tribunal bearing on
Australia's conduct with respect to that material.
31. Moreover the Tribunal is plainly a more appropriate forum for dealing with the
subject-matter of the Request. Due to its compressed timetable, an agreed timetable, the Tribunal
the merits, or even itsjurisdiction.
32. For the purposes of this Request, there is another reason why the Tribunal is the more
appropriate forum. A court or tribunal called on to grant provisional measures needs to know
something about the underlying dispute. It might even need to form a preliminary view of those
facts. Here- to use Timor-Leste's term- the dispute before you is "incidental" to a broader
dispute which is deliberately being held before another judicial body chosen by Timor-Leste. The
99
UNCLOS, Art. 290 (l). -47-
Tribunal will have before it facts that are not directly in issue before the Court but that would
nonetheless be relevant to a decision to order provisional measures such as those requested.
33. And this is necessarily the case. The Court necessarily cannot be as cognizant of the
\)
conduct of the pending arbitration as the Arbitral Tribunal that is constituted specifically to hear it.
34. For example, the rights sought to be protected by provisional measures must be
100
plausible • This includes the alleged rights in documents and data over which Timor-Leste
asserts pnvt ege1 101. But the Solicitor-General has already established, Mr. Campbell has
confirmed, that there is no international consensus on the existence of absolute professional
privilege. States provide exceptions, for example in matters such as crime, fraud, con:flictwith a
superior value, abuse ofrights 102,and so on. Such exceptions depend on the underlying facts ofthe
dispute. The Tribunal is in a much stronger position to determine whether the rights sought to be
protected are plausible.
D. Consequences for the requirements ofirreparable prejudice and urgency
35. Mr. President, Members of the Court, it follows inevitably from what 1 have said that
before your Court the twin requirements of irreparable prejudice and urgency are not met.
36. There is no urgency. And certainly the matter is not so urgent that it is not possible for
Timor-Leste to apply to the Tribunal for provisional measures and await the outcome. If it had
applied on 5 December, it would have had its answer by now. If it had applied on 17 December-
instead of filing the present case- it would have had its answer by now. This is the reverse of
urgency, and it is Timor-Leste that has put itself into the position by electing to initiate parallel
proceedings with further delay, when it had a remedy direct to hand.
10Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional /vleasures,
l.C.J. Reports 2009,p. 151. See also Certain Activities carried out by Nicaraguain the Border Area (Costa Rica v.
Nicaragua), Provisional /vleasures, !C.J. Reports 2009, p.18; Request for Interpretation of the Judgment of
15June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand),
Order of 18July 2011, l.C.J. Reports 2011 (11p. 545, para. 33.
101
Request for the indication ofprovisional measures, para. 6.
102
Australia's Written Observations, footnote 76; Summary of Municipal Laws on Legal Professional
Privilege/Confidentiality: Scope and Exceptions [WOA, Ann. 32]. -48-
E. Conclusions
37. Mr. President, Members of the Court, for the reasons given the Court should not order
any of the measures requested by Timor-Leste. This is particularly so in light, amongst the other
matters already raised by Australia this morning, of the irreparable prejudice that could be caused Il
to Australia by the indication of the provisional measures sought and by the additional undertakings
given by Australia.
Mr. President, Members of the Court, that brings to an end Australia's first round of oral
argument. I thank you for your kind attention.
The PRESIDENT: Professor Crawford, this indeed brings to an end the first round of oral
observations of Australia. Before adjourning the sitting, I give the floor to Judges Bennouna,
Cançado Trindade, Yusuf, Donoghue and Greenwood, who have questions for the Parties.
Monsieur lejuge Bennouna, vous avez la parole.
Judge BENNOUNA: I thank you, Mr. President. My question is addressed to the Australian
delegation and it is as follows:
"Can the Australian Delegation explain to the Court why the search warrant was
delivered on 2 December 2013 and executed on 3 December, i.e., two days before the
first hearingof the Arbitral Tribunal, held on 5 December 2013?"
Thank you, Mr. President.
Le PRESIDENT: Je vous remercie, Monsieur le juge. Je passe la parole à Monsieur lejuge
Cançado Trindade. Vous avez la parole, Monsieur.
Judge CANÇADO TRINDADE: Thank you very much, Mr. President. My question is
addressed to both Parties, Timor-Leste and Australia.
"What is the impact of a State's measures of alleged national security upon the
conduction of arbitral proceedings between the Parties? In particular, what is the
effect or impact of seizl.ireof docUments anddataT , rifllcircuril.stancesof1:liepréseirt
case, upon the settlement of an international dispute by negotiation and arbitration?"
Thankyou.
The PRESIDENT: Thank you, Judge Cançado Trindade. I give the floor to Judge Yusuf.
You have the floor, Sir. -49-
Judge YUSUF: Thank you, Mr. President. My question is also addressed to both Parties. I
would like to ask them the following question:
"In the view of the Parties, to whom did the individual items listed in the ASIO
') Property Seizure Record of 3 December 2013 and their contents belong at the time of
their seizure?"
Thank you, Mr. President.
The PRESIDENT: Thank you very much, Judge Yusuf. I give now the floor to
Judge Donoghue. You have the floor, Madam.
Judge DONOGHUE: Thank you, Mr. President.
"I have two questions for Australia about the Undertaking of the
Attorney-General provided to the Court today.
My first question relates to the chapeau that begins the paragraph on page 2. I
seek to clarify the significance of the first 'or' on line 1 of page 2. Under what
circumstances would the undertaking of the Attorney-General expire prior to this
Court's Judgment?
My second question also relates to the paragraph on page 2. I seek to clarify the
relationship between subparagraph (3) and subparagraph (4), in light of the fact that
subparagraph (4) begins with the phrase 'without limiting the above'. If Australia
wishes, for 'national security purposes', to provide the materialr information derived
from the material to a partof the Australian Government that has responsibility for the
matters described in subparagraph (4), could it do so consistent with the
Undertaking?"
Thankyou.
The PRESIDENT: Thank you very much. I give the floor to Judge Greenwood. You have
the floor,Sir.
Judge GREENWOOD: Thank you, Mr. President. My question is for Australia and it also
relates to the terms of the new undertaking that was put before the Court today. The question is in
two parts:
"(1) Does Australia undertake that no information derived from the documents seized
or from notes made in the course of the execution of the search warrant has
already been communicated to any person involved in the arbitration proceedings
or any person who might be involved in negotiations relating to the matters
referred toin paragraph 4 of that undertaking?
(2) In the event of a prosecution in Australia, will any of the documents seized or
information derived from those documents be disclosed in court in such a way that -50-
those documents or that information will be Iikely to come to the notice of persons
involved in the arbitration, in the proceedings in this Court or in any negotiations
of the kind to which 1have referred?"
Thank you, President.
1;1
The PRESIDENT: Thank you, Judge Greenwood. The text ofthese questions will be sent to 1
the Parties as soon as possible. The Parties are invited to provide their replies to the questions
orally in the course of these hearings. Timor-Leste may submit, if it so wishes, written comments
on Australia's replies to the questions put today as soon as possible, but not later than by
Friday 24 January 2014, 6 p.m. The Court will meet again tomorrow at 10 a.m. to hear the second
round of oral observations of Timor-Leste. The sitting is closed.
The Court rose at 12.05 p.m.
Public sitting held on Tuesday 21 January 2014, at 10 a.m., at the Peace Palace, President Tomka presiding, in the case concerning Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia)