INTERNATIONAL COURT OF JUSTICE
TIMOR-LESTE v. AUSTRAL/A
WRITTEN OBSERVATIONS OF AUSTRALIA
ON TIMOR-LESTE'S
REQUEST FOR PROVISIONAL MEASURES
13 JANUARY 2014 TIMOR-LESTE V. AUSTRAL lA
WRITTEN OBSERVATIONS OF AUSTRALIA
ON TIMOR-LESTE'S
REQUE ST FOR PROVISIONAL MEASURES
PART 1:INTRODUCTION ........................... .... .... ............. ..... ..................2.................................
PART II: FACTUAL BACKGROUND AND LEGAL CONTEXT .... .............................................3....
PART III:THE POSITION UNDER AUSTRALIAN LAW ...... .... .... ...................................10.
A. Powers and functions of ASI0 .......................................................11.....................
B. Issue and execution of ASIO search warrants ........................................ .............. 13
C. Framework governing legal professional privilege .............................................. 16
PART IV: THE POSITION UNDER INTERNATIONAL LAW .................................. :.............21......
A. General principles applying to provisiona l measures ........................................... 21
B. Criteria applied by the court in considering requests for provisional measures ...24
(1) Prima facie jurisdiction ...........................................................24...........
..................
(2) Plausible character of the rights whose protection is being sought and the link
between these rights and the measures requested ............................................ 25
(3) Risk ofineparable prejudice and urgency ............................................................. 26
c. Factors in this case relevant to the application of the principles and criteria
identifiedin this Part ............................................................................................. 27 PART 1:INTRODUCTION
1. I have the honour to refer to the Application submitted by the Governrnent of
Republica Democratica de Timor-Leste ("Timor-Leste") to the International Comt of Justice
("the Comt") instituting proceedings against the Commonwealth of Australia ("Australia")
and Timor-Leste's Request for Provisional Measmes ("Request"), both of which were
submitted on 17 December 2013. Australia is pleased to avail itself of the oppmiunity to
submit these Written Observations on Timor-Leste's Requ~st.
2. In essence, the provisional measures requested by Timor-Leste are:
(a) that the documents and data removed from 5 Brockrnan St, Narrabundah, in the
Australian Capital Territory on 3 December 2013 ("the materials") be sealed and
delivered into the custody of the Cowt;
(b) that Australia deliver to Timor-Leste and to the Court a list of the materials that it has
disclosed or transmitted, or the information contained in the materials which it has
disclosed or transmitted, to any person, and a list of the identities or çlescriptions of
and current positions held by such persons;
(c) that Australia deliver within five days to Timor-Leste and to the Court a list of any
and ali copies that it has made of any of the materials;
(d) that Australiadesh·oybeyond recovery any and all copies of the materials, and use
every effmi to secme the destruction beyond recovery of ali copies that it has
transmitted to any third patty, and inform Timor-Leste and the Court of ali steps taken
in pursuance ofthat order for destruction, whether or not successful; and
(e) that Australia give an assurance that it will not intercept communications between
1
Timor-Leste and its legal advisers.
3. In response to Timor-Leste's Request, Australia submits that the Court should not
indicate the provisional measures requested by Timor-Leste, or any other provisional
measmes. Australia's Written Observations are structured as follows:
(a)In Pmi Il, Australia provides the Comi with the relevant factual background and legal
context.
1
This measure appears unrelated to the removal of documents and data from 5 Brockrnan St, Natnbundah.
2 (b) In Pa1t III, Australia sets out the relevant provisions of Australian law concerning the
removal of the materials on 3 December 2013, and explains the procedures that are
available under Australian law to challenge the validity of the search warrants and to
assett any legal professional privilege that might attach to the materials.
(c) In Patt IV, Australia outlines the principles and law that should be applied by the
Court in considering Timor-Leste's Request, as well as sorne of the factors which
should lead the Court to conclude that it is not appropriate to indicate provisional
measures in this case.
4. Against this background, Australia submits that the Court should reject the
provisional measures requested by Timor-Leste, because:
(a) The issues raised by Timor-Leste should be dealt with by an Australian court,
pursuant to the comprehensive framework established under Australian law.
(b) To the extent that Timor-Leste seeks any interim measures of protection under
international law - which Australia strongly submits is unnecessary - such protection
should be sought from the Arbitral Tribunal already constituted in the proceedings
that Timor-Leste has commenced against Aush·alia under Alticle 23 of the Timor Sea
Treaty between the Government of East Timor and the Government of Australia ("the
Timor Sea Treaty").2
(c) Timor-Leste's request for the indication of provisional measures does not satisfy the
requirements of Atticle 41 ofthe Statute of the Intemational Court of Justice ("the ICJ
Statute") such as to require the making of any orders by this Comt .
PART Il: F ACTUAL BACKGROUND AND LEGAL CONTEXT
5. In considering Timor-Leste's Request, it is impmiant that the Comt be infmmed of
the factual background to these proceedings. It is evident that Timor-Leste's brief
Application and Request deal in on1y the most superficial way with that background. In
support ofits Application and Request, Timor-Leste merely states that:
On 3 December 2013, ·officers of the Australian Security Intelligence Organisation ('ASIO'), acting
under.warrants issued by the Attorney-General of Australia attended1aresidence in Canberra
at 5 Brockman Street, Narrabundah, in the Australian Capital Territory, Australia and seized
2 Timor Sea Treal)' between the Government of East Timor and the Government of Australia, signed 20 May
2002, [2003] ATS 13, 2258 UNTS 3 (entered into force 2 Apri12003) (''TimorSea Treaty").
3 documents, data and other property which belong to Timor-Leste a1dor which Timor-Leste has the
right to protect under international lawe documents and data') from those premises. The owner of
the above-mentioned office 1 residence is Legal Adviser to and a Legal Representative of the
Governrnent of East Tirnor.
6. Timor-Leste fmther states that the materials removed include "documents and data
containing correspondence between the Government of Timor-Leste and its Legal es [sic],
among them documents relating to the conduct of the pending AJ:bitration under the Timor
4
Sea Treaty between Timor-Leste and Australia."
7. Timor-Leste's present Request is thus made in the context of and relates directly to
the Timor Sea Treaty arbitration proceedings. In those proceedings, which were commenced
5
by Timor-Leste on 23 April 2013 by way of a Notice of Arbitration, Timor-Leste claims that
a separate treaty, the Treaty befl,veen Australia and the Democratie Republic of Timor-Leste
6
on Certain Maritime Arrangements in the Timor Sea ("the CMATS Treaty"), is invalid
because Australia, by allegedly engaging in espionage, did not conduct the CMATS Treaty
negotiations in good faith. 7 In accordance with long-standing policy, Australia neither
con:firms nor denies Timor-Leste's allegations of espionage. But it denies Timor-Leste's
claim that the CMA TS Treaty is invalid.
8. Shmtly after the commencement of the Timor Sea Treaty arbitration proceedings, a
number of allegations made by Timor-Leste and representatives of Timor-Leste were
repmted in the media:
(a) In a media repmt published by the Australian Broadcasting Corporation ("ABC") on
29 May 2013, Mr Collaery specifically alleged that: "The operation was conducted by
[ASIS] and of course it operated and repmted at the relevant times to foreign minister
8
Downer."
(b) In a press repmt published in The Australian on 29 May 2013, Mr Collaery finther
alleged that Australia's then Minister for Foreign Affairs knew of the alleged
3Request, para. 2.
4Request, para. 3.
5Notice of Arbitration, Timor-Leste, dated 23 April2013 [Annex 1].
6
Treaty belween Australia and the Democratie Republic of Timor-Leste on Certain Maritime Arrangements in
the Timor Sea, signed 12 January 2006, [2007] ATS 12,2483 UNTS 359 (entered into force 23 February 2007)
("CMATS Treaty").
7 "Arbitration under the Timor Sea Treaty", Joint Media Release by Senator the Hon. Bob Carr, Minister for
Foreign Affairs and Trade, and the Hon. Mark Dreyfus QC MP, Attorney-General, dated 3 May 2013, available
8t: http://foreignminister.gov.au/releases/2013/bcl30503.html.
Sara Everingham, "East Timor Defends Gas Treaty Challenge", ABC, dated 29 May 2013, available at:
http://www.abc.net.au/pm/content/20 13/s3770299.htm.
4 operation, stating that: "Downer cetiainly knew ... It was a carefully premeditated,
involved, very lengthy operation with premeditated breaches of the Vienna
Convention on the Law of Treaties, and premeditated breaches of the Vienna
Convention on Diplomatie Relations. "9
(c) In another repoti published by the ABC on 29 May 2013, Mr Collaery alleged that
Timor-Leste had "inefutable" evidence to suppoti the allegations. 10
(d) As for the source of Mr Collaery's alleged evidence, the Jornal Independente, a
newspaper published in Timor-Leste, reported on 31 May 2013 that "revelations that
[the Australian Secret Intelligence Service ("ASIS")] broke into and bugged Timorese
cabinet rooms nine years ago were brought to light by a former ASIS employee
cunently unwell in an Australian hospital", who allegedly made the disclosure to
Timor-Leste or its representatives "in a bid to clear his conscience." 11
(e) In a report published in The Economist on 8 June 2013, Timor-Leste's Foreign
Minister, Alfredo Pires, is reported as repeating Mr Collaery's claim that Timor-Leste
h~"d irrefutable proof' that ASIS had "illegally obtained information". 12
9. Australia submitted a Response to the Notice of Arbitration on 19 June 2013,
notifying Timor-Leste of its party-appointed arbitrator. 13 The International Bureau of the
Petmanent Comi of Arbitration has been appointed by Australia and Timor-Leste to act as
14
Registry in the arbitration.
1O. Australia is actively and constructively engaged in those international arbitration
proceedings. Australia has cooperated with Timor-Leste in the establishment of the Tribunal,
and has provided assistance to the Tribunal to ensme a proper and effective hem·ingof the
dispute. Australia produced a draft of the Rules of Procedure and forwarded those to Timor-
9 Leo Shanahan, "Aussie Spies Accused of Bugging Timor Cabinet", The Australian, dated 29 May 2013,
availabie at: http://www.theaustra1ian.corn.au/national-affairs/policy/aussie-spies-a…-
1abinetlstory-fn59nm2j-122665259904. ·
°Karen Barlow, "East Timor's Accusations of Australian Espionage Have Not Damaged Relations, Says Bob
Can" , ABC, dated 29 May 2013, available at: http://www.abc.net.au/news/2013-05-29/australia-accused-of
spying-on-east-timor-government/4720466.
1 Julio da Silva, "Xanana still Waiting for Response fi·om Australia about CMATS", Jornal Independente,
dated 31 May 2013, p. 9 [Annex 2]. ·
12
"Timor-Leste and Australia: Bugs in the Pipeline", The Economist, dated 8 June 2013, available at:
http://www.econornist.com/news/asia/21579074-timorese-leaders-push-bett…
bugs-pipeline.
13Response to the Notice of Arbitration, Australia, dated 19 June 2013 [Annex 3).
14 Terms of Appointment 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, dated 5 December 2013 [Annex 4].
5 15
Leste for comment on 1 October 2013, with a view to reaching agreement on those Rules to
aid the Tribunal.
11. Although both Australia and Timor-Leste are under obligations of confidentiality
16
concerning the Timor Sea Treaty arbitration proceedings, the Tribunal has agreed that this
requirement shall not apply insofar as is required for either Party to submit copies of
correspondence, pleadings, and transcripts relating to the arbitration in the proceedings
initiated by Timor-Leste before this Court. 17
12. On 3 December 2013, the day on which the materials were removed by ASIO, and
shortly before the Tribunal's First Procedural Meeting, Mr Collaery made futther allegations
in an interview on the "Lateline" programme which was broadcast by the ABC. 18
Specifically, he alleged that:
(a) The Director-General of ASIS had "ordered a team into Timor to conduct work which
was well outside the proper functions of ASIS".
(b) Timor-Leste's witness was "not sorne disaffected spy", but was the "director of all
19
technical operations of ASIS ... a senior, experienced, decorated officer".
13. On 4 December 2013, the Attorney-General of Australia, Senator the Hon. George
Brandis QC, made a Ministerial Statement on the execution by ASlü' of the sem·chwarrants.
This is a statement made to the Parliament of Australia, and the making of such a statement
reflects the Attorney-General's ministerial responsibility to Parliament (and to the whole of
Australia) in the performance of his public duties. In his Ministerial Statement, the Attorney
General explained that the search watTantshad been issued by him "at the request of ASIO,
on the grounds that the documents and electronic data in question contained intelligence
relating to national security matters." 20 He futther explained that the sem·chwarrants, which
were issued under section 25 of the Australian Security Intelligence Organisation Act 1979
15Letter to HE Mr Jose Luis Guterres, Minister of State for Foreign Affairs and Cooperation, dated 1 October
2013 [Annex 5].
16
Procedural Order No. 1 (Rules of Procedurein 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, dated 6 December 2013, Article
26(5) [Annex 6].
17 Procedural Order No. 2 (Waiver of Confidentiality Requirements), Arbitration pw·suant to the Timor Sea
Treaty between the Govemment of East Timor and the Governrnent of Australia of 20 May 2002 between the
18mocratie Republic ofTimor-Le ste and the Commonwealth of Australia, dated 7 January 2014 [Annex 7].
"Bernard Collaery, Lawyer for East Timor", Lateline, ABC, dated 3 December 2013, available at:
http://www.abc.net.au/Jateline/content/2013/s3904428.htrn.
19 "Bernard Collaery, Lawyer for East Timor", Lateline, ABC, dated 3 December 2013, available at:
http://www.abc.net.au/lateline/content/2013/s3904428.htm. ·
20
Senator the Hon. George Brandis QC, Attorney-General , "Ministerial Statement: Execution of ASIO Seat·ch
Warrants", dated 4 December 2013, p. 1 [Annex 8].
6(Cth) ("the ASIO Act"), can only be issued "by the Attomey-General at the request of the
Director-General of ASIO, and only if the Attomey-General is satisfied as to certain
matters." 21 In that statement to the Parliament, the Attorney-General expressly addressed,
and rejected, Timor-Leste's daim that the search wa.ITantswere issued in order to subvert or
impede the Timor Sea Treaty arbitration proceedings, stating that:
1have given an instruction to ASIO that the material taken into possession in execution of the wanant s
is not under any circumstances to be communicated to those conducting the proceedings on behalf of
Australia.2
That instruction was subsequently reiterated in the letter to ASIO referred to in paragraph 23
belo w.
14. The Tribunal constituted under the Timor Sea Treaty arbitration convened on 5
December 2013 in The Hague for its First Procedural Meeting. At the First Procedural
23
Meeting, counsel for Timor-Leste raised the substance of the matter now before this Co mt .
Among other things, Timor-Leste requested that Australia advise what would be done with
the materials removed under warrant on 3 December 2013, 24 and on what date they would be
returned. 25 Timor-Leste also tendered to the Tribunal a letter setting out a list of the materials
removed on 3 December 2013.2 The materials identified in the letter are consistent with the
27
ASIO Property Seizure Record of 3 December 2013, a copy of which was provided to a
member ofMr Collaery's staff on that date.
15. In response to Timor-Leste's requests, the Agent for Australia informed the Tribunal
that the materials would be dealt with in accordance with Australian law, and would not be
communicated to any persons conducting the Timor Sea Treaty arbitration proceedings on
21Senator the Hon. George Brandis QC, Attorney-General, "Ministerial Statement: Execution of ASIO Search
Warrants", dated 4 December 2013, p. 1 [Annex 8].
22
Senator the Hon. George Brandis QC, Attorney-General , "Ministeria l Statement: Execution of ASIO Sem·ch
23rrants", dated 4 December 2013, p. 2 [Annex 8].
Transcript, First Procedural Meeting in the Matter of an Arbitration pursuant to the Timor Sea Treaty between
the Governrnent of East Timor and the Govemment of Australia of 20 May 2002 between the Democratie
Republic of Timor-Leste and the Commonwealth of Australia, dated 5 December 2013 ("Transcript") [Annex
24.
25Transcript, p. 29, !ines 9 to 17 [Annex 9].
Transcript, p. 36, !ines 6 to 17; p. 37, !ines 1 to 14; p. 39, line 8 top. 40, line 15; and p. 41, !ines 6 to 8 [Annex
9)-
2 Letter from Bernard Collaery to Ambassador Joaquim AML da Fonseca, dated 5 December 2013 [Annex 10].
27e also Transcript, p. 42, line 20 top. 43, line 3 [Annex 9].
ASIO Property Seizure Record, dated 3 December 2013 [Annex 11].
7behalf of Australia. The Agent informed the Tribunal that the Attorney-General of Australia
had made this clear in his earlier Ministerial Statement on 4 December 2013. 28
16. The Agent for Australia also advised that the materials were unable to be returned at
that time, and that no undettaking could then be made as to the date of return, which was
governed by domestic legislation? 9 A written copy of the statement made by the Agent on
30
these issues was tendered to the Tribunal.
17. Although Timor-Leste assetis in its Request that its "ability to prepare for the pending
Arbitration is materially impaired", 31 Timor-Leste agreed at the First Procedural Meeting that
its preparation for the arbitration would not be prevented or substantially delayed by the
32
seizure of the materials. Timor-Leste suggested that it needed an additional two weeks to
prepare its Statement of Claim in the matter, 33 and this suggestion was incorporated in the
agreed timetable ofpleadings leading to a hearing in September 2014. 34
18. Timor-Leste also raised a concern that Australia had put itself in a position of
advantage with respect to the arbin·ation,and asked how that would be handled. ln pruiicular,
Timor-Leste sought an undetiaking regarding the management of a perceived ministerial
conflict of interest in the arbitr·ation,which turned on the role played by Australia's Attomey
General in both the arbih'ation and the execution of the search warrants on 3 December
35
2013. The Agent for Australia undetiook to respond to that matter in writing by 19
December 2013. 36
19. The Attorney-General of Australia subsequently provided a written undertaking to the
Tribunal dated 19 December 2013. In that undettaking, the Attorney-General declared that:
1 have given an instruction to ASIO that the content of the Material or any information derived from
the Material, is not under any circumstances to be communicated to those conducting these proceedings
37
on behalf of the Commonwealth of Australia.
28Transcript, p. 29, line 19, top. 36, line 5 [Annex 9].
29Transcript, p. 29, line 19 to p. 36, line 5; p. 38, line 13 to p. 39, line 6; and p. 40, line 20 to p. 41, line 9
30nnex 9].
"Statement on Domestic Legal Processes", dated 5 December 2013 [Annex 12] and Transcript, p 38, line 7 to
line 12 [Annex 9].
31Request, para. 9.
32Transcript, p. 39, line 8 top . 40, line 15; and p. 42, line 3 top. 43, line 20 [Annex 9].
33
34Transcript, p. 42, !ines 11 to 19 [Annex 9].
Transcript, p. 51, lines 17 to 19;and p. 55, lines Il to 16 [Annex 9].
35Transcript, p. 49, line 8 top . 51, line 3 [Annex 9].
36Transcript, p. 72, line 10 top. 73, line 9 [Annex 9].
37 Arbitration under the Timor Sea Treaty, Written Undertaking by Senator the Hon. George Brandis QC,
Attorney-General of the Commonwealth of Australia, dated 19 December 2013 [Annex 13].
820. He also declared that:
The Material will not be used by any patt of the Australian Government for any pUt'[)OSreelated to this
38
arbitt·ation.
21. The Attorney-General made the following undertaking:
I UNDERTAKE to the Tribunal that:
I will not make myself aware or otherwise seek to inform myself of the content of the Material or any
information derived from the Material; and
Should I become aware of any circumstances in which it may become necessary for me to inform
myse lf of the Material, 1will first bring that fact to the attention of the Tribuna l, at which time further
undertakings will beoffered.9
22. Regrettably, without waiting to recetve the Australian Attorney-General's written
undertaking, and two days before the agreed time for Australia 's response on this point,
Timor-Leste instituted the present proceedings before the Comt and requested the indication
of provisional measures.
23. The Attorney-General subsequently wrote to the Director-General of Security on 23
December 2013, directing that the measures set out in the 19 December undertaking (in
relation to the Timor Sea Treaty arbitration proceedings) be implemented equally in relation
40
to the proceedings instituted before this Comt.
24. Timor-Leste has since sought before the Tribunal a clarification of a matter arising out
41
of the Attorney-General's written undertaking. That request has been responded to. Suffice
to say the undertaking is clear and comprehensive on its face. If Timor-Leste had any
continuing concern, it could be expected to raise it before the Tribunal which would have
ample authority to deal with it.
25. Timor-Leste has advanced no reason why the Comt should not be satisfied with the
Attorney-General's undettaking or why the Attorney-General's instruction to ASIO in
relation to the handling of the material is not a sufficient manner of dealing with any
legitimate concerns.
38
Arbitration under the Timor Sea Treaty, Written Undertaking by Senator the Hon. George Brandis QC,
Attorney-General of the Commonwea lth of Austt·alia,dated 19 December 2013 [Annex 13].
39 Arbitt·ation under the Timor Sea Treaty, Written Undertaking by Senator the Hon. George Brandis QC,
Attorney-General of the Commonwealth of Australia, dated 19 December 2013 [Annex 13].
40 Letter from Senator the Hon. George Brandis QC, Attorney-General, to Mr David Irvine AO, Director-
41neral ofSecurity , dated 23 December2013 [Annex 14]. ·
Letter from the Agent for Timor-Leste to the Agent of Austt·aJia, dated 23 December 2013 [Annex 15].
926. Following the First Procedural Meeting on 5 December 2013, the Tribunal adopted
Rules of Procedure for the conduct of the arbitration. 42 Those Rules include Article 21,
which provides:
Article 21. Interim Measures of Protection
1. 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 patty.
2. Such interim measures may be established in the fonn of an interim award. The arbitral tribunal
shall be entitled to require security for the costs of such measures.
3. A request for interim measures addressed by any pa.tty to a judicial authority shall not be deemed
incompatible with the agreement to arbitrate,a waiver ofthat agreement.
27. Timor-Leste has not availed itself of the possibility of requesting interim measures
before the Tribunal, which is, in Australia's submission, the proper forum for consideration
of any such request. However, it is Australia's strong submission that the issues raised in
Timor-Leste 's request are comprehensively addressed in Australian law, which provides the
most effective and appropriate framework for resolving them.
PART Ill: THE POSITION UNDER AUSTRALIAN LAW
28. Timor-Leste's Request concerns ASIO's removal under a search warrant of materials
from the premises at 5 Brockman St, Narrabundah, Australian Capital Territory, on 3
December 2013, and ASIO's retention ofthose materials. A list of the materials removed is at
Annex 11. ASIO officers acting under warrant attended other premises in Canberra at the
same time and removed documents and other material. The documents and material removed
from those other premises are not the subject of the proceedings commenced by Timor-Leste
before the Court.
29. This Part sets out the Australian legal framework governing the powers and functions
of ASIO, the issue and execution of sem·chwanants, and matters relating to legal professional
privilege under Australian law. It also outlines the application of this framework to the
circumstances raised in Timor-Leste's Request.
42
Procedural Order No. 1 (Rules of Procedure) in the Matter of an Arbitration pm·suant to the Timor Sea Treaty
between the Government of East Timor and the Govemment of Australia of 20 May 2002 between the
Democratie Republic of Timor-Leste and the Commonwea lth of Australia, dated 6 December 2013, dated 6
December 2013 [Annex 6].
10 A. POWERS AND FUNCTIONS OF ASIO
30. As was explained by the Australian Attorney-General in his Ministerial Statement of
4 December 2013, and by the Agent of Australia at the First Procedural Meeting of the
Tribunal on 5 December 2013, the search warrant was issued by the Attorney-General under
43
the ASIO Act. This legislation establishes ASIO under legislation, section 17(1) identifies
its functions as including the following:
(a) to obtain, correlate and evaluate intelligence relevant to security;
(b) for purposes relevant to security, to communicate any such intelligence to such persons, and in such
manner, as are appropriate to those purposes"; and
(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security,
in so far as those matters are relevant to thei.t·functions and responsibilities;
[...]
(e) to obtain within Australia foreign intelligence pUts·uant to section 27A or 27B of this Act or section
liA, !lB or Il C of the Telecommunication s (Interception and Access) Act 1979, and to communicate
any such intelligence in accordance with this Act or the Telecommunications (Interception and
Intelligence) Act 1979.4
31. The term "security" is defined in section 4 of the ASIO Act as meaning:
(a) the protection of, and of the people of, the Commonwealth and the severa! States and Territories
from:
espionage;
sabotage;
politically motivated violence;
promotion of communal violence;
attacks on Australia's defence system;
acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(aa) the protection of Australia's territorial and border integrity fi'omserious threats; and
(b) the caiTying out of Australia's responsibilities to any foreign country in relation to a m45ter
mentioned in any ofthe subparagraphs ofparagr aph (a) or the matter mentioned in paragraph (aa).
32. As is made clear in the Attorney-General's "Guidelines in relation to the performance
by ASIO of its function of obtaining, correlating, evaluating and communicating intelligence
43
Australian Security Intelligence Organisation Act 1979 (Cth) ("ASIO Act"), s 6 [Annex 16].
44 ASIO Act, s 17(1) [Annex 16]; Telecommunications (Interception and Access) Act 1979 (Cth), ss liA , llB
and ll C [Annex 17].
45
ASIO Act, s 4 [Annex 16].
11relevant to security (including politically motivated violence)", which were issued under
section 8A of the Act, ASIO's functions under section 17require it, interalia:
(a) to undertake inquiries to determine whether a particular subject or activity is relevant to security;
(b) to investigate subjects and activities relevant to security;
(c) to develop and maintain a broad understanding ofthe security environment; and
(d) to analyse and assess information obtained, and to provide intelligence and advice to relevant
authorities.6
33. The Attorney-General's Guidelines further provide that, in performing its functions,
ASIOmay :
(a) collect, maintain, analyse and assess information related to inquiries and investigations;
(b) collect and maintain a comprehensive body of reference material to contextualise intelligence
derived from inquiries and investigations; and
(c) maintain a broad database, based on the above, against which information obtained in relation to a
specifie inquiry or investigation can be checked and assessed.
34. The Attorney-General's Guidelines clarify that infmmation obtained by ASIO is
"relevant to security" where it may assist in determining whether:
(a) there is a connection or possible connection between a subject and activities relevant to security,
irrespectiveofwhen such activities have occurred or may occur;
(b) lhe açlivilies of a subject are not relevant to security; or
(c) a person, group or entity other than the subject has a conneotion or possible connection to activities
48
relevant to security.
35. Australia's maintenance of an organisation such as ASIO is consistent with the
practice of many other States which have national security intelligence services with similar
49
functions to ASI0 . Ausb:alia also has ASIS, which is Australia's foreign intelligence
46
Attorney-General's Guidelines in relation to the performance by ASIO of its function of obtaining,
correlating, evaluating and communicating intelligence relevant to security (including politically motivated
violence), para. 6.1 [Annex 18].
47
Attorney-General's Guidelines in relation to the performance by ASIO of its function of obtaining,
coiTelating, evaluating and communicating intelligence relevant to security (including politically motivated
violence), para. 6.2 [Annex 18].
48 Attorney-General 's Guidelines in relation to the performance by ASIO of its function of obtaining,
correlating, evaluating and communicating intelligence relevant to security (including politically motivated
violence), para. 10.1 [Annex 18].
49 See, e.g., the United States, where the FBI is provided for under 28 USC Chapter 33; the United Kingdom,
where the Security Service is provided for under the Security Services Act 1989 (UK); France, where the
Central Directorate of Homeland Intelligence is provided for under Decree 2008-609 relating to the role and
organisation of the Central Directorate of Homeland Intelligence of 27 June 2008; the Russian Federation,
where Federal Law No. 40-FZ on Organs of the Federal Security Service in the Russian Federation of 22
February 1995 provides for the Federal Security Service; Italy, where the Internai Security and Intelligence
Agency operates under Law No. 124 of 8 March 2007 (Intelligence System for the Security of the Republic and
New Provisions Governing Secrecy); Mexico, whose Centre for Research and National Security is created under
the National Security Act of31 January 2005; and Uganda, whose Internai Security Organisation operates under
the Security Organisations Act 1987.The relevant legislative provisions are set out in the table at Annex 19.
12 50
service, and many States also have a foreign intelligence agency. Sorne States appear to
51
have a single intelligence service covering both functions. Timor Leste's Decree Law No.
03/2009 establishes the "National Intelligence Service" ("SNI"), which has a "Department of
52
Intemal Intelligence". The SNI's functions include the production of "intelligence that
contributes towards the safeguarding of national independence, national interests and external
security, including the guarantee of internai security". 53 Specifie functions include promoting
"research, collection, analysis, interpretation and storage of intelligence and data", and
informing "the competent authorities ... of news and intelligence that come to its knowledge
54
relating to internai security and to crime prevention and repression."
B. ISSUE AND EXECUTION OF ASIO SEARCH WARRANTS
36. The search warrants that were executed by ASIO on 3 December 2013 were issued by
the Attorney-General as the Minister referred to in section 25 of the ASIO Act. Section 25
provides in relevant patt as follows:
(1) 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 wananin accordance with this section.
(2) The Minister is only to issue the warrant he or she is satisfied that there are reasonable grounds
for believing that access by the Organisation to records or other things on patticular premises (the
subject premises) will substantially assist the collection of intelligence in accordance with this Act in
respect of a matter (the security matter) that is important in relation to security.
37. As is clear from the sem·chwarrant that was issued by the Attorney-General on 2
December 2013 in respect of the "subject premises" at 5 Brockman St, Narrabundah,
50ASIS operates under the Intelligence Services Act 2001 (eth). Other States with a foreign intelligence agency
include,e.g., France, whose Directorate-General of Externat Security operates under the Deferree Code, Decree
No. 2008-1210 of25 November 2008 (as amended by Decree No. 2012-1391 of Il December 2012); ltaly,
where the External Security and Intelligence Agency is provided for under Law No. 124 of 8 March 2007
(Intelligence System for the Security of the Republic); Russia, whose Foreign Intelligence Service operates
under Federal Law No. 5-FZ of 10 Januaty 1996 on Foreign Intelligence; the United Kingdom, where the Secret
Intelligence Service operates under the Intelligence Services Act 1994 (UK); and the United States, where the
Central Intelligence Agency is established under the National Security Act of 1947. The relevant legislative
provisions are set out in the table at Annex 19.
51See e.g., New Zealand, where the New Zealand Security Intelligence Service operates under the New Zealand
Security Intelligence Service Act 1996 (NZ); Slovakia, whose Slovak Information Service is provided for by the
Act of the National Council of the Slovak Republic dated 21 January 1993 on the Slovak Information Service;
Brazil, where the Brazilian Intelligence Agency is established under Law No. 9883 of 7 December 1999 that
establishes the Brazilian System of Intelligence and creates the Brazilian Agency of Intelligence - ABIN. The
relevant legislative provisions are set out in the table at Annex 19.
52Timor-Leste Decree Law No. 03/2009 (National Intelligence Service), Arts 1, 13 [Annex 20].
53Timor-Leste Decree Law No. 03/2009 (National Intelligence Service), Art 3 [Annex 20).
54
Timor-Leste Decree Law No. 03/2009 (National Intelligence Service), Art 5[Annex 20].
13Australian Capital Territory, 55 the Attomey -General was satisfied asto the matters indicated
in section 25(2) of the ASIO Act. Specifically, the Attorney-General declared that he was
satisfied that:
there are reasonable grounds for believing that access by the Organisation to records or other things on
the subject premises will substantially assist the collection of intelligence in accordance with this Act in
56
respect of a matter (the security matter) that is important in relation to security.
38. In the search warrant, the Attomey-General authorised ASIO to do as follows, m
accordance with section 25(4) ofthe ASIO Act:
a. enter the subject premises 5 Brockman St, Narrabundah ACT 2604.
b. seat·ch those premises for the purpose of finding records or other things relevant to the security
matter and, for that purpose, opening any safe, box, drawer, pat·cel,envelope or any other container in
which there is reasonable cause to believe that any sucb records or other things may be found.
c. inspect or otherwise examine any records or any other things found in the premises, and to make
copies or transcripts of any record so found that appears to be relevant to the collection of intelligence
by the Organisation in accordance with the Act.
d. remove and retain any record or other thing so found for the pm·poses of inspecting or examining it,
and, in the case of a record, for the pmposes of making copies or transcripts of it, in accordance with
the warrant.
e. do any thing reasonably necessary to conceal the fact that any thing has been done under the warrant.
57
f. any other thing reasonably incidental to the above.
39. In addition , the Attorney-General declared that he was satisfied that there was:
reasonable cause to believe that data relevant to the security matter may be accessible by using a
computer, other electronic equipment or data storage deviee brought to, or found on the subject
premises or carried by Bernard Joseph Edward Collaery and those of any persons present on the
residence.58
40. Under section 25(5) of the ASIO Act, the Attorney-Ge neral thus also authorised ASIO
to:
a. use any computer, or other electronic equipment or data storage deviee brought to or found in the
subject premises for the pm·pose of gaining access to data relevant to the security matter, and, if
necessary to achieve that pm·pose, to add, delete or alter other data in the computer or electronic or
equipment.
b. use any computer, or other electronic equipment or data storage deviee brought to or found in the
subject premises to do any of the following:
(i) inspect and examine any data to which access bas been obtained;
55
"Australian Security Intelligence Organisation Act 1979 (Cth) - Seat·ch Warrant under Section 25" [Annex
21].
56 "Australian Security Intelligence Organisation Act 1979 (Cth) - Seat·chWarrant under Section 25", para. 2
[Annex 21].
57
"Australian Security Intelligence Organisation Act 1979 (Cth) - Sem·ch Warrant under Section 25", para. 3
[Annex 21].
58 "Australian Security Intelligence Organisation Act 1979 (Cth) - Sem·ch Warrant under Section 25", para. 4
[Annex 21].
14 (ii) convert any data to which access has been obtained, that appears to be relevant to the collection of
intelligence by the Organisation in accordance with this Act, into documentary form and remove any
such document;
(iii) copy any data to which access has been obtained, that appears to be relevant to the collection of
intelligence by the Organisation in accordance with this Act, to a storage decide and remove the storage
deviee.
c. do any other thing reasonably necessary to conceal the fact that any thing has been done under the
warrant.
59
d. do any other thing reasonably incidental to any of the above.
41. The search warrant in respect of 5 Brockman St, Nanabundah, Australian Capital
Tenitory, was issued and executed in compliance with applicable Australian law.
42. Should either Timor-Leste or Mr Collaery wish to challenge the validity of the search
wanant that was issued by the Attorney-General on 2 December 2013 or its execution by
ASIO on 3 December 2013, there are appropriate procedmes available to them under
Australian law. Under section 75(v) of the Constitution of Australia, the High Court of
Australia has original jmisdiction in all matters in which a writ of mandamus or prohibition
or an injunction is sought against an officer of the Commonwealth. In addition, under section
39B(l) of the Judicimy Act 1903 (Cth), the Federal Court of Australia also has original
jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an
injunction is sought against an officer or officers of the Commonwealth. Timor-Leste or Mr
60
Collaery thus have the right to approach the Australian comts for remedies.
43. Specifically, if it is asserted or even just implied - which Australia would most
vigorously refute- that there was sorne improper or collateral purpose attached to the issue or
execution . of the search warrant at 5 Brockman St, Narrabundah, then there is a
constitutionally guaranteed right to make such asse1tions in proceedings brought before the
Federal Comt of Australia. Any such proceedings, if seriously contemplated, would have
been brought with expedition and ce1tainly b efore now. Timor-Leste's failure to bring any
such proceedings for what is now sorne six weeks speaks volumes toit s acceptance that it has
no such legitimate legal grievance. Ce1tainly, while domestic remedies remain unexhausted,
this Côurt should not allow its procedmes to be used, directly or indirectly, as a forum to air
this grievance.
59
"Australian Security Intelligence Organisation Act 1979 (CthSem·chWarrant under Section 25", para. 5
[Annex 21].
60See, e.g., Commissioner of Aush·atian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 [Annex
22]; AWB Ltd v Cole (No. 5) (2006) 155 FCR 30 [Annex 23]; and Baker v Evans (1987) 77 ALR 565.
1544. As any question of improper pm·pose in the issue or execution of the wanant in
question is not or should not be before this Court, that leaves the question of any claim to
legal professional privilege.
45. Timor-Leste has not sought to avail itself of remedies available under Australian law.
Its failure to do so should be taken intacco~ mnthe exercise of any discretion whether to
indicate provisional measures.
C. FRAMEWORK GOVERNING LEGAL PROFESSIONAL PRIVILEGE
46. Timor-Leste asserts in its Request that the materials that were removed from the
subject premises on 3 December 2013 consist of "privileged advice" which Timor-Leste has
"the right to protect under international law".1 Australia does not accept that such a right
exists under international law, at least not without substantial qualifications to the right, sorne
of which will be referred to below.
47. Here it is impmiant to note that Timor-Leste, as was perfectly within its rights to do,
engaged Australian legal counsel (DLA Piper) to advise on a possible claim to legal
professional privilege. By letter dated 10 December 2013, Timor-Leste's legal
representatives asserted that the materialsemovcù by ASIO "will, in all likelihood, include
documents that are subject to legal professional privilege," and (inter alia) demanded the
retum of the materials.2
48. What is critical to note is that Australia has at all times acted responsibly and
appropriately to ensure that Timor-Leste could effectively exercise its rights under Australian
law to seek to assett that it had legal professional privilege in any of the removed materials.
Thus, in executing the search warrant on 3 December 2013, ASIO recognised the possibility
that a claim to legal professional privilege might be made over sorne of the materials
removed. Accordingly, a legal officer accompanied the ASIO sem·chteam, and hard copy
materials which were removed from the subject premises were only brie:fly inspected, in
order to be able to identify their relevance to the subject matter of the search wanant and to
identify them on the property seizure record which was completed at the time of the
execution of the ·search watTant. A copy of the property seizure record was provided to a
member of Mr Collaery's staff present at the premises at 5 Brockman Street, NatTabundah.
61Request, paras. 2, 6.
62Letter from DLA Piper to Senator the Hon. George Brandis QC, Attorney-General, dated 10 December 2013
[Annex 24].
16With one exception, ail materials were then placed in sealed envelopes and have remained
sealed to the present day.63
49. Whether the documents have been treated in accordance with Australian law can be
tested in Australian comts. For this pm·pose, there are procedures available to resolve
disputes between the Commonwealth and Timor-Leste or Mr Coilaery as to how these
documents should be handled, whether legal professional privilege exists or whether any
privilege which might othetwise exist is lost through one of the exceptions (most relevantly,
the fraud 1 crime exception, which is explained below). This matter is capable of
determination in judicial review proceedings or a declaratory or other suit before an
64
Australian court expeditiously. Indeed, had Timor-Leste acted swiftly, the matter could
have now been weil on its way to resolution in an Australian comt. As such the appropriate
forum for the determination of any claim to legal professional privilege is an Australian
court. Plainly this issue is not to be decided by the unilateral assettion of one of the parties.
50. Fmther to this, in correspondence with the legal representatives for Timor-Leste,
Australia has made a procedure available to Timor-Leste for it to assert any legal professional
privilege that might attach to the materials. Thus:
(a) By letter dated 16 December 2013, the Australian Government Solicitor informed the
legal representatives of Timor-Leste in Australia (DLA Piper) that, although Australia
did not accept that privilege was available in respect of the materials, Australia was
prepared "to take no steps now" in relation to the materials. Australia also invited
Timor-Leste to provide, by 5.30pm on 19 December 2013, Australia with details of
the material over which a claim for legal professional privilege was made; details of
the basis of such a claim; and any draft proposed application or pleading. 65
(b) By letter dated 18 December 2013, the legal representatives of Timor-Leste noted that
Australia had failed to address its various requests, including the return of the
materials. Timor-Leste did not take up Australia's proposed procedure for the
determination of legal professional privilege, but informed Australia that it had
commenced proceedings before the Comt. It also asked Australia to confirm that it
63
A mobile phone found not to be relevant tothe investigation was returned on 6 December 2013.
64See, e.g., AWB Ltd v Cole (No. 5) (2006) 155 FCR 30 [Annex 23]; see also Commissioner of Australian
Federal Police v Propend Finance Pty Ltd (1997) 188CLR 501 [Annex 22]; and Baker v Evans (1987) 77 ALR
565.
65Letter from the Australian Govemment Solicitor to DLA Piper, dated 16 December 2013 [Annex 25].
17 would not take any steps in relation to the materials, pending the resolution of this
66
matter by the Co mi.
(c) By letter dated 19 December 2013, Australia stated that it would take no steps in
relation to the materials while it considered its position in light of the institution ofthe
proceedings before the Court, and reiterated its invitation to Timor-Leste to make
"any claim under domestic law" with respect to the materials, stating that the deadline
for this was now 5.30pm on 20 December 2013. 67
(d) By letter dated 21 December 2013, the legal representatives of Timor-Leste "reserved
its rights" with respect to any claim under domestic law, and reiterated that Timor
68
Leste had initiated separate proceedings before the Court.
(e) By letter dated 24 December 2013 to the legal representatives of Timor-Leste,
Australia observed that it had had "ample oppmiunity to commence domestic
proceedings" to make any claims, and that it had not done so "despite 20 days having
passed since the execution of the warrant on 3 December 2013." Australia informed
Timor-Leste's legal representatives that, in response to the direction made by the
President of the Court under Atiicle 74(4) of the Rules of Court, "Australia will take
no steps in relation to ... the material seized from Mr Collaery's premises on 3
December 2013 ... until the International Comi of Justice has heard the request for
provisional measures on 20-22 January 2014", and that if Timor-Leste intended to
69
make any claim under domestic law "it should do so weil prier to 22 January 2014."
51. To be clear, Australia has assured Timor-Leste that it shall take no steps in relation to
the materials until the Court has heard the request for provisional measures. But the
0
Attorney-General's declaration as made in his Ministerial Statement on 4 December 2013/
71
which was repeated in his undetiaking on 19 December 2013 - that the materials are not
under any circumstances to be communicated to those conducting the Timor Sea Treaty
arbitration proceedings on behalf of Australia - has no temporal limitation. Similarly, the
Attorney-General 's letter to the Director-General of Secmity of 23 December 2013 -
directing that the materials are not to be communicated to those conducting the proceedings
66
67Letter fi·omDLA Piper to the Australian Govemment Solicitor, dated 18 December 2013 [Annex 26].
Letter fi·omthe Australian Govemment Solicitor to DLA Piper, dated 19 December 2013 [Annex 27].
68Letter from DLA Piper to the Australian Govemment Solicitor, dated 21 December 2013 [Annex 28].
69Letter fi·omthe Australian Government Solicitor to DLA Piper, dated 24 December 2013 [Annex 29].
70Senator the Hon. George Brandis QC, Attorney-General, "Ministerial Statement: Execution of ASIO Search
71rrants",dated 4 December 2013 [Annex 8].
Arbitration under the Timor Sea Treaty, Written Undertakin g by Senator the Hon. George Brandis QC,
Attorney-General of the Commonwealth of Australia, dated 19 December 2013 [Annex 13].
18 72
on behalf of Australia before this Court- is without temporal limitation. In addition, the
Attomey-General 's undertaking to the effect that he would not seek to infmm himself of the
contents of the materials is also unlimited in time with a proper recognition that the Tribunal
73
would be informed if circumstances were to change.
52. Timor-Leste has instituted proceedings before the Court in circumstances where the
most appropriate forum for the detetmination of whether sorne or all of the materials may be
protected by legal professional privilege is an Australian court. Australian courts provide a
forum for the expeditious resolution of such questions, and Australian legislation provides
appropriate protections to safeguard national security in proceedings which raise national
security matters. 74
53. Nevertheless, Australia disputes Timor-Leste's claim that the materials removed from
the subject premises at 5 Brockman Street, Narrabundah, Australian Capital Territory can
benefit from any such privilege. Under Australian law, legal professional privilege attaches
to confidential communications between clients and lawyers for the dominant pm·pose of
75
giving and receiving legal advice, or for use in existing or anticipated Iitigation. There is a
range of bases open to Australia to deny any assettion by Timor-Leste that the materials are
subject to le gal professional privilege. In particular, Australian law- like that of many other
countries - recognises an exception to legal professional privilege where any such
communication is made or prepared in furtherance of a fraud or a criminal offence; 76 the law
72 Letter fi·om Senator the Hon. George Brandis QC, Attorney-General, to Mr David Irvine AO, Director
General ofSecurity, dated 23 December 2013 [Annex 14].
73
Arbitration under the Timor Sea Treaty, Written Undertaking by Senator the Hon. George Brandis QC,
Attorney-General of the Commonwealth of Australia, dated 19 December 2013 [Annex 13].
74National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) [Annex 30].
75See, e.g., Esso Australia Resources Ltd v Commissioner for Taxation (1999) 201 CLR 49; see aIso Evidence
Act 1995 (Cth), ss 118-119, and see also s 120, which extends the privilege to unrepresented litigants [Annex
76].
For the position in Australian law, see, e.g., Evidence Act 1995 (Cth), s 125, which reflects the position at
· common law [Annex 31]; see further AWB Ltd v Cole (No. 5) (2006) 155 FCR 30, 87-94 [Annex 23];
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 [Annex 22]; and
Attorney-General (NT) v Kearney (1985) 158 CLR 500, 511-515 (Gibbs CJ). The legal systems of other
countries recognise a similar exception to legal professional privilege,the protection fi·om disclosure of
confidential information. In this regard, the position in Belgium, Denmark, France, Germany, India, Indonesia,
Morocco, New Zealand, Russia, Slovakia, Switzerland, Uganda, the United Kingdom, and the United States is
summarised in the table at Annex 32. Notably, a similar exception is recognised in the legislation of Timor
Les te [Annex 33]. International courts and tribunals have also recognised the existence of exceptions (incl.uding
a fi·aud1crime exception) to legal professional privilege or the protection of confidential information: see, e.g.,
Robathin v Austria (European Court of Human Rights, Judgment of 3 July 2012), para. 42; Wieser and Bicos
Beteiligungen GmbH v Austria (European Court of Human Rights, Judgment of 16 October 2007), para. 55;
Smirnov v Russia (European Court ofHuman Rights, Judgment of7 June 2007), paras. 43-44; St Marys VCNA,
LLC v Government of Canada (Arbitration under Chapter 11 of the North American Free Trade Agreement
("NAFTA"), Expe1tReport on lnadvertent Disclosure ofPrivileged Documents of27 December 2012), p. 4; and
also William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of
19of sorne countries also recognises an exception where thet i~an oveniding public interest to
the maintenance ofthe privilege or confidentiality. 77
54. Any asset1ion on the part of Timor-Leste that legal professional privilege attaches to
the materials should therefore be considered against the background facts of the present
dispute, as set out in Part II above, including in pat1icular the various public statements made
by and on behalf of Timor-Leste. Australia recalls that these statements included assertions
78
that Timor-Leste was in possession of "inefutable proof ' that ASIS had "[broken] into and
79
bugged Timorese cabinet rooms". The evidence for these claims was asserted to be
provided by "a former ASIS employee". 80
55. On the basis of these and other public statements by Timor-Leste and its legal
representatives, there are reasonable grounds to consider that the materials over which Timor
Leste now asset1slegal professional privilege may concem the disclosure of national security
inf01mation and therefore involve the commission of a serious criminal offence under
Australian law. Such conduct may be contrary to, for instance, sections 39 and 41 of the
81 82
Intelligence Services Act 2001 (Cth), section 70 ofthe Crimes Act 1914 (Cth), and section
91.1 ofSchedule 1 to the Criminal Code Act 1995 (Cth). 83
56. Such prohibitions on the disclosure of State secrets, including with respect to
intelligence obtained in the course of employment with a State intelligence agency, can also
be found in the legislation of other States. These States include the United States, Canada,
the United Kingdom, France, New Zealand, Slovakia, Morocco, Russia, Somalia, and India. 84
85
Notably, they also include Timor-Leste.
Delaware Inc v Government of Canada (NAFTA, Procedural Order No. 16 of 15 November 2012), para.
3,where theNAFTA tribunal recognised that legal professional privilege was not absolute.
77See, e.g., the position in Belgium, Denmark, and Switzerland, surnmarised in the table at Annex 32.
78
"Timor-Leste and Australia: Bugs in the Pipeline", The Economist, dated 8 June 2013, available at:
http://www.economist.corn/news/asia/21579074-timorese-leaders-push-bett…
bugs-pipeline.
79 Julio da Silva, "Xanana still Waiting for Response from Australia about CMATS", Jornal lndependente,
dated 31 May 2013, p. 9 [Annex 2].
80
Julio da Silva, "Xanana still Waiting for Response from Australia about CMATS", Jornal Jndependente,
81ted 31 May 2013, p. 9 [Annex 2].
Intelligence Services Act 2001 (Cth), ss 39 and 41 [Annex 34].
82Crimes Act 1914 (Cth), s 70 [Annex 35].
83Criminal Code Act 1995 (eth) , Schedule 1, s 91.1(1); see aIso ss 91.1(2), 91.1(3), and 91.1(4) [Annex 36].
84
85The relevant legislative provisions are set out in the table in Annex 37.
Timor-Leste Decree Law No. 19/2009, Penal Code, Article 200, and Timor-Leste Decree Law No. 03/2009,
National Intelligence Service, Arts 21,29 and 30 [Annex 38].
2057. Thus the position on legal professiona l privilege in the materials is as follows:
(a) Whether there is legal professional privilege in the materials has not been established
under Australian law.
(b) Australian law provides an appropriate forum in which to decide this issue
expeditious ly, yet Timor-Leste, inexplicably, has not pursued those local remedies.
(c) Whether or not public international law recognises sorne right of legal professional
privilege which is independent of domestic law doctrines, it is implausible to think it
could operate free from the various qualifications evident in most domestic systems.
(d) In patticular, there is no reason to think that the balance which Australian law draws
between the confidentialit y of legal communications and the need not to facilitate
crime or fraud and not to harm security does not reflect, at least broadly, the balance
drawn by most other domestic systems, and that which would accord with any
international law right of legal professional privilege that might come to be
recognised in the future.
(e) Accordingly, this Court should, in Australia's submission, be very slow to allow itself
to be drawn into deciding questions of the existence and scope of legal profcssional
privilege, let alone indicating provisional measures in advance of any such
examination , when the claimant State refuses to expose itsdaim to the jurisdiction of
the comts of the country in which it chose, it says, to engage in the communications
and bring into existence the materials.
PART IV: THE POSITION UNDER INTERNATIONAL LAW
58. In this Pa1t, Australia will outline the principles to be applied by the Court in
considering the application for provisional measures. Australia will also list in a summary
form the factors which should lead the Comt to conclude that it is not appropriate to indicate
provisional measures in this case, let atone the detailed provisional measures sought by
Timor-Leste.
A. GENERAL PRINCIPLES APPLYING TO PROVISION AL MEASURES
59. Alticle 41, paragraph 1 ofthe ICJ Statute provides:
The Coutt shaii have the power to indicate, if it considers that circumstances so require, any
provisional measures which ought to be taken to preserve the respective rights of either pa1ty.
2160. As noted by the Court in Inte1pretation of the Temple of Preah Vihear Judgment,
Orderof18 July2011:
[T]he power of the Court to indicate provisional measures under Article 41 of the Statute has as its
object the preservation of the respective rights of the patties pending the decision of the Court; whereas
it follows that the Court must be concerned to preserve by such measur es the rights which may
86
subseq uently be adjudged by the Court to belong to either pat1y.
61. A number of essential elements can be drawn from the Statute and jurispmdence of
this Court. First, as noted by Judge ad hoc Cot in the Interpretation of the Temple of Preah
VihearJudgment case:
The indication of provisiona l measure s is always an exceptional measure, since the Court limits the
fi·ee exercise of the parties' rights before ruling on its own jurisdiction , that is before satisfying itself
that it has the consent of the pattie s to the proceedings. This power must be exercised wisely and with
87
discretion under the circumstance s.
That quality of discretion involves the element of what is judicious and prudent in the
prevailing circumstances. lt is closely linked also to the other element of discretion which the
Court has - that is, the freedom according to its own judgment as to whether it should or
should not grant provisional measures; in short, the power to grant provisional measures is a
discretionary one to be exercised with pmdence.
62. The second point which flows from the text of Alticle 41 itself is that, subject to the
Comt's oveniding discretion, it is the circumstances which prevail at the time the request is
made and considered which should necessitate the grant of provisional measures for the
pm·poses stated in that Article. It is not past circumstances or possible future circumstances.
The time for making a request for provisional measures is when those circumstances have
arisen or are about to arise.
63. Thirdly, in considering a request for provisional measures the Cowt should consider
and balance the rights of both parties. This principle flows from Alticle 41 itself:
"...measures which ought to be taken to preserve the respective rights of either pruty". As
noted in the Commentary on the ICJ Statute:
86
Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah
Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July2011, I.C.J
Reports 2011, 537 ("lnte1pretation of the Temple of Preah Vihear Judgment").
87Inte1pretation of the Temple ofPreah Vihear Judgment, Dissenting Opinion of Judge ad hoc Cot, 627.
22 The rights concemed are the rights ofboth patties and therefore it is vital for the Coutt to consider what
action is called for in order to ensure that none of the parties is put at a disadvantage...
64. Fmiher, in his separate opinion in the Pulp Mills case, Judge Abraham noted:
When acting on a request for the indication ofprovisional measures, the Coutt is necessarily faced with
conflicting rights (or alleged rights), those claimed by the two parties, and it cannot avoid weighing
those rights against each other ... ln issuing such injunctions, the Court necessarily encroaches upon
the respondent's sovereign rights, circumscribing their exercise ... I fmd it unthinkable that the Court
... should order a State to refrain from a particular action, to hold it in abeyance or to cease and desist
89
from it, unless there is reason to believe that it is, or would be, unlawful.
65. It follows that the Comt in considering the provisional measures requested by
Timor-Leste, must have regard to the rights of Australia that would be impacted by any order
that the Comt makes, particularly if those rights go to the very heart of the national security
of Australia and its ability to enforce its criminal law. The weight to b.e accorded to a
90
respondent's rights is necessarily greater where proceedings could last a long time and
where the underlying issue is capable of being dealt with in another forum in a much shmter
timeframe.
66. Fomthly, the binding character of provisional measures should lead to caution, not
only in deciding whether or not to indicate provisional measures but also as to their content.
Again, as noted by Judge Abraham in the Pulp Mills case:
Where a mere suggestion is being made to a State, there is hardly any need to ensure that it is not liable
to trespass upon the sovereign rights of the State: the recipient of the recommendation is fiee to act
upon it as it deems appropriate and, in determining its response, can factor in its assessment of the
strengthof its position and the impottance of the interests at stake ... With the Judgment of 27 June
2001 [LaGrand] ... [i]t is now clear that the Coutt does not suggest: it orders. Yet, and this is the
crucial point, it cannot order atate to conduct itself in a certain way simply because anotber State
claims that sucb conduct is necessary to preserve its own rights, unless the Court has canied out sorne
88Zimmermann, Tomuschat, Oellers-Frahm and Tams, The Statute of the International Court of Justice - A
Commentwy (2"ded, Oxford University Press, 2012) ("ICJ Commentary"), p. 1035 [Annex 39]. See also Kolb,
The International Court of Justice (Hart Publishing, Oregon, 2013) ("Kolb"), pp. 621-2 [Annex 40]; Thirlway,
The Law and Procedure of the International Court of Justice, Fifty Years of Jurisprudence (Oxford University
Press, 2013) ("Thirlway"), Volume II, pp. 1782, 1785 [Annex 41].
89Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, 1.C.J.
Reports 2006, 113 ("Pulp Mills"), 139; see also Passage through the Great Belt (Fin/and v. Denmark),
Provisional Measures, I.C.J. Reports 1991, 12 ("Passage through the Great Belf'), Separate Opinion of Judge
Shahabuddeen, 29; Bin Cheng, General Princip/es of Lmv as applied by International Courts and Tribunals
(Grotius Publications Ltd, 1987), p. 273 citing Cie d'Électricité de Sofia et de Bulgarie (1923) 2 T.A.M. 924,
pp. 926-7 [Annex 42].
9
°Kolb, p. 614 [Annex 40].
23 minimum review to determine whether the rights thus claimed actually exist and whether they are in
danger ofbeing violated - and irreparably so ...
67. Fifthly, the Comt needs to be wary of the misuse of provisional measures requests
92
particularly when the request appears to be the raison d'etre of the whole proceedings or
where it forms patt of an applicant's litigation strategy "with a view to obtaining a moral and
legal 'victory' by putting pressure on the Respondent State". 93 This factor is particularly
relevant if another court or tribunal is already seised of the matter and would be able to deal
promptly with an application for binding provisional measures of the smt requested.
68. In this respect, the Comt is not an alternative forum for seeking provisional measmes
where the provisional measures sought are clem·ly capable of being considered in another
tribunal which is already seised of the matter. This is to be contrasted with the position of the
Intemational Tribunal for the Law of the Sea which may prescribe provisional measmes
pending the constitution of an m·bitraltribunal under the 1982 United Nations Convention on
94
the Law of the Sea.
B. CRITERIA APPLIED BY THE COURT IN CONSIDERING REQUESTS FOR PROVISIONAL
MEASURES
95
69. The Comt m recent cases bas considered requests for provisional measures by
reference to three matters , though there may be additional other factors that are highly
relevant.
(1) Prima facie jurisdiction
70. In its most recent order concerning provisional measmes dated 13 December 2013 in
96
response to a request by Nicaragua , the Comt held:
91
Pulp Mills, 139-40; Kolb, p. 650 [Annex 40]; ICJ Commentary, p. 1043 (footnote 109) [Annex 39]; Thirlway,
92lume 1, p. 929, Volume II,pp. 1778-9,1782, 1785, 1807-8 [Annex 41].
Treves, "The Political Use of Unilateral Applications and Provisional Measures Proceedings", in Frowein et
al (eds), Verhande/nfiïr den Frieden/Negotiatingfor Peace, Liber Amicorum Tono Eifel (Springer, 2003), 463,
~-466 [Annex 43].
3
94Kolb, p. 615 [Annex 40]; ICJ Commentary, pp. 1072 [Annex 41].
1833 UNTS 397, Article 280.5. It would appear that the International Comt of Justice could, by agreement of
the parties to a dispute, also consider provisional measures pending the constitution of a tribunal under the 1982
Convention.
95Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica); Certain Activities
Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Requesf presentee/ by Nicaragua for
the Indication of Provisional Measures, Order of 13 December 2013 t'Construction of a Road'ï; Certain
ActivitiesCarried Out by Nicaragua in the Border Area (Costa Rica v.Nicaragua); Provisiona/ Measures,
Orcier of 8 Mm·ch 2011, J.C.J. Reports 201/,6 ("Certain Activities"); Questions relating to the Obligation to
Prosecute or Extradite (Belgium v. Senegal), Provisiona/ Measures, Order of28 May 2009, J.C.J. Reports 2009,
967.
Construction of a Road, para. 12.
24 The Court may indicate provisional measures only if the provisions relied on by the Applicant appear,
prima facie, to afford a basis on whichts jurisdiction could be founded, but the Court need not satisfy
itself in a defmitive manner that it bas jurisdiction as regards the merits of the case (see, for example,
Questions relating to the Obligation to Prosecute or Extradite (Be/gium v. Senegal), Provisional
Measures, Order of28 May 2009, I.C.J. Reports 2009, p. 147, para. 40).
As part of this consideration, the Court should also conclude that the application of which it
97
is seised is prima facie admissible. The Court also should give the question of prima facie
jurisdiction its "fullest consideration compatible with the requirements of urgency..." 98
(2) Plausible character of the rights whose protection is being sought and the link between
these rights and the measures requested
71. The Cowt in its order of 13 December 2013 in the Construction of a Road case stated
also:
... the Court may exercise [the power to indicate provisional measures under Article 41 of the Statute]
only if it is satisfied that the rights asserted by the requesting party are at !east plausible (see, for
example, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, Order of 8 Match 2011, J.C.J. Reports 2011 (!), p. 18,para. 53; Questions
relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures,
Order of28 May 2009, 1.C.J. Reports 2009, p. 151, para. 57)
Moreover, a linkmust exist between the rights which form the subject of the proceedings before the
Court on the merits of the case and the provisional measures being sought (Certain Activities carried
out by Nicaragua in the Border Area (Costa Rica v.Nicaragua), Provisional Measures, Order of 8
March 2011, J.C.J. Reports 2011 (!), p.18,para. 54); Questions relating to the Obligation to Prosecute
or Extradite (Belgium v.Senegal), Provisional Measures, Order of28 May 2009, l:C.J. Reports 2009,
p. 151, para. 56).
72. Australia has already noted above the need for the Court to carry out sorne minimum
review to determine whether the rights claimed actually exist and whether they are in danger
100
ofbeing violated.
97 Land and Maritime Boundmy between Cameroon and Nigeria, Provisional Measures, Order of 15 March
1996, J.C.J. Reports 1996, 13, 21; see also Kolb, pp. 624-5 [Annex 40]; Thirlway, Volume 1, p. 936, Volume II,
~· 1771 [Annex41].
8 Militmy and Paramilitmy Activities in and against Nicaragua (Nicaragua v. United States of America),
Provisional Measures, Order of JO May 1984, I.C.J. Reports 1984, 169, 179. It has been noted that the
rationale for this is that interference with the sovereignty of States may be the priee for preserving the
substantive rights and that therefore the matter of jurisdiction should be given the fullest consideration possible
- see ICJ Comrnentary, p. 1042 [Annex 39].
99Construction of a Road, paras. 15-16.
100Pulp Mills, Separate Opinion of Judge Abraham, 140.
2573. As noted by Judge Greenwood in his declaration in the Certain Activities case:
... it cannot be sufficient for a party simply to assert that it has a right; it must have sorne prospect of
success ... The party must show that there is at !east a reasonable possibility that the right which it
claims exists as a matterof law and will be adjudged to apply to that patty's case.1
Also, sufficient material should be presented to demonstrate the possibility of the existence of
the right sought to be protected, and to allow the Court to properly consider the existence of
102
that right.
(3) Risk of irreparable prejudice and urgency
74. The Court in the Construction of a Raad case noted:
The Court, pm·suantto Article 41 of its Statute, has the power to indicate provisional measmes when
ineparable prejudice could be caused to rights which are subject of the judicial proceedings (see, for
example, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, Order of8 March 2011, I.C.J. Reports 2011(1), p. 21, para. 63).
The power of the Court to indicate provisional measures will be exercised only if there is urgency, in
the sense that there is a real and imminent risk that irreparable prejudice will be cause to the rights in
103
dispute before the Court has given its final decisio(ibid),pp. 21-22, para. 64.
The relationship between the parties, any undertakings given by the respondent and the
availability of binding provisional measures in another forum are ali factors highly relevant to
the assessment of both irreparable prejudice and urgency. In relation to the matter of
urgency, Kolb has noted:
The decision is more contextual, and more a matter of appreciation than might at fust seem to be the
case. Any guarantees the respondent is able to give are obviously important; so are the general and
special relations between the two disputing States, whether peaceful and happy or tense and
mistrustful. The same goes for the pursuit (or non-put·suit) of other parallel procedures for resolving
the dispute, whether diplomatie or institutional, especially the existence or otherwise of other
provisional measures a rising fi·om such procedures, and also whether or not such procedures are
binding. In short, the Court has to assess the whole context, and form an appreciation of it. It is not in
the abstract, but very much in the concrete context that the urgency of the situation has to be judged.
101 Certain Activities, Declaration of Judge Greenwood, 47, Separate Opinion of Judge ad hoc Dugard, 62;
102sage through the Great Belt, Separate Opinion of Judge Shahabuddeen, 30; Pulp Mills, para. 6.
Passage through the Great Belt, Separate Opinion of Judge Shahabuddeen, 31.
103Construction of a Raad, paras. 24-25.
104Kolb, p. 631 [Annex 40]. See aiso, ICJ Cornmentary, pp. 1048-9 [Annex 39].
26 C. FACTORS IN THIS CASE RELEVANT TO THE APPLICATION OF THE PRINCIPLES AND
CRITERIA IDENTJFIED IN THIS PART
75. Bearing in mind the legal principles and requirements identified above, 105 it is
Australia's submission that the Comt is not in a position where it could or should indicate
provisional measures given the circumstances of this case which include the following:
(a) The material removed from the premises at 5 Brockman Street, Narrabundah,
Australian Capital Territory was ail brought within or created within Australia and is
subject to Australian law. It is not the subject of any fmm of special protection under
international law such as the protections under the Vienna Convention on Diplomatie
Relations 106or the Vietma Convention on Consular Relations. 107 Both Conventions
are fully implemented under Australian law; in any event it is not suggested that the
material removed is covered by either.
(b) In those circumstances it is implausible that Timor-Leste has a right as aState under
international law to ownership of the materials in a manner which is immune from the
processes of domestic law in the tenitory it chose to enter.
(c) Matters which are palpably tho se of national security and the enforcement of criminai
law within a State are in the ordinary course matters for the State concerned. The
Comt should be very cautious in making orders which would affect adversely the
abilityof the State to act in those areas.
(d) Consideration of most of the legal prerequisites for the indication of provisional
measures cannot take place as the rights that Timor-Leste seeks to protect by way of
provisional measures simply have not been identified by Timor-Leste in its
application or are at best speculative.
(e) The Tribunal established under the Timor Sea Treaty is effectively seised of the
matter and is operating on an agreed and tight timetable in relation to the underlying
dispute. Should any provisional measures be required under international law, the
Tribunal is in a better position than the Court to exercise its agreed powers, both as to
its ownjurisdiction and as to discretionary elements.
105Pa1tII, sub-parts A andB.
106500 UNTS 95.
107596 UNTS 261.
27 (f) Timor-Leste has remedies available to it under Australian law. Timor-Leste has
·consistently refused to avail itself of those existing avenues and instead seeks to bring
the matter before the Court.
(g) The undetiakings refened to in Pati II that have been given by Australia respectively
quarantine the use of the materials which were removed from the premises at 5
Brockman Street, Narrabundah from legal advisers involved in the Timor Sea Treaty
arbitration or these proceedings.
(h) Timor-Leste has advanced no ground on which the Comt would conclude that either
the Attomey-General's undetiaking or the direction given to ASIO do not sufficiently
protect the claimed rights, to the extent they are discemible or plausible.
76. Australia will provide fmther elaboration of the matters raised in these Written
Observations in the course of the oral proceedings and reserves the right to raise additional
arguments at that time.
John Reid
Agent for Australia
13 January 2014
28 CERTIFICATION
I certify that the annexes are true copies of the documents referTedto and that the translations
provided are accurate.
J.D. Reid
Agentof Australia
13 January 2014
29
Written observations of Australia on Timor-Leste's Request for provisional measures