INTERNATIONAL COURT OF JUSTICE
_____________________________________________
QUESTIONS RELATING TO THE SEIZURE AND DETENTION OF
CERTAIN DOCUMENTS AND DATA
(TIMOR-LESTE v. AUSTRALIA)
COUNTER-MEMORIAL OF AUSTRALIA
VOLUME I
COUNTER-MEMORIAL
ANNEXES 1 - 28
28 JULY 2014 INTERNATIONAL COURT OF JUSTICE
_____________________________________________
QUESTIONS RELATING TO THE SEIZURE AND DETENTION OFCERTAIN
DOCUMENTS AND DATA
(TIMOR-LESTE v. AUSTRALIA)
COUNTER-MEMORIAL OF AUSTRALIA
28 JULY 2014 INTERNATIONAL COURT OF JUSTICE
_____________________________________________
QUESTIONS RELATING TO THE SEIZURE AND DETENTION OFCERTAIN
DOCUMENTS AND DATA
(TIMOR-LESTE v. AUSTRALIA)
COUNTER-MEMORIAL OF AUSTRALIA
28 JULY 2014 Volume I: Counter-Memorial and Annexes 1-28
Counter-Memorial
Chapter 1 – Introduction......................................................................................................1
Section I. The dispute......................................................................................................1
A. The subject matter of the dispute ......................................................................1
B. The question before the Court...........................................................................2
Section II. Australia and Timor-Leste enjoy a close and positive bilateral relationship.4
Section III. Structure of this Counter-Memorial .............................................................7
Chapter 2 – Preliminary issues............................................................................................9
Section I. Australia’s right to territorial sovereignty is a primary consideration ..........10
A. Australia enjoys sovereignty over its territory and the freedom to exercise
jurisdiction over its nationals therein ..............................................................10
B. Australia’s territorial sovereignty is a primary consideration in resolving the
dispute.............................................................................................................11
Section II. Laws protecting national security are a necessary and accepted exercise of
territorial sovereignty....................................................................................14
A. The protection of national security is a fundamental exercise of territorial
sovereignty......................................................................................................14
B. Laws protecting national security are standard practice among States...........16
Chapter 3 – The relevant facts...........................................................................................23
Section I. Australia’s actions involved an exercise of territorial sovereignty, over an
Australian national, to protect Australia’s national security.........................23
A. ‘K’ and Mr Collaery divulged, without authorisation, Australian national
security information ........................................................................................24
Office of International Law B. The unauthorised disclosures were prejudicial to Australia’s national security
and put at risk the safety and lives of individuals ...........................................27
Attorney-General’s Department
Canberra C. The actions of ASIO were a reasonable and necessary response to the threats
posed by the actions of ‘K’ and Mr Collaery..................................................31 Volume I: Counter-Memorial and Annexes 1-28
Counter-Memorial
Chapter 1 – Introduction......................................................................................................1
Section I. The dispute......................................................................................................1
A. The subject matter of the dispute ......................................................................1
B. The question before the Court...........................................................................2
Section II. Australia and Timor-Leste enjoy a close and positive bilateral relationship.4
Section III. Structure of this Counter-Memorial .............................................................7
Chapter 2 – Preliminary issues............................................................................................9
Section I. Australia’s right to territorial sovereignty is a primary consideration ..........10
A. Australia enjoys sovereignty over its territory and the freedom to exercise
jurisdiction over its nationals therein ..............................................................10
B. Australia’s territorial sovereignty is a primary consideration in resolving the
dispute.............................................................................................................11
Section II. Laws protecting national security are a necessary and accepted exercise of
territorial sovereignty....................................................................................14
A. The protection of national security is a fundamental exercise of territorial
sovereignty......................................................................................................14
B. Laws protecting national security are standard practice among States...........16
Chapter 3 – The relevant facts...........................................................................................23
Section I. Australia’s actions involved an exercise of territorial sovereignty, over an
Australian national, to protect Australia’s national security.........................23
A. ‘K’ and Mr Collaery divulged, without authorisation, Australian national
security information ........................................................................................24
B. The unauthorised disclosures were prejudicial to Australia’s national security
Office of International Law
Attorney-General’s Department and put at risk the safety and lives of individuals ...........................................27
Canberra
C. The actions of ASIO were a reasonable and necessary response to the threats
posed by the actions of ‘K’ and Mr Collaery..................................................31 D. The warrant was executed to mitigate the risks posed to Australia’s national
security and did not benefit Australia or cause detriment to Timor-Leste in the
Arbitration.......................................................................................................35
Section II. Australia has implemented a range of measures to mitigate the potential risk
to any plausible rights of Timor-Leste or others...........................................36
A. Safeguards were put in place during the execution of the warrant..................36
B. The Attorney-General made a range of statements, directions and undertakings
to preserve Timor-Leste’s rights .....................................................................38
Section III. There is serious doubt as to the correct characterisation of the Materials..43
Chapter 4 – There is no unqualified right of confidentiality or legal professional privilege
in communications between a State and its legal advisers............................49
Section I. The purported right of confidentiality of, and non-interference in,
communications between a State and its legal advisers should be approached
cautiously......................................................................................................51
A. There is no unqualified right of confidentiality of, and non-interference in,
communications between a State and its legal advisers..................................51
B. Any right of confidentiality or non-interference is qualified and must not be
used for an improper purpose..........................................................................53
C. Any right of confidentiality or non-interference is waived where the
information is disclosed by the relevant party.................................................56
Section II. The ‘right of legal professional privilege’ is not a recognised concept of
international law ...........................................................................................58
A. Legal professional privilege is not a general principle of law.........................58
B. Any formulation of legal professional privilege under international law should
be appropriately and narrowly defined............................................................63
C. There are exceptions to legal professional privilege to avoid abuse of
process.............................................................................................................65
D. The criminal offence exception is widely recognised as an exception to legal
professional privilege......................................................................................66
Section III. Timor-Leste’s claims must fail...................................................................68
A. There is no established right of confidentiality or privilege in the Materials..68
B. Timor-Leste has no right of confidentiality or privilege in any Materials that
facilitate or further a criminal offence.............................................................73
ii D. The warrant was executed to mitigate the risks posed to Australia’s national
security and did not benefit Australia or cause detriment to Timor-Leste in the
Arbitration.......................................................................................................35
Section II. Australia has implemented a range of measures to mitigate the potential risk
to any plausible rights of Timor-Leste or others...........................................36
A. Safeguards were put in place during the execution of the warrant..................36
B. The Attorney-General made a range of statements, directions and undertakings
to preserve Timor-Leste’s rights .....................................................................38
Section III. There is serious doubt as to the correct characterisation of the Materials..43
Chapter 4 – There is no unqualified right of confidentiality or legal professional privilege
in communications between a State and its legal advisers............................49
Section I. The purported right of confidentiality of, and non-interference in,
communications between a State and its legal advisers should be approached
cautiously......................................................................................................51
A. There is no unqualified right of confidentiality of, and non-interference in,
communications between a State and its legal advisers..................................51
B. Any right of confidentiality or non-interference is qualified and must not be
used for an improper purpose..........................................................................53
C. Any right of confidentiality or non-interference is waived where the
information is disclosed by the relevant party.................................................56
Section II. The ‘right of legal professional privilege’ is not a recognised concept of
international law ...........................................................................................58
A. Legal professional privilege is not a general principle of law.........................58
B. Any formulation of legal professional privilege under international law should
be appropriately and narrowly defined............................................................63
C. There are exceptions to legal professional privilege to avoid abuse of
process.............................................................................................................65
D. The criminal offence exception is widely recognised as an exception to legal
professional privilege......................................................................................66
Section III. Timor-Leste’s claims must fail...................................................................68
A. There is no established right of confidentiality or privilege in the Materials..68
B. Timor-Leste has no right of confidentiality or privilege in any Materials that
facilitate or further a criminal offence.............................................................73 Submissions ....................................................................................................................145
Certification ....................................................................................................................147
Appendix – The Arbitration and the Timor Sea treaty regime........................................149
Section I. The details of the Arbitration are not relevant to this case..........................149
Section II. Timor-Leste’s submissions on the Timor Sea treaty regime are misleading
and need to be corrected .............................................................................151
A. Outline of the Timor Sea treaty regime.........................................................152
B. The 2002 Timor Sea Treaty...........................................................................153
C. The International Unitisation Agreement......................................................158
D. The Treaty on Certain Maritime Arrangements in the Timor Sea ................160
Index of Annexes ...........................................................................................................165
Annexes 1-28……………………………………………………………………………173
ivSubmissions ....................................................................................................................145
Certification ....................................................................................................................147
Appendix – The Arbitration and the Timor Sea treaty regime........................................149
Section I. The details of the Arbitration are not relevant to this case..........................149
Section II. Timor-Leste’s submissions on the Timor Sea treaty regime are misleading
and need to be corrected .............................................................................151
A. Outline of the Timor Sea treaty regime.........................................................152
B. The 2002 Timor Sea Treaty...........................................................................153
C. The International Unitisation Agreement......................................................158
D. The Treaty on Certain Maritime Arrangements in the Timor Sea ................160
Index of Annexes ...........................................................................................................165
Annexes 1-28……………………………………………………………………………173 Materials have not been, and will not be, made available to those conducting the
2 3 4
Arbitration, these proceedings or any hypothetical future negotiations. These
undertakings have been confirmed and reinf orced by the Court’s Order of
3 March 2014, with which Australia has complied in full. It follows that
Timor-Leste has not been disadvantaged (in the Arbitration or otherwise) in any
way as a result of the execution of the warrant.
B. T HE QUESTION BEFORE THE C OURT
1.4. In its Order of 3 March 2014, the Court identified the ‘principal claim’ of
Timor-Leste as ‘a violation … of its right to communicate with its counsel and
lawyers in a confidential manner with regard to issues forming the subject -matter
5
of pending arbitral proceedings and future negotiations between the Parties’.
The Court specifically identified three categories of rights asserted by
Timor-Leste, being:
(1) ‘the rights to inviolability and immunity’ of the Materials
(2) the ‘right to the confidentiality of communications’ between
Timor-Leste and its legal advisers, and
(3) legal professional privilege. 6
2
Senator the Hon. George Brandis QC, Attorney-General of Australia, ‘Written Undertaking’,
Arbitration under the Timor Sea Treaty, 19 December 2013 [Annex 74].
3Letter from Senator the Hon. George Brandis QC, Attorney-General of Australia, to Mr David
Irvine AO, Director-General of Security, 23 December 2013 [Annex 53].
4Senator the Hon. George Brandis QC, Attorney-General of Australia, ‘Written Undertaking’,
Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v.
Australia), 21 January 2014 [Annex 54].
5Order on the Request for the Indication of Provisional Measures, Questions relating to the
Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia), 3 March 2014,
[27].
6
Order on the Request for the Indication of Provisional Measures, Questions relating to the
Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia), 3 March 2014,
[24].
2Materials have not been, and will not be, made available to those conducting the
2 3 4
Arbitration, these proceedings or any hypothetical future negotiations. These
undertakings have been confirmed and reinf orced by the Court’s Order of
3 March 2014, with which Australia has complied in full. It follows that
Timor-Leste has not been disadvantaged (in the Arbitration or otherwise) in any
way as a result of the execution of the warrant.
B. T HE QUESTION BEFORE THE C OURT
1.4. In its Order of 3 March 2014, the Court identified the ‘principal claim’ of
Timor-Leste as ‘a violation … of its right to communicate with its counsel and
lawyers in a confidential manner with regard to issues forming the subject -matter
5
of pending arbitral proceedings and future negotiations between the Parties’.
The Court specifically identified three categories of rights asserted by
Timor-Leste, being:
(1) ‘the rights to inviolability and immunity’ of the Materials
(2) the ‘right to the confidentiality of communications’ between
Timor-Leste and its legal advisers, and
(3) legal professional privilege. 6
2
Senator the Hon. George Brandis QC, Attorney-General of Australia, ‘Written Undertaking’,
Arbitration under the Timor Sea Treaty, 19 December 2013 [Annex 74].
3Letter from Senator the Hon. George Brandis QC, Attorney-General of Australia, to Mr David
Irvine AO, Director-General of Security, 23 December 2013 [Annex 53].
4Senator the Hon. George Brandis QC, Attorney-General of Australia, ‘Written Undertaking’,
Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v.
Australia), 21 January 2014 [Annex 54].
5Order on the Request for the Indication of Provisional Measures, Questions relating to the
Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia), 3 March 2014,
[27].
6
Order on the Request for the Indication of Provisional Measures, Questions relating to the
Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia), 3 March 2014,
[24]. and could not override the sovereign rights of Australia referred to in
sub-paragraph (1), and
(4) the Attorney-General’s comprehensive package of undertakings to the
Arbitral Tribunal and the Court rem oves any risk of damage to
Timor-Leste’s position in current or future legal proceedings, or in
any future hypothetical negotiations wh ich may take place between
the Parties.
Section II. Australia and Timor-Leste enjoy a close and positive
bilateral relationship
1.9. Australia and Timor-Leste enjoy a close and positive relationship, and
Australia has a strong and continuing interest in the stability, security and
prosperity of its neighbour. In light of this relationship, Australia regrets that
Timor-Leste’s Memorial creates the impression th at Australia has acted to the
detriment of Timor-Leste, particularly in relation to the resources of the seabed
8
between the two States. Timor -Leste’s Memorial does not acknowledge the
positive character of the bilateral relationship and paints a misleadi ng picture of
bilateral relations.
1.10. Australia has taken the leading role in peace -keeping and stabilisation
efforts in Timor-Leste, including the International Force in East Timor, which
deployed in September 1999 and was led by Australia in accordance wi th
United Nations Security Council Resolution 1264, 9 and the International
8Timor-Leste, Memorial, [2.18]-[2.47].
9United Nations Security Council, Security Council Resolution 1264 (1999), adopted
unanimously, 15 September 1999, S/RES/1264 (1999).
4 and could not override the sovereign rights of Australia referred to in
sub-paragraph (1), and
(4) the Attorney-General’s comprehensive package of undertakings to the
Arbitral Tribunal and the Court rem oves any risk of damage to
Timor-Leste’s position in current or future legal proceedings, or in
any future hypothetical negotiations wh ich may take place between
the Parties.
Section II. Australia and Timor-Leste enjoy a close and positive
bilateral relationship
1.9. Australia and Timor-Leste enjoy a close and positive relationship, and
Australia has a strong and continuing interest in the stability, security and
prosperity of its neighbour. In light of this relationship, Australia regrets that
Timor-Leste’s Memorial creates the impression th at Australia has acted to the
detriment of Timor-Leste, particularly in relation to the resources of the seabed
8
between the two States. Timor -Leste’s Memorial does not acknowledge the
positive character of the bilateral relationship and paints a misleadi ng picture of
bilateral relations.
1.10. Australia has taken the leading role in peace -keeping and stabilisation
efforts in Timor-Leste, including the International Force in East Timor, which
deployed in September 1999 and was led by Australia in accordance wi th
United Nations Security Council Resolution 1264, 9 and the International
8Timor-Leste, Memorial, [2.18]-[2.47].
9United Nations Security Council, Security Council Resolution 1264 (1999), adopted
unanimously, 15 September 1999, S/RES/1264 (1999). Worker Program, which facilitates employment in Australia for individuals from
15
Timor-Leste.
1.12. The two States have long had different views with regard to maritime
boundary delimitation in the Timo r Sea. Such differences are common to States
with overlapping maritime claims. Through a series of bilateral negotiations,
Australia and Timor-Leste have reached a constructive compromise – embodied
in the Timor Sea treaty regime – which provides for the deferral of permanent
boundary delimitation in favour of the joint development of the petroleum
resources of the Timor Sea, for the benefit of both States. As a result of joint
cooperation under this arrangement and prudent decisions by the Government of
16
Timor-Leste, Timor-Leste has a Petroleum Fund worth US D15.7 billion.
Australia remains committed to the Timor Sea treaty regime negotiated between
the Parties, which enables the joint development of Timor Sea resources in the
near term.
1.13. However, the Timor Sea treaty regime, and the current Arbitration arising
under that regime, do not raise legal issues for determination by the Court. In this
respect, the considerable attention which Timor-Leste devotes to discussion of this
regime and the Arbitration in its Memorial is irrelevant. In any case,
Timor-Leste’s submissions regarding the Timor Sea treaty regime and the
Arbitration are selective and incomplete, and repeat as fact allegations and
assertions which have not been proved. To the extent that it is necessary to
15Government of Timor-Leste, Secretariat of State for Vocational Training Policy and
Employment, Seasonal Worker Program 2012-2014, 30 April 2014 (with English translation)
[Annex 58]; Australian Government Press Release, Australian Embassy in Dili, ‘“Seasonal
Workers” husi Timor-Leste ba Northern Territory’ (‘Timor-Leste “Seasonal Workers” depart for
the Northern Territory’), 30 April 2014 (with English translation) [Annex 59].
16
Government of Timor-Leste, Banco Central de Timor–Leste, Petroleum Fund of Timor-Leste:
Quarterly Report, Vol. 10 Issue XXIV, 31 March 2014 (accessed at <http://www.banco
central.tl/Download/Publications/Quarterly_Report35_en.pdf> on 20 July 2014).
6Worker Program, which facilitates employment in Australia for individuals from
15
Timor-Leste.
1.12. The two States have long had different views with regard to maritime
boundary delimitation in the Timo r Sea. Such differences are common to States
with overlapping maritime claims. Through a series of bilateral negotiations,
Australia and Timor-Leste have reached a constructive compromise – embodied
in the Timor Sea treaty regime – which provides for the deferral of permanent
boundary delimitation in favour of the joint development of the petroleum
resources of the Timor Sea, for the benefit of both States. As a result of joint
cooperation under this arrangement and prudent decisions by the Government of
16
Timor-Leste, Timor-Leste has a Petroleum Fund worth US D15.7 billion.
Australia remains committed to the Timor Sea treaty regime negotiated between
the Parties, which enables the joint development of Timor Sea resources in the
near term.
1.13. However, the Timor Sea treaty regime, and the current Arbitration arising
under that regime, do not raise legal issues for determination by the Court. In this
respect, the considerable attention which Timor-Leste devotes to discussion of this
regime and the Arbitration in its Memorial is irrelevant. In any case,
Timor-Leste’s submissions regarding the Timor Sea treaty regime and the
Arbitration are selective and incomplete, and repeat as fact allegations and
assertions which have not been proved. To the extent that it is necessary to
15Government of Timor-Leste, Secretariat of State for Vocational Training Policy and
Employment, Seasonal Worker Program 2012-2014, 30 April 2014 (with English translation)
[Annex 58]; Australian Government Press Release, Australian Embassy in Dili, ‘“Seasonal
Workers” husi Timor-Leste ba Northern Territory’ (‘Timor-Leste “Seasonal Workers” depart for
the Northern Territory’), 30 April 2014 (with English translation) [Annex 59].
16
Government of Timor-Leste, Banco Central de Timor–Leste, Petroleum Fund of Timor-Leste:
Quarterly Report, Vol. 10 Issue XXIV, 31 March 2014 (accessed at <http://www.banco
central.tl/Download/Publications/Quarterly_Report35_en.pdf> on 20 July 2014). principle of inviolability which would extend to the Material s in the manner
asserted by Timor-Leste. Finally, in the absence of a relevant proceeding against
Timor-Leste or an agent of Timor -Leste, or another form of relevant process
where immunity can be pleaded as a procedural bar, the law of State immunity is
not applicable.
1.19. Chapter 6 concludes this Counter -Memorial by dealing with the remedies
sought and is followed by Australia’s final Submissions.
1.20. The Appendix responds to the submissions in Timor-Leste’s Memorial
regarding the Timor Sea treaty regime and the Arbitration.
1.21. This Counter-Memorial is supported by a number of Annexes containing
much of the evidence and other supporting material upon which Australia relies.
Those Annexes include internation al instruments, books, journal and media
articles, transcripts, legislation, international and domestic case law and
documents from the Australian and Timorese Governments.
8principle of inviolability which would extend to the Material s in the manner
asserted by Timor-Leste. Finally, in the absence of a relevant proceeding against
Timor-Leste or an agent of Timor -Leste, or another form of relevant process
where immunity can be pleaded as a procedural bar, the law of State immunity is
not applicable.
1.19. Chapter 6 concludes this Counter -Memorial by dealing with the remedies
sought and is followed by Australia’s final Submissions.
1.20. The Appendix responds to the submissions in Timor-Leste’s Memorial
regarding the Timor Sea treaty regime and the Arbitration.
1.21. This Counter-Memorial is supported by a number of Annexes containing
much of the evidence and other supporting material upon which Australia relies.
Those Annexes include internation al instruments, books, journal and media
articles, transcripts, legislation, international and domestic case law and
documents from the Australian and Timorese Governments. Section I. Australia’s right to territorial sovereignty is a primary
consideration
A. A USTRALIA ENJOYS SOVEREIGNTY OVER ITS TERRITORY AND THE FREEDOM TO
EXERCISE JURISDICTION OVER ITS NATIONALS THEREIN
2.4. Australia, as a sovereign State, enjoys the rights inherent in full
sovereignty, including sovereignty over its territory. Territorial sovereignty is the
basis of States’ jurisdiction and the source of their freedom to prescribe,
adjudicate and enforce laws within their territory and with respect to persons
therein (subject to specific and agreed exceptions). A key element of Australia’s
territorial sovereignty (as with all other States) is the right to exercise enforcement
jurisdiction within its territory. More specifically, Australia has the right to
exercise jurisdiction with respect to criminal or national security matters and at
premises and with respect to persons located in Australian territory.
2.5. Australia’s enjoyment of territorial sovereignty is consistent with , indeed
integral to, the principle of sovereign equality. The principle is canonically stated
in Article 2(1) of the Charter of the United Nations 17 and is a foundational
principle of international law, vital in relationships between States. 18 A number of
elements – in the words of the Court, ‘ corollar[ies] of sovereign equality’ 19 – are
elaborated in the Declaration on Principles of International Law concerning
Friendly Relations and Co -operation among States in accordance with the
17Charter of the United Nations, San Francisco, 26 June 1945, 1 UNTS XVI (entered into force 24
October 1945), Article 2(1).
18Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J.
Reports 2012, 99 at [57].
19
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, 14 at [202].
10Section I. Australia’s right to territorial sovereignty is a primary
consideration
A. A USTRALIA ENJOYS SOVEREIGNTY OVER ITS TERRITORY AND THE FREEDOM TO
EXERCISE JURISDICTION OVER ITS NATIONALS THEREIN
2.4. Australia, as a sovereign State, enjoys the rights inherent in full
sovereignty, including sovereignty over its territory. Territorial sovereignty is the
basis of States’ jurisdiction and the source of their freedom to prescribe,
adjudicate and enforce laws within their territory and with respect to persons
therein (subject to specific and agreed exceptions). A key element of Australia’s
territorial sovereignty (as with all other States) is the right to exercise enforcement
jurisdiction within its territory. More specifically, Australia has the right to
exercise jurisdiction with respect to criminal or national security matters and at
premises and with respect to persons located in Australian territory.
2.5. Australia’s enjoyment of territorial sovereignty is consistent with , indeed
integral to, the principle of sovereign equality. The principle is canonically stated
in Article 2(1) of the Charter of the United Nations 17 and is a foundational
principle of international law, vital in relationships between States. 18 A number of
elements – in the words of the Court, ‘ corollar[ies] of sovereign equality’ 19 – are
elaborated in the Declaration on Principles of International Law concerning
Friendly Relations and Co -operation among States in accordance with the
17Charter of the United Nations, San Francisco, 26 June 1945, 1 UNTS XVI (entered into force 24
October 1945), Article 2(1).
18Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J.
Reports 2012, 99 at [57].
19
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, 14 at [202]. Where a foreign State is conducting activities on a forum State’s territory, the
rights of the former do not prevail over the territorial sovereignty of the latter
unless a specific and express limitation on that territorial sovereignty applies.
Such a limitation operates as lex specialis, consistent with the maxim lex specialis
derogat legi generali (‘a specific law prevails over a general law’) . In
determining the scope and application of any such exceptions to territorial
sovereignty, a cautious approach should be adopted. 24 This is necessary to ensure
that a forum State’s rights, including its right to territorial sovereignty, are
adequately taken into account in resolving competing claims, and to avoid
imposing limitations that would unduly restrict a forum State’s capacity to address
its legitimate security concerns within its territory and in relation to its nationals.
2.8. A key example is the international law which accords certain limited
immunities to the activities of a foreign State acting within the borders of a forum
State. By virtue of the law of State immunity (which itself derives from
sovereignty and the principle of sovereign equality), certain actions of foreign
States and their officials are ex cluded from the jurisdiction of the courts of the
forum State, notwithstanding the principle of territorial jurisdiction.
This approach is reflected in the Court’s decision in Jurisdictional Immunities of
the State (Germany v. Italy: Greece intervening) , in which the Court took into
account the territorial sovereignt y of the forum State (Italy) and then applied the
specific limitations set out in the international law of State immunity by way of
exception to that sovereignty. As the Court said:
the rule of State immunity occupies an important place in international l aw and
international relations. It derives from the principle of sovereign equality of
States, which, as Article 2, paragraph 1, of the Charter of the United Nations
makes clear, is one of the fundamental principles of the international legal order.
This p rinciple has to be viewed together with the principle that each State
possesses sovereignty over its own territory and that there flows from that
sovereignty the jurisdiction of the State over events and persons within that
24H Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ in E Lauterpacht
(ed.), International Law (Cambridge University Press, 1977), 325-326.
12Where a foreign State is conducting activities on a forum State’s territory, the
rights of the former do not prevail over the territorial sovereignty of the latter
unless a specific and express limitation on that territorial sovereignty applies.
Such a limitation operates as lex specialis, consistent with the maxim lex specialis
derogat legi generali (‘a specific law prevails over a general law’) . In
determining the scope and application of any such exceptions to territorial
sovereignty, a cautious approach should be adopted. 24 This is necessary to ensure
that a forum State’s rights, including its right to territorial sovereignty, are
adequately taken into account in resolving competing claims, and to avoid
imposing limitations that would unduly restrict a forum State’s capacity to address
its legitimate security concerns within its territory and in relation to its nationals.
2.8. A key example is the international law which accords certain limited
immunities to the activities of a foreign State acting within the borders of a forum
State. By virtue of the law of State immunity (which itself derives from
sovereignty and the principle of sovereign equality), certain actions of foreign
States and their officials are ex cluded from the jurisdiction of the courts of the
forum State, notwithstanding the principle of territorial jurisdiction.
This approach is reflected in the Court’s decision in Jurisdictional Immunities of
the State (Germany v. Italy: Greece intervening) , in which the Court took into
account the territorial sovereignt y of the forum State (Italy) and then applied the
specific limitations set out in the international law of State immunity by way of
exception to that sovereignty. As the Court said:
the rule of State immunity occupies an important place in international l aw and
international relations. It derives from the principle of sovereign equality of
States, which, as Article 2, paragraph 1, of the Charter of the United Nations
makes clear, is one of the fundamental principles of the international legal order.
This p rinciple has to be viewed together with the principle that each State
possesses sovereignty over its own territory and that there flows from that
sovereignty the jurisdiction of the State over events and persons within that
24H Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ in E Lauterpacht
(ed.), International Law (Cambridge University Press, 1977), 325-326. Section II. Laws protecting national security are a necessary and
accepted exercise of territorial sovereignty
A. T HE PROTECTION OF NATIONAL SECURITY IS A FUNDAMENTAL EXERCISE OF
TERRITORIALSOVEREIGNTY
2.11. The protection of national security is a fundamental element of territorial
sovereignty, and measures taken by States in their territory to protect their
national security are a recognised and legitimate exercise of that sovereignty. The
importance that S tates place on preserving the right to take such measures is
reflected in wide-ranging practice whereby treaty obligations under international
law are framed with appropriate regard for States’ legitimate national security
rights and interests.
2.12. Such provisions are found in treaties addressing areas as diverse as trade,
human rights, international security and crime co-operation. For example:
(1) the General Agreement on Tariffs and Trade 1994 explicitly preserves
the right of a State Part y to take ‘any a ction which it considers
28
necessary for the protection of its essential security interests’
(2) under the United Nations Convention Against Corruption 2003,
mutual legal assistance can be refused by a State Party where it
‘considers that execution of the reque st is likely to prejudice its
29
sovereignty, security, ordre public or other essential interests’
28General Agreement on Tariffs and Trade, Geneva, 15 April 1994, 1867 UNTS 187 (entered into
force 1 January 1995), Article XXI.
29United Nations Convention Against Corruption, New York, 31 October 2003, 2349 UNTS 41
(entered into force 14 December 2005), Article 46(21)(b).
14Section II. Laws protecting national security are a necessary and
accepted exercise of territorial sovereignty
A. T HE PROTECTION OF NATIONAL SECURITY IS A FUNDAMENTAL EXERCISE OF
TERRITORIALSOVEREIGNTY
2.11. The protection of national security is a fundamental element of territorial
sovereignty, and measures taken by States in their territory to protect their
national security are a recognised and legitimate exercise of that sovereignty. The
importance that S tates place on preserving the right to take such measures is
reflected in wide-ranging practice whereby treaty obligations under international
law are framed with appropriate regard for States’ legitimate national security
rights and interests.
2.12. Such provisions are found in treaties addressing areas as diverse as trade,
human rights, international security and crime co-operation. For example:
(1) the General Agreement on Tariffs and Trade 1994 explicitly preserves
the right of a State Part y to take ‘any a ction which it considers
28
necessary for the protection of its essential security interests’
(2) under the United Nations Convention Against Corruption 2003,
mutual legal assistance can be refused by a State Party where it
‘considers that execution of the reque st is likely to prejudice its
29
sovereignty, security, ordre public or other essential interests’
28General Agreement on Tariffs and Trade, Geneva, 15 April 1994, 1867 UNTS 187 (entered into
force 1 January 1995), Article XXI.
29United Nations Convention Against Corruption, New York, 31 October 2003, 2349 UNTS 41
(entered into force 14 December 2005), Article 46(21)(b). 2.14. Australia exercises this aspect of territorial sovereignty through
democratically enacted national security laws, which have a legitimate and closely
defined content that reflects Australia’s national security objectives. The concept
of ‘security’ is defined in section 4 of the Australian Security Intelligence
Organisation Act 1979 (Cth) (‘the ASIO Act’), which establishes the functions
and powers of ASIO. In that Act, the term ‘security’ refers to the protections
necessary for Australia and its people to remain safe from threats such as
sabotage, politically-motivated violence, attacks on Australia’s defence system,
and acts of foreign interference. 33 The effect of th is definition is to establish a
tightly-defined term addressing a limited number of key risks, which both guide
and limit the activities of Australia’s domestic intelligence service. Together with
the circumscribed powers provided und er the ASIO Act, this helps to ensure that
ASIO only takes actions (such as the execution of search warrants) where
necessary and in furtherance of legitimate national security objectives, and that
such actions are subject to appropriate oversight and accountability under the
Constitution.
B. L AWS PROTECTING NATIONAL SECURITY ARE STANDARD PRACTICE AMONG
STATES
2.15. The legal framework underpinning Australia’s national security includes
both the legislated establishment of intelligence agencies (including ASIO and the
Australian Se cret Intelligence Service (‘ASIS’)), and laws which prohibit the
unauthorised disclosure of State secrets. Timor-Leste, likewise, has an established
national intelligence service and has enacted law s prohibiting the disclosure of
national security information. 34 The methods of protecting national security
33
Australian Security Intelligence Organisation Act 1979 (Cth), s 4 [Annex 37].
34Decree Law No. 3/2009 (National Intelligence Service) (Timor-Leste), Articles 1 and 13
[Annex 47]; Decree Law No. 19/2009 (Penal Code of the Democratic Republic of Timor-Leste)
(Timor-Leste), Article 200 [Annex 48].
162.14. Australia exercises this aspect of territorial sovereignty through
democratically enacted national security laws, which have a legitimate and closely
defined content that reflects Australia’s national security objectives. The concept
of ‘security’ is defined in section 4 of the Australian Security Intelligence
Organisation Act 1979 (Cth) (‘the ASIO Act’), which establishes the functions
and powers of ASIO. In that Act, the term ‘security’ refers to the protections
necessary for Australia and its people to remain safe from threats such as
sabotage, politically-motivated violence, attacks on Australia’s defence system,
and acts of foreign interference. 33 The effect of th is definition is to establish a
tightly-defined term addressing a limited number of key risks, which both guide
and limit the activities of Australia’s domestic intelligence service. Together with
the circumscribed powers provided und er the ASIO Act, this helps to ensure that
ASIO only takes actions (such as the execution of search warrants) where
necessary and in furtherance of legitimate national security objectives, and that
such actions are subject to appropriate oversight and accountability under the
Constitution.
B. L AWS PROTECTING NATIONAL SECURITY ARE STANDARD PRACTICE AMONG
STATES
2.15. The legal framework underpinning Australia’s national security includes
both the legislated establishment of intelligence agencies (including ASIO and the
Australian Se cret Intelligence Service (‘ASIS’)), and laws which prohibit the
unauthorised disclosure of State secrets. Timor-Leste, likewise, has an established
national intelligence service and has enacted law s prohibiting the disclosure of
national security information. 34 The methods of protecting national security
33
Australian Security Intelligence Organisation Act 1979 (Cth), s 4 [Annex 37].
34Decree Law No. 3/2009 (National Intelligence Service) (Timor-Leste), Articles 1 and 13
[Annex 47]; Decree Law No. 19/2009 (Penal Code of the Democratic Republic of Timor-Leste)
(Timor-Leste), Article 200 [Annex 48]. subject to limited exceptions. Section 39 applies where: a person communicates
information that has been prepared by or on behalf of ASIS; that information is
connected with either the functions of ASIS or the performance of its functions;
and that person has obtained that information through working for ASIS or by
entering into a contract, agreement or arrangement with ASIS. 37 Section 41 of the
Act criminalises the publication of the identity of ASIS staff . First, it prohibits a
person from identifying him/herself or another person as being or having been an
ASIS officer, subject to limited exceptions (for example, the Director -General of
ASIS is a public office holder ). Second, section 41 prohibits a per son from
making public any information from which the identity of an ASIS officer could
reasonably be inferred, subject to limited exceptions (such as consent by the
Director-General). 38
2.20. Section 91.1 of the Criminal Code Act 1995 (Cth) establishes additional
offences in relation to the communication of information or records to another
State about the ‘operations, capabilities and technologies of, and methods and
39
sources used by, the country’s intelligence or security agencies’. Finally,
section 70 of the Crimes Act 1914 (Cth) makes the unauthorised disclosure of
official information by a current or former Australia Government official a
40
criminal offence.
2.21. Like other States, Australia investigates suspected breaches of its crim inal
laws and takes steps to prevent further breaches from occurring. Any decision to
37
Intelligence Services Act 2001 (Cth), s 39 [Annex 38].
38Intelligence Services Act 2001 (Cth), s 41 [Annex 38].
39Criminal Code Act 1995 (Cth), Schedule, s 91.1 [Annex 39].
40
Crimes Act 1914 (Cth), s 70 [Annex 40].
18subject to limited exceptions. Section 39 applies where: a person communicates
information that has been prepared by or on behalf of ASIS; that information is
connected with either the functions of ASIS or the performance of its functions;
and that person has obtained that information through working for ASIS or by
entering into a contract, agreement or arrangement with ASIS. 37 Section 41 of the
Act criminalises the publication of the identity of ASIS staff . First, it prohibits a
person from identifying him/herself or another person as being or having been an
ASIS officer, subject to limited exceptions (for example, the Director -General of
ASIS is a public office holder ). Second, section 41 prohibits a per son from
making public any information from which the identity of an ASIS officer could
reasonably be inferred, subject to limited exceptions (such as consent by the
Director-General). 38
2.20. Section 91.1 of the Criminal Code Act 1995 (Cth) establishes additional
offences in relation to the communication of information or records to another
State about the ‘operations, capabilities and technologies of, and methods and
39
sources used by, the country’s intelligence or security agencies’. Finally,
section 70 of the Crimes Act 1914 (Cth) makes the unauthorised disclosure of
official information by a current or former Australia Government official a
40
criminal offence.
2.21. Like other States, Australia investigates suspected breaches of its crim inal
laws and takes steps to prevent further breaches from occurring. Any decision to
37
Intelligence Services Act 2001 (Cth), s 39 [Annex 38].
38Intelligence Services Act 2001 (Cth), s 41 [Annex 38].
39Criminal Code Act 1995 (Cth), Schedule, s 91.1 [Annex 39].
40
Crimes Act 1914 (Cth), s 70 [Annex 40]. ‘strives to safeguard national independence, national interests, external security
45
and internal security’.
2.25. Moreover, Timor-Leste has enacted criminal laws prohibiting the
disclosure of State secrets. These include criminal laws of general application that
prohibit the unauthorised disclosure of national security information, similar to
those adopted by Australia. 46
International practice with respect to national security
2.26. The maintenance of intelligence services and the criminalisation of the
disclosure of State secrets is widespread practice among States.
2.27. First, many other States have security intelligence services with similar
functions to ASIO, ASIS and the National Intelligence Service:
(1) Many States have an intelligence agency that is specifically
responsible for security intelligence, such as ASIO. A review of
legislation in other States demonstrates that ASIO operates
consistently with widespread State practice, and under tight legal
control. 47
(2) Many States also have an agency that is specifically responsible for
48
intelligence overseas, such as ASIS.
(3) Finally, some States have a single intelligence service covering both
domestic securi ty and foreign intelligence, like the National
Intelligence Service. 49
45
His Excellency the Prime Minister Kay Rala Xanana Gusmão, ‘Address on the Occasion of the
Seminar on Intelligence’, Dili, 2 July 2009, 3.
46
Decree Law No. 19/2009 (Penal Code of the Democratic Republic of Timor-Leste)
(Timor-Leste), Article 200 [Annex 48].
47Table: Extracts from National Legislation Establishing Intelligence Organisations [Annex 49].
48Table: Extracts from National Legislation Establishing Intelligence Organisations [Annex 49].
20‘strives to safeguard national independence, national interests, external security
45
and internal security’.
2.25. Moreover, Timor-Leste has enacted criminal laws prohibiting the
disclosure of State secrets. These include criminal laws of general application that
prohibit the unauthorised disclosure of national security information, similar to
those adopted by Australia. 46
International practice with respect to national security
2.26. The maintenance of intelligence services and the criminalisation of the
disclosure of State secrets is widespread practice among States.
2.27. First, many other States have security intelligence services with similar
functions to ASIO, ASIS and the National Intelligence Service:
(1) Many States have an intelligence agency that is specifically
responsible for security intelligence, such as ASIO. A review of
legislation in other States demonstrates that ASIO operates
consistently with widespread State practice, and under tight legal
control.47
(2) Many States also have an agency that is specifically responsible for
48
intelligence overseas, such as ASIS.
(3) Finally, some States have a single intelligence service covering both
domestic securi ty and foreign intelligence, like the National
Intelligence Service. 49
45
His Excellency the Prime Minister Kay Rala Xanana Gusmão, ‘Address on the Occasion of the
Seminar on Intelligence’, Dili, 2 July 2009, 3.
46
Decree Law No. 19/2009 (Penal Code of the Democratic Republic of Timor-Leste)
(Timor-Leste), Article 200 [Annex 48].
47Table: Extracts from National Legislation Establishing Intelligence Organisations [Annex 49].
48Table: Extracts from National Legislation Establishing Intelligence Organisations [Annex 49]. subject of this dispute were taken consistent with Australia’s legitimate right to
exercise territorial sovereignty, and pursuant to this established domestic legal
framework.
2.31. Against this background, Australia respectfully submits that the Court
should take a very cautious approach in recognising any new limitations on a
forum State’s right t o exercise territorial sovereignty, particularly with respect to
the protection of its national security interests. Recognising a limitation on such
exercise of territorial sovereignty where non e currently exists ( by increasing the
generic rights assigned to foreign States in the territory of forum States) could
have serious ramifications for the certainty and stability of international law, and
create uncertainty about the extent to which forum States may lawfully take action
in the public interest to protect national security and human lives.
22subject of this dispute were taken consistent with Australia’s legitimate right to
exercise territorial sovereignty, and pursuant to this established domestic legal
framework.
2.31. Against this background, Australia respectfully submits that the Court
should take a very cautious approach in recognising any new limitations on a
forum State’s right t o exercise territorial sovereignty, particularly with respect to
the protection of its national security interests. Recognising a limitation on such
exercise of territorial sovereignty where non e currently exists ( by increasing the
generic rights assigned to foreign States in the territory of forum States) could
have serious ramifications for the certainty and stability of international law, and
create uncertainty about the extent to which forum States may lawfully take action
in the public interest to protect national security and human lives. A. ‘K’ AND M R C OLLAERY DIVULGED ,WITHOUT AUTHORISATION ,A USTRALIAN
NATIONAL SECURITY INFORMATION
3.4. By Timor-Leste’s own statements, the circumstances ultimately leading to
these proceedings began in 2008 when ‘K’, a former employee of ASIS, contacted
the Inspector-General of Intelligence and Security about an employment dispute
52
with ASIS. ‘K’ was dissatisfied with the outcome of a promotion selection
process. The Inspector-General advised ‘K’ of several options by which he could
53
seek to have his grievance resolved, and ‘K’ asked the Inspector-General to
organise for his solicitor, Mr Collaery, to be briefed in order to assist with
54
formulating his complaint.
3.5. In 1987 ‘K’, a s an Australian Government official requiring access to
information held by ASIS, undertook to keep such information confidential as a
condition of that access. 55 Later, on becoming an officer of ASIS, ‘K’ had of
course undertaken to keep certain information confidential, both during his
employment with ASIS and subsequent to that employment. He gave this
undertaking in writing and on multiple occasions : in 1999, upon commencement
of his employment with ASIS ; 56 in 2002, following the enactment of additional
disclosure offences in sections 39 and 41 of the Intelligence Services Act 2001 ; 57
52Timor-Leste, Memorial, footnote 58.
53
Letter from Mr Ian Carnell, Inspector-General of Intelligence and Security of Australia, to ‘K’,
6 March 2008 [Annex 75].
54Letter from ‘K’ to Mr Ian Carnell, Inspector-General of Intelligence and Security of Australia,
12 May 2008 [Annex 76].
55Armed Services and Government Employees Secrecy Declaration signed by ‘K’, 27 May 1987
[redacted] [Annex 77].
56Secrecy Agreement between Director-General of ASIS and ‘K’, made on 29 November 1999
and signed by ‘K’ on 1 December 1999 [redacted] [Annex 78].
57
Secrecy Agreement between Director-General of ASIS and ‘K’, made on 7 January 2002 and
signed by ‘K’ on 4 January 2002 [redacted] [Annex 79].
24A. ‘K’ AND M R C OLLAERY DIVULGED ,WITHOUT AUTHORISATION , A USTRALIAN
NATIONAL SECURITY INFORMATION
3.4. By Timor-Leste’s own statements, the circumstances ultimately leading to
these proceedings began in 2008 when ‘K’, a former employee of ASIS, contacted
the Inspector-General of Intelligence and Security about an employment dispute
52
with ASIS. ‘K’ was dissatisfied with the outcome of a promotion selection
process. The Inspector-General advised ‘K’ of several options by which he could
53
seek to have his grievance resolved, and ‘K’ asked the Inspector-General to
organise for his solicitor, Mr Collaery, to be briefed in order to assist with
54
formulating his complaint.
3.5. In 1987 ‘K’, a s an Australian Government official requiring access to
information held by ASIS, undertook to keep such information confidential as a
condition of that access. 55 Later, on becoming an officer of ASIS, ‘K’ had of
course undertaken to keep certain information confidential, both during his
employment with ASIS and subsequent to that employment. He gave this
undertaking in writing and on multiple occasions : in 1999, upon commencement
of his employment with ASIS ; 56 in 2002, following the enactment of additional
disclosure offences in sections 39 and 41 of the Intelligence Services Act 2001 ; 57
52Timor-Leste, Memorial, footnote 58.
53
Letter from Mr Ian Carnell, Inspector-General of Intelligence and Security of Australia, to ‘K’,
6 March 2008 [Annex 75].
54Letter from ‘K’ to Mr Ian Carnell, Inspector-General of Intelligence and Security of Australia,
12 May 2008 [Annex 76].
55Armed Services and Government Employees Secrecy Declaration signed by ‘K’, 27 May 1987
[redacted] [Annex 77].
56Secrecy Agreement between Director-General of ASIS and ‘K’, made on 29 November 1999
and signed by ‘K’ on 1 December 1999 [redacted] [Annex 78].
57
Secrecy Agreement between Director-General of ASIS and ‘K’, made on 7 January 2002 and
signed by ‘K’ on 4 January 2002 [redacted] [Annex 79]. 3.8. It has not been made clear by Timor-Leste or Mr Collaery why or how this
information was disclosed by ‘K’, or came to be shared with Timor-Leste.
Whether Timor-Leste held out inducements to ‘K’ or Mr Collaery, or both, is
unknown. What is known is that ‘K’ has been a client of Mr Collaery since at
least 2008, 62 and Timor-Leste has been a client of Mr Collaery since at least
2010. 63 Timor- Leste has not disputed that such unauthorised and apparently
unlawful disclosures were made by ‘K’ and Mr Collaery and subsequently
received by Timor-Leste.
3.9. Timor-Leste’s Memorial indicates t hat Mr Collaery has acted for
Timor-Leste for a number of years , including with respect to the Arbitration,
where Mr Collaery was e ngaged as counsel and Collaery L awyers as
64
Timor-Leste’s solicitors. For the sake of completeness, it is relevant to note that
on 7 July 2014, Timor-Leste advised of changes to the composition of its
representation in the Arbitration. That notified representation no longer includes
65
Mr Collaery, nor any member of Collaery Lawyers.
Timor’,7.30, Australian Broadcasting Corporation (4 December 2013) (accessed at
<http://www.abc.net.au/news/2013-12-04/new-details-emerge-in-claims-of-s…-
east/5135404> on 20 July 2014); T Allard, ‘East Timor claims it knows which Australian spies
bugged its offices’, Sydney Morning Herald (10 December 2013) (accessed at
<http://www.smh.com.au/federal-politics/political-news/east-timor-claims…-
australian-spies-bugged-its-offices-20131209-2z1tk.html> on 20 July 2014); ‘Raided East Timor
Lawyer calls for Inquiry’, Australian Associated Press (4 December 2013) (accessed at
<http://www.news.com.au/national/breaking-news/raided-east-timor-lawyer-…-
inquiry/story-e6frfku9-1226774620861> on 20 July 2014); P Lloyd, ‘ASIO raided office of lawyer
representing East Timor in spying case’, ABC News, Australian Broadcasting Corporation
(3 December 2013) (accessed at <http://www.abc.net.au/news/2013-12-03/asio-raided-lawyer-
representing-east-timor-in-spying-case/5132486> on 20 July 2014).
62Letter from ‘K’ to Mr Ian Carnell, Inspector-General of Intelligence and Security of Australia,
12 May 2008 [Annex 76].
63Extract from Timor-Leste E-Procurement Portal showing list of contracts awarded to Bernard
Collaery for ‘Consultancy Services’ since 2010 [Annex 72].
64Timor-Leste, Memorial, [4.4].
65
Letter from Ambassador for Timor-Leste to the United Kingdom, Joaquim da Fonseca, to Legal
Counsel to the Permanent Court of Arbitration Garth Schofield, 7 July 2014 [Annex 82].
263.8. It has not been made clear by Timor-Leste or Mr Collaery why or how this
information was disclosed by ‘K’, or came to be shared with Timor-Leste.
Whether Timor-Leste held out inducements to ‘K’ or Mr Collaery, or both, is
unknown. What is known is that ‘K’ has been a client of Mr Collaery since at
least 2008, 62 and Timor-Leste has been a client of Mr Collaery since at least
2010. 63 Timor- Leste has not disputed that such unauthorised and apparently
unlawful disclosures were made by ‘K’ and Mr Collaery and subsequently
received by Timor-Leste.
3.9. Timor-Leste’s Memorial indicates t hat Mr Collaery has acted for
Timor-Leste for a number of years , including with respect to the Arbitration,
where Mr Collaery was e ngaged as counsel and Collaery L awyers as
64
Timor-Leste’s solicitors. For the sake of completeness, it is relevant to note that
on 7 July 2014, Timor-Leste advised of changes to the composition of its
representation in the Arbitration. That notified representation no longer includes
65
Mr Collaery, nor any member of Collaery Lawyers.
Timor’,7.30, Australian Broadcasting Corporation (4 December 2013) (accessed at
<http://www.abc.net.au/news/2013-12-04/new-details-emerge-in-claims-of-s…-
east/5135404> on 20 July 2014); T Allard, ‘East Timor claims it knows which Australian spies
bugged its offices’, Sydney Morning Herald (10 December 2013) (accessed at
<http://www.smh.com.au/federal-politics/political-news/east-timor-claims…-
australian-spies-bugged-its-offices-20131209-2z1tk.html> on 20 July 2014); ‘Raided East Timor
Lawyer calls for Inquiry’, Australian Associated Press (4 December 2013) (accessed at
<http://www.news.com.au/national/breaking-news/raided-east-timor-lawyer-…-
inquiry/story-e6frfku9-1226774620861> on 20 July 2014); P Lloyd, ‘ASIO raided office of lawyer
representing East Timor in spying case’, ABC News, Australian Broadcasting Corporation
(3 December 2013) (accessed at <http://www.abc.net.au/news/2013-12-03/asio-raided-lawyer-
representing-east-timor-in-spying-case/5132486> on 20 July 2014).
62Letter from ‘K’ to Mr Ian Carnell, Inspector-General of Intelligence and Security of Australia,
12 May 2008 [Annex 76].
63Extract from Timor-Leste E-Procurement Portal showing list of contracts awarded to Bernard
Collaery for ‘Consultancy Services’ since 2010 [Annex 72].
64Timor-Leste, Memorial, [4.4].
65
Letter from Ambassador for Timor-Leste to the United Kingdom, Joaquim da Fonseca, to Legal
Counsel to the Permanent Court of Arbitration Garth Schofield, 7 July 2014 [Annex 82]. ongoing risk to those individuals, and to prejudice their ability to be engaged as
Australian government officials in any capacity. Equally, it is very difficult to
correct the publication of erroneous information wh ich incorrectly asserts that
certain operations were undertaken or that certain persons are associated with
intelligence work.
3.13. The threat of serious harm to individuals is not remote. If a person
working overseas in an official capacity for Australia is incorrectly identified (or
identifiable) as an intelligence officer, that person will be at risk. There are many
examples of intelligence officers or those with links to them having been killed
69
following the disclosure of their identity, including CIA officials Richard Welch
70
and William Buckley, and individuals killed after their intelligence activities in
71
the former USSR were disclosed . There are also instances of individuals being
arrested or executed on the accusation that they were conducting intelligence
72
activities in a foreign State. The risks are both specific to individuals who are
identified or made identifiable, and general to the categories of people identified.
At a minimum, disclosure of the confidential information puts at risk ‘K’ and any
other individuals identified as Au stralian intelligence officers (whether or not the
identification is correct).
3.14. Moreover, disclosure of even small amounts of classified information can
have serious consequences for individuals . The Australian Law Reform
69Central Intelligence Agency, ‘Remembering CIA's Heroes: Richard S. Welch’, 29 June 2011
(accessed at <https://www.cia.gov/news-information/featured-story-archive/2011-featur…-
archive/heroes-richard-s-welch.html> on 20 July 2014).
70
Central Intelligence Agency, ‘CIA Remembers Agency Hero William Buckley’, 14 March 2014
(accessed at <https://www.cia.gov/news-information/press-releases-statements/2014-pre…-
releases-statements/cia-remembers-agency-hero-william-buckley.html> on 20 July 2014).
71
Federal Bureau of Investigation, ‘Famous Cases & Criminals – Aldrich Hazen Ames’ (accessed
at <http://www.fbi.gov/about-us/history/famous-cases/aldrich-hazen-ames> on 20 July 2014).
72For example, the execution of two individuals in Iran: Y Katz, ‘Iran hangs two spies for spying
for Israel, US’, The Jerusalem Post, 19 May 2013 [Annex 61].
28ongoing risk to those individuals, and to prejudice their ability to be engaged as
Australian government officials in any capacity. Equally, it is very difficult to
correct the publication of erroneous information wh ich incorrectly asserts that
certain operations were undertaken or that certain persons are associated with
intelligence work.
3.13. The threat of serious harm to individuals is not remote. If a person
working overseas in an official capacity for Australia is incorrectly identified (or
identifiable) as an intelligence officer, that person will be at risk. There are many
examples of intelligence officers or those with links to them having been killed
69
following the disclosure of their identity, including CIA officials Richard Welch
70
and William Buckley, and individuals killed after their intelligence activities in
71
the former USSR were disclosed . There are also instances of individuals being
arrested or executed on the accusation that they were conducting intelligence
72
activities in a foreign State. The risks are both specific to individuals who are
identified or made identifiable, and general to the categories of people identified.
At a minimum, disclosure of the confidential information puts at risk ‘K’ and any
other individuals identified as Au stralian intelligence officers (whether or not the
identification is correct).
3.14. Moreover, disclosure of even small amounts of classified information can
have serious consequences for individuals . The Australian Law Reform
69Central Intelligence Agency, ‘Remembering CIA's Heroes: Richard S. Welch’, 29 June 2011
(accessed at <https://www.cia.gov/news-information/featured-story-archive/2011-featur…-
archive/heroes-richard-s-welch.html> on 20 July 2014).
70
Central Intelligence Agency, ‘CIA Remembers Agency Hero William Buckley’, 14 March 2014
(accessed at <https://www.cia.gov/news-information/press-releases-statements/2014-pre…-
releases-statements/cia-remembers-agency-hero-william-buckley.html> on 20 July 2014).
71
Federal Bureau of Investigation, ‘Famous Cases & Criminals – Aldrich Hazen Ames’ (accessed
at <http://www.fbi.gov/about-us/history/famous-cases/aldrich-hazen-ames> on 20 July 2014).
72For example, the execution of two individuals in Iran: Y Katz, ‘Iran hangs two spies for spying
for Israel, US’, The Jerusalem Post, 19 May 2013 [Annex 61]. to Australia’s understanding of the tactics, modus operandi, agents, relationships
and activities of groups and individuals which pose a threat to Australia’s national
security and to international peace and security, and the ability to share such
intelligence is critical to the national security of each State involved. However,
the exchange of intelligence information between States is predicated upon mutual
confidence in the ability of each country to protect sensitive information.
Accordingly, maintaining the confidence of other States in Australia’s ability to
keep intelligence information confidential is fundamental to the functioning of
Australia’s intelligence-sharing relationships, and to Australia’s national security.
3.17. These risks were summed up by the United Kingdom’s House of Lords in
Regina v. Shayler when the court said:
There is much domestic authority pointing to the need for a security or
intelligence service to be secure. The commodity in which such a service deals
is secret and confidential information. If the service is not secure those working
against the interest s of the state, whether terrorists, other criminals or foreign
agents, will be alerted, and able to take evasive action; its own agents may be
unmasked; members of the service will feel unable to rely on each other; those
upon whom the service relies as so urces of information will feel unable to rely
on their identity remaining secret; an77foreign countries will decline to entrust
their own secrets to an insecure recipient.
3.18. The fact that the disclosure of even seemingly minor, inconsequential
information can have grave consequences was clearly stated by the English courts
in the ‘Spycatcher’ case:
In an intelligence or counte-intelligence context, there is great difficulty in
knowing what is and what is not trivial. Intelligence and count-intelligence
operations have much in common with a jigsaw puzzle. A single piece of
information viewed in isolation may indeed appear trivial. Viewed in the context
of other seeming trivia, it 78y remain trivial or it may be of vast significance as
illuminating the entire picture.
77
Regina v. Shayler [2002] 2 WLR 754, [25] [Annex 4].
78
Attorney General v. Guardian Newspapers Ltd and others (No. 2) [1988] 2 WLR 805, [870F]
[Annex 5].
30to Australia’s understanding of the tactics, modus operandi, agents, relationships
and activities of groups and individuals which pose a threat to Australia’s national
security and to international peace and security, and the ability to share such
intelligence is critical to the national security of each State involved. However,
the exchange of intelligence information between States is predicated upon mutual
confidence in the ability of each country to protect sensitive information.
Accordingly, maintaining the confidence of other States in Australia’s ability to
keep intelligence information confidential is fundamental to the functioning of
Australia’s intelligence-sharing relationships, and to Australia’s national security.
3.17. These risks were summed up by the United Kingdom’s House of Lords in
Regina v. Shayler when the court said:
There is much domestic authority pointing to the need for a security or
intelligence service to be secure. The commodity in which such a service deals
is secret and confidential information. If the service is not secure those working
against the interest s of the state, whether terrorists, other criminals or foreign
agents, will be alerted, and able to take evasive action; its own agents may be
unmasked; members of the service will feel unable to rely on each other; those
upon whom the service relies as so urces of information will feel unable to rely
on their identity remaining secret; a77 foreign countries will decline to entrust
their own secrets to an insecure recipient.
3.18. The fact that the disclosure of even seemingly minor, inconsequential
information can have grave consequences was clearly stated by the English courts
in the ‘Spycatcher’ case:
In an intelligence or count-intelligence context, there is great difficulty in
knowing what is and what is not trivial. Intelligence and coun-intelligence
operations have much in common with a jigsaw puzzle. A single piece of
information viewed in isolation may indeed appear trivial. Viewed in the context
of other seeming trivia, it78ay remain trivial or it may be of vast significance as
illuminating the entire picture.
77
Regina v. Shayler [2002] 2 WLR 754, [25] [Annex 4].
78
Attorney General v. Guardian Newspapers Ltd and others (No. 2) [1988] 2 WLR 805, [870F]
[Annex 5]. To be deprived of the capacity to protect its nationals in such circumstances would
be unacceptable to any State.
3.22. Accordingly, following the receipt of information that Mr Collaery was
facilitating the unauthorised disclosure of national security information to
Timor-Leste, ASIO commenced an investigation. Consistent with its functions,
the purpose of this investigation was to confirm whether that information was
correct and thus provide a basis for ASIO to advise Ministers and Australian
authorities about the national security threat thereby posed.
3.23. As a result of its initial investigations, ASIO concluded that it was
necessary to request a warrant from the Attorney -General of Australia to allow it
to enter and search the premises of Mr Collaery.
3.24. The circumstances in which a search warrant may be issued by the
Attorney-General are regulated by the ASIO Act, section 25 of which p rovides
that:
(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 warrant in
accordance with this section.
Test for issue of warrant
(2) The Minister is only to issue the warrant if he or she is satisfied that there are
reasonable grounds for believing that access by the Organisation to records or
other things on particular 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. (emphasis in
original)
3.25. A warrant may authorise ASIO to enter and search premises, inspect and
examine records and other things found on the premises, and remove and retain
records and other things. 82 The warrant may also authorise ASIO to access and
81
Australian Security Intelligence Organisation Act 1979 (Cth), s 25(1) and (2) [Annex 37].
82
Australian Security Intelligence Organisation Act 1979 (Cth), s 25(4) [Annex 37].
32To be deprived of the capacity to protect its nationals in such circumstances would
be unacceptable to any State.
3.22. Accordingly, following the receipt of information that Mr Collaery was
facilitating the unauthorised disclosure of national security information to
Timor-Leste, ASIO commenced an investigation. Consistent with its functions,
the purpose of this investigation was to confirm whether that information was
correct and thus provide a basis for ASIO to advise Ministers and Australian
authorities about the national security threat thereby posed.
3.23. As a result of its initial investigations, ASIO concluded that it was
necessary to request a warrant from the Attorney -General of Australia to allow it
to enter and search the premises of Mr Collaery.
3.24. The circumstances in which a search warrant may be issued by the
Attorney-General are regulated by the ASIO Act, section 25 of which p rovides
that:
(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 warrant in
accordance with this section.
Test for issue of warrant
(2) The Minister is only to issue the warrant if he or she is satisfied that there are
reasonable grounds for believing that access by the Organisation to records or
other things on particular 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. (emphasis in
original)
3.25. A warrant may authorise ASIO to enter and search premises, inspect and
examine records and other things found on the premises, and remove and retain
records and other things. 82 The warrant may also authorise ASIO to access and
81
Australian Security Intelligence Organisation Act 1979 (Cth), s 25(1) and (2) [Annex 37].
82
Australian Security Intelligence Organisation Act 1979 (Cth), s 25(4) [Annex 37]. device brought to, or found on the subject premises or carried by Bernard Joseph
Edward Collaery and those of any persons present on the residence.
3.29. Under section 25(5) of the ASIO Act, the Attorney -General also
authorised ASIO to:
a. use any computer, or other electronic equipment or data storage device
brought to or found in the subject premises for the purpose of gaining access to
data relevant to the security matter, and, if necessary to achieve that purpose, to
add, delete or alter other data in the computer or electronic equipment.
b. use any computer, or other electronic equipment or data storage device
brought to or found in the subject premises to do any of the following:
(i) inspect and examine any data to which access has been obtained;
(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 twhich 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 device and remove the storage device.
c. do any thing reasonably necessary to conceal the fact that any thing has been
done under the warrant.
87
d. do any other thing reasonably incidental to any of the above.
3.30. The relevant search warrant was issued on 2 December 2013 and executed
88
by ASIO on the following day. Consistent with section 25(4C), ASIO does not
appropriate or take ownership of the Materials. Provided such action would not
be prejudicial to security, the Materials will be returned within a reasonable time
in accordance with the ASIO Act.
3.31. For comp leteness, Australia notes that, pursuant to a second warrant ,
ASIO also entered and searched the premises of ‘K’ on 3 December 2013. That
warrant, those premises and any materials removed therefrom, are not the subject
of this dispute.
86
Search Warrant issued under Section 25, Australian Security Intelligence Organisation Act
1979, 2 December 2013 [redacted] [Annex 83].
87
Search Warrant issued under Section 25, Australian Security Intelligence Organisation Act
1979, 2 December 2013 [redacted] [Annex 83].
88Search Warrant issued under Section 25, Australian Security Intelligence Organisation Act
1979, 2 December 2013 [redacted] [Annex 83].
34 device brought to, or found on the subject premises or carried by Bernard Joseph
Edward Collaery and those of any persons present on the residence.
3.29. Under section 25(5) of the ASIO Act, the Attorney -General also
authorised ASIO to:
a. use any computer, or other electronic equipment or data storage device
brought to or found in the subject premises for the purpose of gaining access to
data relevant to the security matter, and, if necessary to achieve that purpose, to
add, delete or alter other data in the computer or electronic equipment.
b. use any computer, or other electronic equipment or data storage device
brought to or found in the subject premises to do any of the following:
(i) inspect and examine any data to which access has been obtained;
(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 twhich 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 device and remove the storage device.
c. do any thing reasonably necessary to conceal the fact that any thing has been
done under the warrant.
87
d. do any other thing reasonably incidental to any of the above.
3.30. The relevant search warrant was issued on 2 December 2013 and executed
88
by ASIO on the following day. Consistent with section 25(4C), ASIO does not
appropriate or take ownership of the Materials. Provided such action would not
be prejudicial to security, the Materials will be returned within a reasonable time
in accordance with the ASIO Act.
3.31. For comp leteness, Australia notes that, pursuant to a second warrant ,
ASIO also entered and searched the premises of ‘K’ on 3 December 2013. That
warrant, those premises and any materials removed therefrom, are not the subject
of this dispute.
86
Search Warrant issued under Section 25, Australian Security Intelligence Organisation Act
1979, 2 December 2013 [redacted] [Annex 83].
87
Search Warrant issued under Section 25, Australian Security Intelligence Organisation Act
1979, 2 December 2013 [redacted] [Annex 83].
88Search Warrant issued under Section 25, Australian Security Intelligence Organisation Act
1979, 2 December 2013 [redacted] [Annex 83]. legal team conducting the Arbitration on behalf of Australia and he has since
provided further undertakings which reinforce this commitment. Under these
circumstances, it cannot be sustained that the execution of the warrant could have
been intended to materially benefit Australia (or undermine Timor-Leste) in the
First Procedural Meeting or in the course of the Arbitration more broadly.
Section II. Australia has implemented a range of measures to
mitigate the potential risk to any plausible rights of Timor-Leste
or others
3.34. As e xplained in the previous section, the execution of the warrant by
ASIO w as a reasonable and necessary response to protect Australian (and
potentially other) lives and national security. Notwithstanding Australia’s right to
act in such a manner, the relevant authorities recognised the possibility that a
claim to legal professional privilege under Australian domestic law might be made
over some of the Materials by some of Mr Collaery’s clients, including
Timor-Leste. Accordingly, safeguards were put in place to mitigate the risk of
any breach of such privilege, both in relation to the execution of the warrant and,
subsequently, in respect of the way the Materials were handled by Australian
officials. Timor-Leste has claimed that the ‘inspection, seizure and retention …
places Australia in a position in which it could cause damage to Timor-Leste’s
interests’.0 As will be made clear below, Australia took numerous steps to avoid
this, and has ensured that Timor-Leste’s legitimate legal interests could not have
been prejudiced.
A. S AFEGUARDS WERE PUT IN PLACE DURING THE EXECUTION OF THE WARRANT
3.35. As an initial measu re, a legal officer accompanied the ASIO search team
on 3 December 2013 . Items removed from the premises were only briefly
90Timor-Leste, Memorial, [1.9].
36legal team conducting the Arbitration on behalf of Australia and he has since
provided further undertakings which reinforce this commitment. Under these
circumstances, it cannot be sustained that the execution of the warrant could have
been intended to materially benefit Australia (or undermine Timor-Leste) in the
First Procedural Meeting or in the course of the Arbitration more broadly.
Section II. Australia has implemented a range of measures to
mitigate the potential risk to any plausible rights of Timor-Leste
or others
3.34. As e xplained in the previous section, the execution of the warrant by
ASIO w as a reasonable and necessary response to protect Australian (and
potentially other) lives and national security. Notwithstanding Australia’s right to
act in such a manner, the relevant authorities recognised the possibility that a
claim to legal professional privilege under Australian domestic law might be made
over some of the Materials by some of Mr Collaery’s clients, including
Timor-Leste. Accordingly, safeguards were put in place to mitigate the risk of
any breach of such privilege, both in relation to the execution of the warrant and,
subsequently, in respect of the way the Materials were handled by Australian
officials. Timor-Leste has claimed that the ‘inspection, seizure and retention …
places Australia in a position in which it could cause damage to Timor-Leste’s
interests’.0 As will be made clear below, Australia took numerous steps to avoid
this, and has ensured that Timor-Leste’s legitimate legal interests could not have
been prejudiced.
A. S AFEGUARDS WERE PUT IN PLACE DURING THE EXECUTION OF THE WARRANT
3.35. As an initial measu re, a legal officer accompanied the ASIO search team
on 3 December 2013 . Items removed from the premises were only briefly
90Timor-Leste, Memorial, [1.9]. B. T HE A TTORNEY -G ENERAL MADE A RANGE OF STATEMENTS , DIRECTIONS AND
UNDERTAKINGS TO PRESERVE TIMOR -LESTE ’S RIGHTS
3.38. Immediately following, and in the weeks after the execution of the
warrant, the Attorney-General made a number of public statements, directions and
undertakings to ensure that the Materials would be handled in such a way as to
ensure that any plausible rights of Timor-Leste were not prejudiced.
Ministerial Statement of 4 December 2013
3.39. On 4 December 2013, the Attorney-General made a Ministerial Statement
to the Australian Senate about the execution of the search warrant.
3.40. He explained that the search warrant had been issued ‘at the request of
ASIO, on the grounds that the documents and electronic data in question
contained intelligence relating to security matters’. 94
3.41. The Attorney-General further advised the Senate:
I have given an instruction to ASIO that the material taken into possession in
execution of the warrants is not under any circumst95ces to be communicated to
those conducting the proceedings on behalf of Australia.
3.42. It is evident from the Statement that, from the very time of execution of
the warrant, safeguards were in place to avoid any disadvantage to Timor-Leste in
the Arbitration. At no stage have the Materials been provided to anyone
conducting the Arbitration on behalf of Australia.
Undertaking of 19 December 2013
3.43. The Arbitral Tribunal convened on 5 December 2013 in The Hague for its
96
First Procedural Meeting. At that meeting, Counsel for Timor-Leste raised the
94
Senator the Hon. George Brandis QC, Attorney-General, ‘Ministerial Statement: Execution of
ASIO Search Warrants’, 4 December 2013, 1 [Annex 52].
95
Senator the Hon. George Brandis QC, Attorney-General, ‘Ministerial Statement: Execution of
ASIO Search Warrants’, 4 December 2013, 2 [Annex 52].
38B. T HE A TTORNEY -G ENERAL MADE A RANGE OF STATEMENTS ,DIRECTIONS AND
UNDERTAKINGS TO PRESERVE T IMOR -L ESTE ’S RIGHTS
3.38. Immediately following, and in the weeks after the execution of the
warrant, the Attorney-General made a number of public statements, directions and
undertakings to ensure that the Materials would be handled in such a way as to
ensure that any plausible rights of Timor-Leste were not prejudiced.
Ministerial Statement of 4 December 2013
3.39. On 4 December 2013, the Attorney-General made a Ministerial Statement
to the Australian Senate about the execution of the search warrant.
3.40. He explained that the search warrant had been issued ‘at the request of
ASIO, on the grounds that the documents and electronic data in question
contained intelligence relating to security matters’. 94
3.41. The Attorney-General further advised the Senate:
I have given an instruction to ASIO that the material taken into possession in
execution of the warrants is not under any circums95nces to be communicated to
those conducting the proceedings on behalf of Australia.
3.42. It is evident from the Statement that, from the very time of execution of
the warrant, safeguards were in place to avoid any disadvantage to Timor-Leste in
the Arbitration. At no stage have the Materials been provided to anyone
conducting the Arbitration on behalf of Australia.
Undertaking of 19 December 2013
3.43. The Arbitral Tribunal convened on 5 December 2013 in The Hague for its
96
First Procedural Meeting. At that meeting, Counsel for Timor-Leste raised the
94
Senator the Hon. George Brandis QC, Attorney-General, ‘Ministerial Statement: Execution of
ASIO Search Warrants’, 4 December 2013, 1 [Annex 52].
95
Senator the Hon. George Brandis QC, Attorney-General, ‘Ministerial Statement: Execution of
ASIO Search Warrants’, 4 December 2013, 2 [Annex 52]. 3.45. The Attorney-General subsequently provided a written undertaking to the
Arbitral Tribunal dated 19 December 2013, as follows:
I have given an instruction to ASIO that the content of the Material or any
information derived from the Material, is not under any circumstances tobe
communicated to those conducting these proceedings on behalf of the
Commonwealth of Australia.
[…]
The Material will not be used by any part of the Australian Government for any
purpose related to this arbitration.
[…]
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 myself of the Material, I will first bring that fact to the attention
of the Tribunal, at which time further undertakings will be offered.
Direction to the Director-General of ASIO on 23 December 2013
3.46. On 17 December 2013 (without waiting for Australia to provide its written
undertaking in accordance with the timeframe established by the Tribunal ),
Timor-Leste filed its Application with the Court. In order to ensure that
Timor-Leste’s potential legal rights were equally protected in relation to these
new proceedings, on 23 December 2013 the Attorney- General directed the
Director-General o f ASIO in writing that the Materials were not to be
communicated to those conducting the proceedi ngs on behalf of Australia before
the Court and that the measures set out in the 19 December undertaking (in
relation to the Arbitration) be implemented equally in relation to the proceedings
instituted before this Court. 103
102Senator the Hon. George Brandis QC, Attorney-General of Australia, ‘Written Undertaking’,
Arbitration under the Timor Sea Treaty, 19 December 2013 [Annex 74].
103Letter from Senator the Hon. George Brandis QC, Attorney-General of Australia, to Mr David
Irvine AO, Director-General of Security, 23 December 2013 [Annex 53].
403.45. The Attorney-General subsequently provided a written undertaking to the
Arbitral Tribunal dated 19 December 2013, as follows:
I have given an instruction to ASIO that the content of the Material or any
information derived from the Material, is not under any circumstances tobe
communicated to those conducting these proceedings on behalf of the
Commonwealth of Australia.
[…]
The Material will not be used by any part of the Australian Government for any
purpose related to this arbitration.
[…]
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 myself of the Material, I will first bring that fact to the attention
of the Tribunal, at which time further undertakings will be offered.
Direction to the Director-General of ASIO on 23 December 2013
3.46. On 17 December 2013 (without waiting for Australia to provide its written
undertaking in accordance with the timeframe established by the Tribunal ),
Timor-Leste filed its Application with the Court. In order to ensure that
Timor-Leste’s potential legal rights were equally protected in relation to these
new proceedings, on 23 December 2013 the Attorney- General directed the
Director-General o f ASIO in writing that the Materials were not to be
communicated to those conducting the proceedi ngs on behalf of Australia before
the Court and that the measures set out in the 19 December undertaking (in
relation to the Arbitration) be implemented equally in relation to the proceedings
instituted before this Court. 103
102Senator the Hon. George Brandis QC, Attorney-General of Australia, ‘Written Undertaking’,
Arbitration under the Timor Sea Treaty, 19 December 2013 [Annex 74].
103Letter from Senator the Hon. George Brandis QC, Attorney-General of Australia, to Mr David
Irvine AO, Director-General of Security, 23 December 2013 [Annex 53]. Director of Public Prosecution s would undoubtedly s eek orders under section
19(1A) of the NSI Act and also section 93.2 of the Criminal Code Act 1995
(Cth).106 This would include orders that the relevant Materials be produced in a
confidential (in camera) hearing, that no person ha ve access (whether before,
during or after the hearing) to the Materials without the approval of the court, and
that the Materials be held in accordance with strict security and handling
requirements. Such orders would limit the dissemination of the Materials and
ensure that Timor-Leste was not prejudiced by the use of the Materials in this
way. In the unlikely event that the orders were not made, Australia has
undertaken to revert to the Court before any further action is taken in Australia. 107
3.50. Finally, Australian criminal law applies to the actions of Australian
108
officials to prevent anyunauthorised disclosure of such information.
3.51. In addition to the statements, directions and undertakings of the
Attorney-General, assurances have been given to DLA Piper, legal advisers acting
for Timor-Leste, by the Australian Government Solicitor (AGS), legal advisers to
the Australian Government. In correspondence to DLA Piper, AGS has stated on
at least three occasions that the Australian Government was prepar ed to ‘take no
109
steps’ in relation to the Materials while Timor-Leste considered its next action.
AGS outlined the process by which Timor-Leste could make a claim with regard
to legal professional privilege in domestic courts, extending the assurance to ‘take
106Criminal Code Act 1995 (Cth), Schedule, s 93.2 [Annex 39].
107Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste
v. Australia), Corrected Record CR/2014/4, 22 January 2014, [50] (Gleeson).
108
Crimes Act 1914 (Cth), s 70 [Annex 40].
109Letter from the Australian Government Solicitor to DLA Piper, 16 December 2013 [Annex 55];
Letter from the Australian Government Solicitor to DLA Piper, 19 December 2013 [Annex 56];
Letter from the Australian Government Solicitor to DLA Piper, 24 December 2013 [Annex 57].
42Director of Public Prosecution s would undoubtedly s eek orders under section
19(1A) of the NSI Act and also section 93.2 of the Criminal Code Act 1995
(Cth).106 This would include orders that the relevant Materials be produced in a
confidential (in camera) hearing, that no person ha ve access (whether before,
during or after the hearing) to the Materials without the approval of the court, and
that the Materials be held in accordance with strict security and handling
requirements. Such orders would limit the dissemination of the Materials and
ensure that Timor-Leste was not prejudiced by the use of the Materials in this
way. In the unlikely event that the orders were not made, Australia has
undertaken to revert to the Court before any further action is taken in Australia. 107
3.50. Finally, Australian criminal law applies to the actions of Australian
108
officials to prevent anyunauthorised disclosure of such information.
3.51. In addition to the statements, directions and undertakings of the
Attorney-General, assurances have been given to DLA Piper, legal advisers acting
for Timor-Leste, by the Australian Government Solicitor (AGS), legal advisers to
the Australian Government. In correspondence to DLA Piper, AGS has stated on
at least three occasions that the Australian Government was prepar ed to ‘take no
109
steps’ in relation to the Materials while Timor-Leste considered its next action.
AGS outlined the process by which Timor-Leste could make a claim with regard
to legal professional privilege in domestic courts, extending the assurance to ‘take
106Criminal Code Act 1995 (Cth), Schedule, s 93.2 [Annex 39].
107Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste
v. Australia), Corrected Record CR/2014/4, 22 January 2014, [50] (Gleeson).
108
Crimes Act 1914 (Cth), s 70 [Annex 40].
109Letter from the Australian Government Solicitor to DLA Piper, 16 December 2013 [Annex 55];
Letter from the Australian Government Solicitor to DLA Piper, 19 December 2013 [Annex 56];
Letter from the Australian Government Solicitor to DLA Piper, 24 December 2013 [Annex 57]. 3.54. In addition to the brief description of the Materials pr ovided in the
Property Seizure Record and in Mr Collaery’s letter to Ambassador Fonseca, 112
the relevant facts available to the Court include the following:
(1) Mr Collaery is the sole principal of Collaery Lawyers and holds a
practising certificate in the Australian Capital Territory 113
(2) He carries on a legal practice at 5 Brockman Street, Narrabundah
(3) This practice is subject to the laws of the Australian Capital Territory,
114
in particular the Legal Profession (Solicitors) Rules 2007 (ACT),
115
made under the Legal Profession Act 2006 (ACT)
(4) ‘K’ has been a client of Mr Collaery since at least May 2008 116
(5) Mr Collaery has been a Consultant to the Government of Timor-Leste
since at least 2010 117
(6) Since September 2012, work conducted by Mr Collaery for
Timor-Leste has been subject to the terms of Mr Collaery’s
118
Consultancy Agreement with Timor-Leste
112
Property Seizure Record No. A 228909 – A 228915, 5 Brockman St, 3 December 2013
[Annex 84]; Letter from Mr Bernard Collaery to Ambassador for Timor-Leste to the United
Kingdom, Joaquim da Fonseca, 5 December 2013 [Annex 87].
113
B Collaery, ‘Bernard Joseph Edward Collaery, Resumé’ (accessed at
<http://www.cclaw.com.au/wp-content/uploads/2013/09/130916-Bernard-Colla…;
on 20 July 2014).
114
Legal Profession (Solicitors) Rules 2007 (ACT) [Annex 42].
115
Legal Profession Act 2006 (ACT) [Annex 43].
116Letter from ‘K’ to Mr Ian Carnell, Inspector-General of Intelligence and Security of Australia,
12 May 2008 [Annex 76].
117Extract from Timor-Leste E-Procurement Portal showing list of contracts awarded to Bernard
Collaery for ‘Consultancy Services’ since 2010 [Annex 72].
118Formal Instrument of Agreement between the Government of the Democratic Republic of
Timor-Leste and The Bernard Collaery & Associates, Trading as Collaery Lawyers represented by
Bernard Collaery, 17 September 2012, signed by Xanana Gusmão (on behalf of Timor -Leste) and
Mr Bernard Collaery (Timor-Leste, Memorial, Annex 7).
443.54. In addition to the brief description of the Materials pr ovided in the
Property Seizure Record and in Mr Collaery’s letter to Ambassador Fonseca, 112
the relevant facts available to the Court include the following:
(1) Mr Collaery is the sole principal of Collaery Lawyers and holds a
practising certificate in the Australian Capital Territory 113
(2) He carries on a legal practice at 5 Brockman Street, Narrabundah
(3) This practice is subject to the laws of the Australian Capital Territory,
114
in particular the Legal Profession (Solicitors) Rules 2007 (ACT),
115
made under the Legal Profession Act 2006 (ACT)
(4) ‘K’ has been a client of Mr Collaery since at least May 2008 116
(5) Mr Collaery has been a Consultant to the Government of Timor-Leste
since at least 2010 117
(6) Since September 2012, work conducted by Mr Collaery for
Timor-Leste has been subject to the terms of Mr Collaery’s
118
Consultancy Agreement with Timor-Leste
112
Property Seizure Record No. A 228909 – A 228915, 5 Brockman St, 3 December 2013
[Annex 84]; Letter from Mr Bernard Collaery to Ambassador for Timor-Leste to the United
Kingdom, Joaquim da Fonseca, 5 December 2013 [Annex 87].
113
B Collaery, ‘Bernard Joseph Edward Collaery, Resumé’ (accessed at
<http://www.cclaw.com.au/wp-content/uploads/2013/09/130916-Bernard-Colla…;
on 20 July 2014).
114
Legal Profession (Solicitors) Rules 2007 (ACT) [Annex 42].
115
Legal Profession Act 2006 (ACT) [Annex 43].
116Letter from ‘K’ to Mr Ian Carnell, Inspector-General of Intelligence and Security of Australia,
12 May 2008 [Annex 76].
117Extract from Timor-Leste E-Procurement Portal showing list of contracts awarded to Bernard
Collaery for ‘Consultancy Services’ since 2010 [Annex 72].
118Formal Instrument of Agreement between the Government of the Democratic Republic of
Timor-Leste and The Bernard Collaery & Associates, Trading as Collaery Lawyers represented by
Bernard Collaery, 17 September 2012, signed by Xanana Gusmão (on behalf of Timor -Leste) and
Mr Bernard Collaery (Timor-Leste, Memorial, Annex 7). On this basis, Timor-Leste requests the Court to order that all of the Materials be
‘returned’ to Timor-Leste. 125 However, Timor-Leste has accepted in its Memorial
that LPP006 and LPP013 do not belong to it. 126
3.56. In these circumstances, the Court should take a cautious approach in
attributing rights or interests in the Materials, especially the unsubstantiated
claims made by Timor-Leste to ownership over, and other interests in, the
Materials.
Onus of proof
3.57. In this regard, Timor-Leste bears the onus of proving its factual claims.
The rule that the party seeking to rely on a fact has the burden to prove it has long
been applied by international courts and tribunals 127 and has even been said to be
128
a general principle of law.
3.58. Timor-Leste must establish, in accordance with the Statute of the Court,
that its claims are ‘well founded in fact’. 129 To be well founded in fact, a claim
should be accompanied by clear and convincing evidence. 130
125
Timor-Leste, Memorial, Final Submissions, (1) and (3).
126
Timor-Leste, Memorial, [4.23(h) and (o)].
127Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Jurisdiction of the Court and Admissibility of the Application, 26
November 1984, I.C.J. Reports 1984, 392 at [101]; Case Concerning Pulp Mills on the River
Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, I.C.J. Reports 2010, 14 at [162].
128J L Simpson and H Fox, International Arbitration (Stevens and Sons Ltd, 1959), 194. See also:
S thsenne, The Law and Practice of the International Court, 1920-2005, Volume III: Procedure
(4 ed., Brill Nijhoff, 2006), 1040; M Kazazi, Burden of proof and related issues: a study on
evidence before international tribunals (Kluwer Law International, 1996), 369.
129
Statute of the International Court of Justice, San Francisco, 26 June 1945, 33 UNTS 993
(entered into force 24 October 1945), Article 53(2).
130M Benzing, ‘Evidentiary Issues’, in A Zimmerman, C Tomuschat, K Oellers-Frahm and
nd
C Tams (eds.), The Statute of the International Court of Justice: A Commentary, (2ed., Oxford
University Press, 2012), 1265 [Annex 29].
46On this basis, Timor-Leste requests the Court to order that all of the Materials be
‘returned’ to Timor-Leste. 125 However, Timor-Leste has accepted in its Memorial
that LPP006 and LPP013 do not belong to it. 126
3.56. In these circumstances, the Court should take a cautious approach in
attributing rights or interests in the Materials, especially the unsubstantiated
claims made by Timor-Leste to ownership over, and other interests in, the
Materials.
Onus of proof
3.57. In this regard, Timor-Leste bears the onus of proving its factual claims.
The rule that the party seeking to rely on a fact has the burden to prove it has long
been applied by international courts and tribunals 127 and has even been said to be
128
a general principle of law.
3.58. Timor-Leste must establish, in accordance with the Statute of the Court,
that its claims are ‘well founded in fact’. 129 To be well founded in fact, a claim
should be accompanied by clear and convincing evidence. 130
125
Timor-Leste, Memorial, Final Submissions, (1) and (3).
126
Timor-Leste, Memorial, [4.23(h) and (o)].
127Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Jurisdiction of the Court and Admissibility of the Application, 26
November 1984, I.C.J. Reports 1984, 392 at [101]; Case Concerning Pulp Mills on the River
Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, I.C.J. Reports 2010, 14 at [162].
128J L Simpson and H Fox, International Arbitration (Stevens and Sons Ltd, 1959), 194. See also:
S thsenne, The Law and Practice of the International Court, 1920-2005, Volume III: Procedure
(4 ed., Brill Nijhoff, 2006), 1040; M Kazazi, Burden of proof and related issues: a study on
evidence before international tribunals (Kluwer Law International, 1996), 369.
129
Statute of the International Court of Justice, San Francisco, 26 June 1945, 33 UNTS 993
(entered into force 24 October 1945), Article 53(2).
130M Benzing, ‘Evidentiary Issues’, in A Zimmerman, C Tomuschat, K Oellers-Frahm and
nd
C Tams (eds.), The Statute of the International Court of Justice: A Commentary, (2ed., Oxford
University Press, 2012), 1265 [Annex 29].48 Chapter 4 – There is no unqualified right of
confidentiality or legal professional privilege in
communications between a State and its legal advisers
4.1. In its Order o f 3 March 2014 , the Court briefly identified as plausible a
right of confidentiality of, and non -interference in, communications between a
State and its legal adviser as one category of right asserted by Timor-Leste.
Timor-Leste also asserts a right of legal professional privilege as a general
131
principle of law, which the Court identified but did not recognise as plausible.
This Chapter will demonstrate that neither of these rights exist at international
law, and that even if they did exist and applied to (some of) the Materials, the
actions taken by Australia to safeguard the Materials must lead to the conclusion
that no violation of Timor-Leste’s rights has occurred.
4.2. Section I addresses the purported right of confidentiality of, and
non-interference in, communicat ions between a State and its legal adviser.
It demonstrates that no such right has been recognised at international law.
Further, if such a right is to be recognised, it must be appropriately defined and
qualified, particularly where it circumscribe s the ability of a forum State to
exercise territorial sovereignty or to protect its legitimate national security
interests. In particular, any such right should not be used for an improper purpose
– including as a cover for a serious breach of confidentiality between a State and
its former employee, and the consequent commission of criminal offences. Also,
such a right c annot be asserted where the confidential information it purports to
protect has already been voluntarily disclosed by the State seeking its protection.
4.3. Section II addresses the principle of legal professional privilege which is
asserted by Timor-Leste. It identifies the lack of judicial or scholarly support for
the assertion that legal professional privilege is a general principle of law. If a
131
Timor-Leste, Memorial, [6.2], [6.6], [6.11].
49 specific right of legal professional privilege is found to exist at international law,
its content should in any case be informed by domestic legal jurisprudence based
on extensive experience with such problems. In this regard, the proper conclusion
is that legal professional privilege does not apply where the relevant
communications involve or facilitate a crime or fraudulent act (described here as
the ‘criminal offence exception’).
4.4. Section III applies these conclusions to the facts in these proceedings.
In short, a foreign State ( Timor-Leste) cannot assert a right of confidentiality or
non-interference as a shield from the lawful exercise of territorial jurisdiction by a
forum State (Australia), undertaken to protect i ts national security. Further,
Timor-Leste has waived its right to claim confidentiality over certain of the
Materials by its public disclosure (through Mr Collaery) of the content of the
affidavit of ‘K’. In relation to the claim of legal professional p rivilege, the
criminal offence exception applies to any of the Materials containing national
security information disclosed by ‘K’, and hence Timor-Leste has no claim over
that Material. This Section also establishes that, to the limited extent that certa in
Materials may be covered by a right of confidentiality or legal professional
privilege, Australia has acted in good faith and taken all necessary steps to
preserve any such right . There has been no violation of, or harm to,
Timor-Leste’s legal interests.
50specific right of legal professional privilege is found to exist at international law,
its content should in any case be informed by domestic legal jurisprudence based
on extensive experience with such problems. In this regard, the proper conclusion
is that legal professional privilege does not apply where the relevant
communications involve or facilitate a crime or fraudulent act (described here as
the ‘criminal offence exception’).
4.4. Section III applies these conclusions to the facts in these proceedings.
In short, a foreign State ( Timor-Leste) cannot assert a right of confidentiality or
non-interference as a shield from the lawful exercise of territorial jurisdiction by a
forum State (Australia), undertaken to protect i ts national security. Further,
Timor-Leste has waived its right to claim confidentiality over certain of the
Materials by its public disclosure (through Mr Collaery) of the content of the
affidavit of ‘K’. In relation to the claim of legal professional p rivilege, the
criminal offence exception applies to any of the Materials containing national
security information disclosed by ‘K’, and hence Timor-Leste has no claim over
that Material. This Section also establishes that, to the limited extent that certa in
Materials may be covered by a right of confidentiality or legal professional
privilege, Australia has acted in good faith and taken all necessary steps to
preserve any such right . There has been no violation of, or harm to,
Timor-Leste’s legal interests. claimed right to confidentiality of communications between Timor-Leste and its
legal advisers.
4.8. In truth there is no unqualified right of general application which protects
the confidentiality of, and non -interference in, communications between a State
and its legal advisers.
4.9. This Court has never held that States enjoy a right of confidential ity and
non-interference which protects absolutely their communications with their legal
advisers, and none of the cases cited by Timor-Leste demonstrate that there is
135
such a right of general application. Even where those cases recognise a form of
confidentiality or privilege attach ing to such communications, those rights are
136
qualified to ensure that they are not abused.
4.10. There are recognised rights of confidentiality in international law, but
these are codified in treaties or rules on confidentiality whi ch set out the scope of
the right , including any relevant qualifications. For example, there is a
well-recognised right of confidentiality in relation to official communications
between a foreign State and its diplomatic missions and consular posts which is
137
set out in the Vienna Convention on Diplomatic Relations 1961 and the
138
Vienna Convention on Consular Relations 1963. In the context of international
arbitration, rights of confidentiality are set out in some detail in the applicable
procedural rules, including the United Nations Commission on International
135See discussion of the cases in Section II below.
136
See discussion of the cases in Section II below.
137Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 27.
138Vienna Convention on Consular Relations, Vienna, 24 April 1963, 596 UNTS 261 (entered into
force 19 March 1967), Article 35.
52claimed right to confidentiality of communications between Timor-Leste and its
legal advisers.
4.8. In truth there is no unqualified right of general application which protects
the confidentiality of, and non -interference in, communications between a State
and its legal advisers.
4.9. This Court has never held that States enjoy a right of confidential ity and
non-interference which protects absolutely their communications with their legal
advisers, and none of the cases cited by Timor-Leste demonstrate that there is
135
such a right of general application. Even where those cases recognise a form of
confidentiality or privilege attach ing to such communications, those rights are
136
qualified to ensure that they are not abused.
4.10. There are recognised rights of confidentiality in international law, but
these are codified in treaties or rules on confidentiality whi ch set out the scope of
the right , including any relevant qualifications. For example, there is a
well-recognised right of confidentiality in relation to official communications
between a foreign State and its diplomatic missions and consular posts which is
137
set out in the Vienna Convention on Diplomatic Relations 1961 and the
138
Vienna Convention on Consular Relations 1963. In the context of international
arbitration, rights of confidentiality are set out in some detail in the applicable
procedural rules, including the United Nations Commission on International
135See discussion of the cases in Section II below.
136
See discussion of the cases in Section II below.
137Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 27.
138Vienna Convention on Consular Relations, Vienna, 24 April 1963, 596 UNTS 261 (entered into
force 19 March 1967), Article 35. choice to retain the local lawyer entails acceptance of the regulatory syste m
applicable there.
4.14. Even if, in such a case, there is a supervening international law of
professional pr actice (never before articulated), the scope of any right of
confidentiality must necessarily exclude its use for an improper purpose, for
example, to facilitate the commission of a crime. This is consistent with the scope
of other privileges and rights exercised by a foreign State in the territory of a
forum State, which cannot be used for an improper purpose. For example, the
right of a foreign Sta te to avoid having its diplomatic bag opened or detained on
142
the territory of a forum State cannot be used as a cover to facilitate a criminal
143
offence, including the illegal import or export of drugs, or the kidnapping of
144
persons. Nor can it be used in a way which would pose a threat to the public
(for example, by attempting to transport explosives), 145 or to prevent legitimate
action by a forum State to protect the safety of an aircraft. 146 Such uses of the
diplomatic bag amount to a n improper purpose, and (despite the accepted
principle of inviolability of diplomatic correspondence) necessarily fall outside
the scope of the right afforded to a foreign State on a forum State’s territory.
142
Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 27(3).
143
‘Italy finds cocaine in Ecuador diplomatic pouch: Quito’, Agence France Presse, 10 February
2012 [Annex 62]; J Bargent, ‘Ecuador tightens controls on diplomatic mail after cocaine scandal’,
Insight Crime, 14 January 2013 [Annex 63]; R Tagg, ‘Cocaine found in diplomats baggage’, The
Sunday Times, 26 October 2003 [Annex 64]; J Witherow, ‘Embassy official jailed for drug
smuggling’, The Times, 16 October 1980 [Annex 65]; E Denza, Diplomatic Law: Commentary on
rd
the Vienna Convention on Diplomatic Relations, (3 ed., Oxford University Press, 2008), 238,
242.
144
rd Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations,
(3 ed., Oxford University Press, 2008), 242 citing ‘Gagged man in diplomatic trunk’, The Times,
18 November 1964 [Annex 66]; ‘Italy charges U.A.R Embassy Men’, The Times, 23 November
1964 [Annex 67]; ‘Trunk man remanded in Israel’, The Times, 27 November 1964 [Annex 68].
145E Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations,
(3rded., Oxford University Press, 2008), 243.
146Comments and Observations of the Government of Switzerland, Yearbook of the International
Law Commission 1988 Volume II Part 1, A/CN.4/SER.A/1988/Add.1 (Part 1), 162.
54choice to retain the local lawyer entails acceptance of the regulatory syste m
applicable there.
4.14. Even if, in such a case, there is a supervening international law of
professional pr actice (never before articulated), the scope of any right of
confidentiality must necessarily exclude its use for an improper purpose, for
example, to facilitate the commission of a crime. This is consistent with the scope
of other privileges and rights exercised by a foreign State in the territory of a
forum State, which cannot be used for an improper purpose. For example, the
right of a foreign Sta te to avoid having its diplomatic bag opened or detained on
142
the territory of a forum State cannot be used as a cover to facilitate a criminal
143
offence, including the illegal import or export of drugs, or the kidnapping of
144
persons. Nor can it be used in a way which would pose a threat to the public
(for example, by attempting to transport explosives), 145 or to prevent legitimate
action by a forum State to protect the safety of an aircraft. 146 Such uses of the
diplomatic bag amount to a n improper purpose, and (despite the accepted
principle of inviolability of diplomatic correspondence) necessarily fall outside
the scope of the right afforded to a foreign State on a forum State’s territory.
142
Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 27(3).
143
‘Italy finds cocaine in Ecuador diplomatic pouch: Quito’, Agence France Presse, 10 February
2012 [Annex 62]; J Bargent, ‘Ecuador tightens controls on diplomatic mail after cocaine scandal’,
Insight Crime, 14 January 2013 [Annex 63]; R Tagg, ‘Cocaine found in diplomats baggage’, The
Sunday Times, 26 October 2003 [Annex 64]; J Witherow, ‘Embassy official jailed for drug
smuggling’, The Times, 16 October 1980 [Annex 65]; E Denza, Diplomatic Law: Commentary on
rd
the Vienna Convention on Diplomatic Relations, (3 ed., Oxford University Press, 2008), 238,
242.
144
rd Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations,
(3 ed., Oxford University Press, 2008), 242 citing ‘Gagged man in diplomatic trunk’, The Times,
18 November 1964 [Annex 66]; ‘Italy charges U.A.R Embassy Men’, The Times, 23 November
1964 [Annex 67]; ‘Trunk man remanded in Israel’, The Times, 27 November 1964 [Annex 68].
145E Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations,
(3rded., Oxford University Press, 2008), 243.
146Comments and Observations of the Government of Switzerland, Yearbook of the International
Law Commission 1988 Volume II Part 1, A/CN.4/SER.A/1988/Add.1 (Part 1), 162. 4.16. This being so, it is respectfully submitted that the Court should reject
Timor-Leste’s broad and unqualified assertion of a right of confidentiality and
instead adopt a more measured approach consistent with the manner in which
other rights under international law are appropriately defined and qualified.
C. A NY RIGHT OF CONFIDENTIALITY OR NON -INTERFERENCE IS WAIVED WHERE THE
INFORMATION IS DISCLOSED BY THE RELEVANT PARTY
4.17. In defining the scope of any right to confidentiality of, or non -interference
in, communi cations between a State and its legal advisers, it is necessary to
consider the circumstances in which the right can be lost. A widely recognised
circumstance where the right of confidentiality is lost, or waived, is where the
relevant party discloses the substance of the confidential information to an
opposing party or the public. 164 If that occurs, the information has lost its
confidential character and the relevant party has waived its right to claim
confidentiality. The rationale is that a party should not be permitted to assert the
confidentiality of a communication where it has itself disclosed that
communication (other than in the course of the lawyer-client relationship).
4.18. This is consistent with the limitations on the right to confidentiality in
many domestic legal systems. The right of confidentiality is commonly waived
162F Ning and S Huawei, ‘Legal Privilege and Confidentiality in China’, in D Greenwald and
M Russenberger (eds.), Privilege and Confidentiality: An International Handbook (2 nded.,
Bloomsbury Professional, 2012), 87-88.
163A Bravo and V Arias, ‘Legal Privilege and Confidentiality in Spain’, in D Greenwald and
nd
M Russenberger (eds.), Privilege and Confidentiality: An International Handbook (2 ed.,
Bloomsbury Professional, 2012), 250 (referring to 19/2003 Act on Money Laundering (Spain)).
164
See, for example, International Bar Association, IBA Rules on the Taking of Evidence in
International Arbitration (2010), Article 9.3(d), which provides that in considering issues of legal
impediment or privilege, a relevant consideration for arbitral tribunals is ‘any possible waiver of
any applicable legal impediment or privilege by virtue of consent, earlier disclosure, affirmative
use of the Document, statement, oral communication or advice contained therein, or otherwise’.
The IBA Commentary states that ‘Article 9.3(d) encapsulates an important exception to privilege
in many countries, namely waiver’: International Bar Association, Commentary on the revised text
of the 2010 IBA Rules on the Taking of Evidence in International Arbitration, 25.
564.16. This being so, it is respectfully submitted that the Court should reject
Timor-Leste’s broad and unqualified assertion of a right of confidentiality and
instead adopt a more measured approach consistent with the manner in which
other rights under international law are appropriately defined and qualified.
C. A NY RIGHT OF CONFIDENTIALITY OR NON -INTERFERENCE IS WAIVED WHERE THE
INFORMATION IS DISCLOSED BY THE RELEVANT PARTY
4.17. In defining the scope of any right to confidentiality of, or non -interference
in, communi cations between a State and its legal advisers, it is necessary to
consider the circumstances in which the right can be lost. A widely recognised
circumstance where the right of confidentiality is lost, or waived, is where the
relevant party discloses the substance of the confidential information to an
opposing party or the public. 164 If that occurs, the information has lost its
confidential character and the relevant party has waived its right to claim
confidentiality. The rationale is that a party should not be permitted to assert the
confidentiality of a communication where it has itself disclosed that
communication (other than in the course of the lawyer-client relationship).
4.18. This is consistent with the limitations on the right to confidentiality in
many domestic legal systems. The right of confidentiality is commonly waived
162F Ning and S Huawei, ‘Legal Privilege and Confidentiality in China’, in D Greenwald and
M Russenberger (eds.), Privilege and Confidentiality: An International Handbook (2 nded.,
Bloomsbury Professional, 2012), 87-88.
163A Bravo and V Arias, ‘Legal Privilege and Confidentiality in Spain’, in D Greenwald and
nd
M Russenberger (eds.), Privilege and Confidentiality: An International Handbook (2 ed.,
Bloomsbury Professional, 2012), 250 (referring to 19/2003 Act on Money Laundering (Spain)).
164
See, for example, International Bar Association, IBA Rules on the Taking of Evidence in
International Arbitration (2010), Article 9.3(d), which provides that in considering issues of legal
impediment or privilege, a relevant consideration for arbitral tribunals is ‘any possible waiver of
any applicable legal impediment or privilege by virtue of consent, earlier disclosure, affirmative
use of the Document, statement, oral communication or advice contained therein, or otherwise’.
The IBA Commentary states that ‘Article 9.3(d) encapsulates an important exception to privilege
in many countries, namely waiver’: International Bar Association, Commentary on the revised text
of the 2010 IBA Rules on the Taking of Evidence in International Arbitration, 25. Section II. The ‘right of legal professional privilege’ is not a
recognised concept of international law
A. L EGAL PROFESSIONAL PRIVILEGE IS NOT A GENERAL PRINCIPLE OF LAW
4.19. Timor-Leste asserts that legal professional privilege is a general principle
175
of law within the meaning of Article 38(1)(c) of the Statute. But there is no
good evidence of this, and certainly no evidence that any such privilege has the
absolute character that Timor-Leste attributes to it.
4.20. General principles of law within the meaning of Article 38(1)(c) of the
Statute are generally derived from general principles of municipal jurisprudence,
appropriately adapted to the international law sphere to avoid ‘distortion’. 176
4.21. Timor-Leste relies heavily on third party reviews of domestic legislation in
its attempt to demonstrate that legal professional privilege is a general principle of
177
law. But the mere fact that a form of legal professional privilege exists in many
domestic legal systems is not sufficient to generate a new general principle of
international law, particularly one which would apply to relations between a State
and an individual legal adviser who is a national of , resident in, and subject to the
laws of, another State.
4.22. In addition, Timor-Leste makes no effort in its Memorial to explain how
the domestic law principles should be appropriately adapted to the international
law sphere without distortion, or how the specific and often complex procedures
in domestic legal systems for the claiming and testing of privilege should be
replicated under international law and before this Cour t. These are fundamental
175Timor-Leste, Memorial, [6.2], [6.6], [6.11].
176R Jennings and A Watts (eds.), Oppenheim’s International Law (9 ed., Oxford University
Press, 1992), 37. This interpretation of general principles of law is cited with approval in
J Crawford, Brownlie’s Principles of Public International Law (8d., Oxford University Press,
2012), 34-35; see also M N Shaw, International Law (6hed., Cambridge University Press, 2008),
98-100.
177Timor-Leste, Memorial, Annexes 22, 23 and 24.
58Section II. The ‘right of legal professional privilege’ is not a
recognised concept of international law
A. L EGAL PROFESSIONAL PRIVILEGE IS NOT A GENERAL PRINCIPLE OF LAW
4.19. Timor-Leste asserts that legal professional privilege is a general principle
175
of law within the meaning of Article 38(1)(c) of the Statute. But there is no
good evidence of this, and certainly no evidence that any such privilege has the
absolute character that Timor-Leste attributes to it.
4.20. General principles of law within the meaning of Article 38(1)(c) of the
Statute are generally derived from general principles of municipal jurisprudence,
appropriately adapted to the international law sphere to avoid ‘distortion’. 176
4.21. Timor-Leste relies heavily on third party reviews of domestic legislation in
its attempt to demonstrate that legal professional privilege is a general principle of
177
law. But the mere fact that a form of legal professional privilege exists in many
domestic legal systems is not sufficient to generate a new general principle of
international law, particularly one which would apply to relations between a State
and an individual legal adviser who is a national of , resident in, and subject to the
laws of, another State.
4.22. In addition, Timor-Leste makes no effort in its Memorial to explain how
the domestic law principles should be appropriately adapted to the international
law sphere without distortion, or how the specific and often complex procedures
in domestic legal systems for the claiming and testing of privilege should be
replicated under international law and before this Cour t. These are fundamental
175Timor-Leste, Memorial, [6.2], [6.6], [6.11].
176R Jennings and A Watts (eds.), Oppenheim’s International Law (9 ed., Oxford University
Press, 1992), 37. This interpretation of general principles of law is cited with approval in
J Crawford, Brownlie’s Principles of Public International Law (8d., Oxford University Press,
2012), 34-35; see also M N Shaw, International Law (6hed., Cambridge University Press, 2008),
98-100.
177Timor-Leste, Memorial, Annexes 22, 23 and 24. there is no relationship between the removal of the Materials and any current legal
proceedings.
4.26. In any case, the Tribunal in the Bank for International Settlements case did
not state that legal professional privilege was a general principle of law. To the
extent that the Tribunal recognised a privilege, it recognised that any privilege is
qualified and not absolute. In particular, the Tribunal rec ognised that any
privilege will be waived if the relevant information is voluntarily publicised by
the party claiming privilege, or in circumstances where the privilege is being
abused and used in ways that would unfairly benefit the party entitled to clai m the
181
privilege. The latter exception mirrors the ‘shield and sword’ exception
182
recognised in the domestic jurisprudence of the United States.
Libananco Holdings Co Limited v. Republic of Turkey
4.27. In Libananco, the primary concern raised by the claimant in vestor was the
prospective use by the respondent , Turkey, of intercepted communications in the
course of the arbitral proceedings. 183 There was no suggestion that the
interception of communications by the Turkish authorities was unlawful, or that
the act of interception itself was inconsistent with the investor’s claim to legal
professional privilege.
4.28. Once again, the Tribunal in Libananco did not recognise legal professional
privilege as a general principle of law. In fact, the Tribunal explicitly recognised
181
Dr Horst Reineccius et al v. Bank for International Settlements (Procedural Order No. 6 of 11
June 2002) (Permanent Court of Arbitration), 10.
182
U.S. v. Bilzerian, 926 F.2d 1285 (2nd Cir. 1991), 1292 [Annex 8]; see also Dr Horst Reineccius
et al v. Bank for International Settlements (Procedural Order No. 6) (Permanent Court of
Arbitration), 11 June 2002, 10.
183
Libananco Holdings Co. Limited v. Republic of Turkey (ICSID Case No. ARB/06/8, Decision
on Preliminary Issues of 23 June 2008), 16 -22.
60there is no relationship between the removal of the Materials and any current legal
proceedings.
4.26. In any case, the Tribunal in the Bank for International Settlements case did
not state that legal professional privilege was a general principle of law. To the
extent that the Tribunal recognised a privilege, it recognised that any privilege is
qualified and not absolute. In particular, the Tribunal rec ognised that any
privilege will be waived if the relevant information is voluntarily publicised by
the party claiming privilege, or in circumstances where the privilege is being
abused and used in ways that would unfairly benefit the party entitled to clai m the
181
privilege. The latter exception mirrors the ‘shield and sword’ exception
182
recognised in the domestic jurisprudence of the United States.
Libananco Holdings Co Limited v. Republic of Turkey
4.27. In Libananco, the primary concern raised by the claimant in vestor was the
prospective use by the respondent , Turkey, of intercepted communications in the
course of the arbitral proceedings. 183 There was no suggestion that the
interception of communications by the Turkish authorities was unlawful, or that
the act of interception itself was inconsistent with the investor’s claim to legal
professional privilege.
4.28. Once again, the Tribunal in Libananco did not recognise legal professional
privilege as a general principle of law. In fact, the Tribunal explicitly recognised
181
Dr Horst Reineccius et al v. Bank for International Settlements (Procedural Order No. 6 of 11
June 2002) (Permanent Court of Arbitration), 10.
182
U.S. v. Bilzerian, 926 F.2d 1285 (2nd Cir. 1991), 1292 [Annex 8]; see also Dr Horst Reineccius
et al v. Bank for International Settlements (Procedural Order No. 6) (Permanent Court of
Arbitration), 11 June 2002, 10.
183
Libananco Holdings Co. Limited v. Republic of Turkey (ICSID Case No. ARB/06/8, Decision
on Preliminary Issues of 23 June 2008), 16 -22. 4.31. In any event, the Court affirmed that the Commission in that case had a
lawful right to exercise its investigative powers as it c onsidered necessary, in
order to bring to light an infringement of the relevant competition rules. 188 It held
that the Commission’s lawful investigative power is ‘subject to a restriction
imposed by the need to protect confidentiality’ between the legal adv iser and
client.189 This balanced approach is far removed from Timor-Leste’s broad and
unqualified formulation of the principle of legal professional privilege.
European Court of Human Rights cases
4.32. Timor-Leste cites certain decisions by the European Court of Human
Rights to support its assertion that legal professional privilege is a general
principle of law.
(1) These decisions all concerned articles of the European Convention on
the Protection of Human Rights a nd Fundamental Freedoms
(‘European Convention’), 190including Article 6 (right to a fair trial)191
192
and Article 8 (respect for private and family life), none of which
purport to provide a right of legal professional privilege applicable
188AM&S Europe Ltd v. Commission of the European Communities, (Court of Justice of the
European Union, C-155/79, 18 May 1982), [17].
189
AM&S Europe Ltd v. Commission of the European Communities, (Court of Justice of the
European Union, C-155/79, 18 May 1982), [27].
190European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome,
4 November 1950, 213 UNTS 222 (entered into force 3 September 1953).
191Iliya Stefanov v. Bulgaria (European Court of Human Rights, Chamber, Application No.
65755/01, 22 May 2008).
192
Niemietz v. Germany (European Court of Human Rights, Chamber, Application No. 13710/88,
16 December 1992); Campbell v. United Kingdom (European Court of Human Rights, Chamber,
Application No. 13590/88, 25 March 1992) ; Elci and Others v. Turkey (European Court of Human
Rights, Chamber, Application No. 23145/93 and 25091/94, 13 November 2003 ; Istratii and others
v. Moldova (European Court of Human Rights, Chamber, Application No. 8721/05, 0805/05 and
8742/05, 27 March 2007); Golovan v. Ukraine (European Court of Human Rights, Chamber,
Application No. 41716/06, 5 July 2012); Michaud v. France (European Court of Human Rights,
Chamber, Application No. 12323/11, 6 December 2012) ; Iliya Stefanov v. Bulgaria (European
Court of Human Rights, Chamber, Application No. 65755/01, 22 May 2008).
624.31. In any event, the Court affirmed that the Commission in that case had a
lawful right to exercise its investigative powers as it c onsidered necessary, in
order to bring to light an infringement of the relevant competition rules. 188 It held
that the Commission’s lawful investigative power is ‘subject to a restriction
imposed by the need to protect confidentiality’ between the legal adv iser and
client.189 This balanced approach is far removed from Timor-Leste’s broad and
unqualified formulation of the principle of legal professional privilege.
European Court of Human Rights cases
4.32. Timor-Leste cites certain decisions by the European Court of Human
Rights to support its assertion that legal professional privilege is a general
principle of law.
(1) These decisions all concerned articles of the European Convention on
the Protection of Human Rights a nd Fundamental Freedoms
(‘European Convention’), 190including Article 6 (right to a fair trial)191
192
and Article 8 (respect for private and family life), none of which
purport to provide a right of legal professional privilege applicable
188AM&S Europe Ltd v. Commission of the European Communities, (Court of Justice of the
European Union, C-155/79, 18 May 1982), [17].
189
AM&S Europe Ltd v. Commission of the European Communities, (Court of Justice of the
European Union, C-155/79, 18 May 1982), [27].
190European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome,
4 November 1950, 213 UNTS 222 (entered into force 3 September 1953).
191Iliya Stefanov v. Bulgaria (European Court of Human Rights, Chamber, Application No.
65755/01, 22 May 2008).
192
Niemietz v. Germany (European Court of Human Rights, Chamber, Application No. 13710/88,
16 December 1992); Campbell v. United Kingdom (European Court of Human Rights, Chamber,
Application No. 13590/88, 25 March 1992) ; Elci and Others v. Turkey (European Court of Human
Rights, Chamber, Application No. 23145/93 and 25091/94, 13 November 2003 ; Istratii and others
v. Moldova (European Court of Human Rights, Chamber, Application No. 8721/05, 0805/05 and
8742/05, 27 March 2007); Golovan v. Ukraine (European Court of Human Rights, Chamber,
Application No. 41716/06, 5 July 2012); Michaud v. France (European Court of Human Rights,
Chamber, Application No. 12323/11, 6 December 2012) ; Iliya Stefanov v. Bulgaria (European
Court of Human Rights, Chamber, Application No. 65755/01, 22 May 2008). cannot be abused by States or produce a distorted effect on other rights under
international law.
4.35. Timor-Leste adopts an extraordinarily broad formulation of legal
professional privilege, which it essentially asserts as an unqualified protection
from interference in any and all communications between a State and its legal
193
advisers.
4.36. Such a broad and unqualified formulation cannot be supp orted. None of
the domestic laws cited by Timor-Leste define legal professional privilege in these
terms. None of the laws cited are without important caveats on the scope and
content of the privilege, including the circumstances in which it can be asser ted.
This is shown in Australia’s survey of approaches taken under domestic law to
issues of legal professional privilege 194and supported in the reviews of domestic
law attached to Timor-Leste’s Memorial. 195
4.37. In fact, most domestic legal systems narrow the scope of communications
which are privileged. For example, in Australia and many other States, privilege
does not apply to all communications made between a legal adviser and client. 196
Rather, communications will only be privileged where the communication was
made, or the document was prepared, in connection with the giving or obtaining
of legal advice or in the provision of legal services. 197
4.38. The Court should take a similarly measured approach to recognising a ny
such principle at international law. This is particularly the case given that there
193
Timor-Leste, Memorial, [6.1], [6.2].
194Table: Summary of National Laws on Legal Professional Privilege/Confidentiality: Scope and
Exceptions [Annex 51].
195Timor-Leste, Memorial, Annexes 22, 23 and 24.
196
Table: Summary of National Laws on Legal Professional Privilege/Confidentiality: Scope and
Exceptions [Annex 51].
197
See, for example Esso Australia Resources Ltd v. Commission of Taxation (1999) 201 CLR 49,
73 [Annex 9]; see also Evidence Act 1995 (Cth), ss 118-120 [Annex 44].
64cannot be abused by States or produce a distorted effect on other rights under
international law.
4.35. Timor-Leste adopts an extraordinarily broad formulation of legal
professional privilege, which it essentially asserts as an unqualified protection
from interference in any and all communications between a State and its legal
193
advisers.
4.36. Such a broad and unqualified formulation cannot be supp orted. None of
the domestic laws cited by Timor-Leste define legal professional privilege in these
terms. None of the laws cited are without important caveats on the scope and
content of the privilege, including the circumstances in which it can be asser ted.
This is shown in Australia’s survey of approaches taken under domestic law to
issues of legal professional privilege 194 and supported in the reviews of domestic
law attached to Timor-Leste’s Memorial. 195
4.37. In fact, most domestic legal systems narrow the scope of communications
which are privileged. For example, in Australia and many other States, privilege
does not apply to all communications made between a legal adviser and client. 196
Rather, communications will only be privileged where the communication was
made, or the document was prepared, in connection with the giving or obtaining
of legal advice or in the provision of legal services. 197
4.38. The Court should take a similarly measured approach to recognising a ny
such principle at international law. This is particularly the case given that there
193
Timor-Leste, Memorial, [6.1], [6.2].
194Table: Summary of National Laws on Legal Professional Privilege/Confidentiality: Scope and
Exceptions [Annex 51].
195Timor-Leste, Memorial, Annexes 22, 23 and 24.
196
Table: Summary of National Laws on Legal Professional Privilege/Confidentiality: Scope and
Exceptions [Annex 51].
197
See, for example Esso Australia Resources Ltd v. Commission of Taxation (1999) 201 CLR 49,
73 [Annex 9]; see also Evidence Act 1995 (Cth), ss 118-120 [Annex 44]. This is a widely accepted proposition in the domestic law of many
jurisdictions.0
4.41. This is also reflected in the Bank for International Settlements case, where
the Tribunal recognised that legal professional privilege will be waived in
circumstances where the privil ege is being abused and used in ways that would
201
unfairly benefit the party entitled to claim the privilege.
4.42. There is also a second, related concern . An asserted right enjoyed by one
State at international law must be considered in light of the rights enjoyed by
other States. It follows that any right of a foreign State to claim legal professional
privilege must be interpreted with regard to the prevailing right of a forum State to
enforce its domestic criminal laws against its nationals within its territory where
the communications further or facilitate a criminal offence. When foreign States
choose to engage legal counsel overseas, they must respect the domesti c laws,
including domestic criminal law, of the State in whose jurisdiction they have
chosen to seek such advice. This was expressly recognised by the Tribunal in
Libananco, where the Tribunal affirmed the ‘right and duty’ of States to ‘pursue
the commission of serious crime’. 202
D. T HE CRIMINAL OFFENCE EXCEPTION IS WIDELY RECOGNISED AS AN EXCEPTION
TO LEGAL PROFESSIONAL PRIVILEGE
4.43. Consistent with the above approach, it is important to identify the
applicable exceptions which should apply with respect to any purported right of
legal professional privilege found to exist at international law . Such a
200
James Spigelman, ‘Report on Inadvertent Disclosure of Privileged Documents’, Arbitration
under Chapter II of the North American Free Trade Agreement and the UNCITRAL Arbitration
Rules 1976 between St Marys VCNA, LLC v. Government of Canada, 27 December 2012, 4.
201
Dr Horst Reineccius et al v. Bank for International Settlements (Procedural Order No. 6 of 11
June 2002) (Permanent Court of Arbitration), 10.
202Libananco Holdings Co. Limited v. Republic of Turkey (ICSID Case No. ARB/06/8, Decision
on Preliminary Issues of 23 June 2008), [79].
66 This is a widely accepted proposition in the domestic law of many
jurisdictions.0
4.41. This is also reflected in the Bank for International Settlements case, where
the Tribunal recognised that legal professional privilege will be waived in
circumstances where the privil ege is being abused and used in ways that would
201
unfairly benefit the party entitled to claim the privilege.
4.42. There is also a second, related concern . An asserted right enjoyed by one
State at international law must be considered in light of the rights enjoyed by
other States. It follows that any right of a foreign State to claim legal professional
privilege must be interpreted with regard to the prevailing right of a forum State to
enforce its domestic criminal laws against its nationals within its territory where
the communications further or facilitate a criminal offence. When foreign States
choose to engage legal counsel overseas, they must respect the domesti c laws,
including domestic criminal law, of the State in whose jurisdiction they have
chosen to seek such advice. This was expressly recognised by the Tribunal in
Libananco, where the Tribunal affirmed the ‘right and duty’ of States to ‘pursue
the commission of serious crime’. 202
D. T HE CRIMINAL OFFENCE EXCEPTION IS WIDELY RECOGNISED AS AN EXCEPTION
TO LEGAL PROFESSIONAL PRIVILEGE
4.43. Consistent with the above approach, it is important to identify the
applicable exceptions which should apply with respect to any purported right of
legal professional privilege found to exist at international law . Such a
200
James Spigelman, ‘Report on Inadvertent Disclosure of Privileged Documents’, Arbitration
under Chapter II of the North American Free Trade Agreement and the UNCITRAL Arbitration
Rules 1976 between St Marys VCNA, LLC v. Government of Canada, 27 December 2012, 4.
201
Dr Horst Reineccius et al v. Bank for International Settlements (Procedural Order No. 6 of 11
June 2002) (Permanent Court of Arbitration), 10.
202Libananco Holdings Co. Limited v. Republic of Turkey (ICSID Case No. ARB/06/8, Decision
on Preliminary Issues of 23 June 2008), [79]. a just outcome. 211 It should not afford protection to a client or its legal adviser
where there is a serious breach of domestic criminal laws, and ca nnot be allowed
to prevent the enforcement of those laws.
4.46. For these reasons, the criminal offence exception is a proper exception to
any purported right of legal professional privilege at international law. This is
consistent with the widespread recognition of the exception in a range of domestic
systems, and other circumstances in which a State voluntarily accepts an
obligation to uphold the domestic laws of another State – including, for example,
where a State enters into a private commercial contract governed by the domestic
212
laws of another State and is consequently obliged to respect those laws.
4.47. For its part, Timor-Leste does not appear to admit or acknowledge any
exception to the claimed principle of legal professional privilege. Such an
unqualified application of the principle is not recognised in any domestic legal
system which upholds legal professional privilege, and should not be recognised
in any formulation of the principle at the international level.
Section III. Timor-Leste’s claims must fail
A. T HERE IS NO ESTABLISHED RIGHT OF CONFIDENTIALITY OR PRIVILEGE IN THE
M ATERIALS
4.48. As set out in Chapter 3, there is significant uncertainty about the character
of the Materials. On the basis of the available evidence, in respect of
Timor-Leste’s purport ed claims of confidentiality or privilege, the Materials
appear to fall into the following categories:
211
B Thanki QC (ed.), The Law of Privilege (Oxford University Press, 2011), 198 [Annex 30];
J Auburn, Legal Professional Privilege: Law and Theory (Hart Publishing, 2000), 159
[Annex 31].
21H Fox and P Webb, The Law of State Immunity (3 ed., Oxford University Press, 2013),
402-404.
68a just outcome. 211 It should not afford protection to a client or its legal adviser
where there is a serious breach of domestic criminal laws, and ca nnot be allowed
to prevent the enforcement of those laws.
4.46. For these reasons, the criminal offence exception is a proper exception to
any purported right of legal professional privilege at international law. This is
consistent with the widespread recognition of the exception in a range of domestic
systems, and other circumstances in which a State voluntarily accepts an
obligation to uphold the domestic laws of another State – including, for example,
where a State enters into a private commercial contract governed by the domestic
212
laws of another State and is consequently obliged to respect those laws.
4.47. For its part, Timor-Leste does not appear to admit or acknowledge any
exception to the claimed principle of legal professional privilege. Such an
unqualified application of the principle is not recognised in any domestic legal
system which upholds legal professional privilege, and should not be recognised
in any formulation of the principle at the international level.
Section III. Timor-Leste’s claims must fail
A. T HERE IS NO ESTABLISHED RIGHT OF CONFIDENTIALITY OR PRIVILEGE IN THE
M ATERIALS
4.48. As set out in Chapter 3, there is significant uncertainty about the character
of the Materials. On the basis of the available evidence, in respect of
Timor-Leste’s purport ed claims of confidentiality or privilege, the Materials
appear to fall into the following categories:
211
B Thanki QC (ed.), The Law of Privilege (Oxford University Press, 2011), 198 [Annex 30];
J Auburn, Legal Professional Privilege: Law and Theory (Hart Publishing, 2000), 159
[Annex 31].
212H Fox and P Webb, The Law of State Immunity (3 ed., Oxford University Press, 2013),
402-404. (3) Item 002: ACER Aspire Laptop black, bearing S/N 11600300725 and
power supply. Timor-Leste concedes that the Laptop is th e property
of Mr Collaery, and that it is likely that the Laptop contains a range of
documents and other correspondence for a number of Mr Collaery’s
other clients. 215 Australia has received a letter from at least one of
Mr Collaery’s clients concerning the status of documents held by
Mr Collaery, over which the client asserts claims to legal professional
216
privilege. Accordingly, in the absence of further substantiation,
Timor-Leste cannot make an ambit claim for confidentiality or
privilege over the entirety of the Laptop’s contents. Delivering up the
Laptop to Timor-Leste (as sought by Timor-Leste in its final
217
submissions) would jeopardise any claims by Mr Collaery’s other
clients in documents which are held on the Laptop.
(4) Item 003: 4GB USB Verbatim thum b drive, black in colour,
NG04G2513008819DML. Timor-Leste concedes that it does not
know whether any of the documents on this USB relate to
218
Timor-Leste, and also concedes that some of the documents may
219
belong to Mr Collaery’s other clients. In the abse nce of any
certainty that the documents on the USB relate to Timor-Leste,
Timor-Leste cannot make an ambit claim for confidentiality or
privilege over the USB. In addition, delivering up this item to
215
Timor-Leste, Memorial, [4.23(a)].
216Letter from Mr Collaery’s client to Senator the Hon. George Brandis QC, Attorney-General of
Australia, 12 December 2013 [redacted] [Annex 88].
217Timor-Leste, Memorial, Final Submissions, (3).
218
Timor-Leste, Memorial, [4.13] – ‘a USB stick, which may contain matters relating to
Timor-Leste’ (emphasis added); see also, Timor-Leste, Memorial, [4.23(b)].
219Timor-Leste, Memorial, [4.23(b)].
70 (3) Item 002: ACER Aspire Laptop black, bearing S/N 11600300725 and
power supply. Timor-Leste concedes that the Laptop is th e property
of Mr Collaery, and that it is likely that the Laptop contains a range of
documents and other correspondence for a number of Mr Collaery’s
other clients.215 Australia has received a letter from at least one of
Mr Collaery’s clients concerning the status of documents held by
Mr Collaery, over which the client asserts claims to legal professional
216
privilege. Accordingly, in the absence of further substantiation,
Timor-Leste cannot make an ambit claim for confidentiality or
privilege over the entirety of the Laptop’s contents. Delivering up the
Laptop to Timor-Leste (as sought by Timor-Leste in its final
217
submissions) would jeopardise any claims by Mr Collaery’s other
clients in documents which are held on the Laptop.
(4) Item 003: 4GB USB Verbatim thum b drive, black in colour,
NG04G2513008819DML. Timor-Leste concedes that it does not
know whether any of the documents on this USB relate to
218
Timor-Leste, and also concedes that some of the documents may
219
belong to Mr Collaery’s other clients. In the abse nce of any
certainty that the documents on the USB relate to Timor-Leste,
Timor-Leste cannot make an ambit claim for confidentiality or
privilege over the USB. In addition, delivering up this item to
215
Timor-Leste, Memorial, [4.23(a)].
216Letter from Mr Collaery’s client to Senator the Hon. George Brandis QC, Attorney-General of
Australia, 12 December 2013 [redacted] [Annex 88].
217Timor-Leste, Memorial, Final Submissions, (3).
218
Timor-Leste, Memorial, [4.13] – ‘a USB stick, which may contain matters relating to
Timor-Leste’ (emphasis added); see also, Timor-Leste, Memorial, [4.23(b)].
219Timor-Leste, Memorial, [4.23(b)]. Materials which may be subject to a claim of confidentiality or legal privilege by
Timor-Leste
222
4.49. In respect of the other Material s, Timor-Leste has broadly asserted that
based on their descriptions, the items are legal advice provided to Timor-Leste
223
and hence subject to the asserted legal professional privilege. This may be
correct. However, it could only be confirmed by inspecting the documents to
determine whether they were communi cations between Timor-Leste and
Mr Collaery in his capacity as Timor-Leste’s legal adviser, being legal advice or
legal communications relating to the course of anticipated or actual litigation, and
that no relevant exceptions apply (including the criminal offence exception or
waiver by Timor-Leste).
4.50. Finally, Australia makes the following observations with respect to
LPP002 and LPP003:
(1) LPP002: Document titled ‘Memorandum to Counsel’ (Sealed in
yellow envelope). There is no reference in the title to any matter
relating to Timor-Leste: thus even if it is legal advice, the identity of
the client is uncertain.
(2) LPP003: Document entitled ‘Timor Sea Treaty’, Dili 20 May 2002
(Sealed in yellow envelope). There is nothing in the title of the item to
indicate whether it pertains to legal advice or other confidential
communications between Timor-Leste and its legal advisers. It may
well simply be a copy of the treaty.
222
Items LPP001, LPP002, LPP003, LPP004, LPP005, LPP007, LPP008, LPP009, LPP010,
LPP011 and LPP015.
223Timor-Leste, Memorial, [4.23] and [6.25].
72Materials which may be subject to a claim of confidentiality or legal privilege by
Timor-Leste
222
4.49. In respect of the other Material s, Timor-Leste has broadly asserted that
based on their descriptions, the items are legal advice provided to Timor-Leste
223
and hence subject to the asserted legal professional privilege. This may be
correct. However, it could only be confirmed by inspecting the documents to
determine whether they were communi cations between Timor-Leste and
Mr Collaery in his capacity as Timor-Leste’s legal adviser, being legal advice or
legal communications relating to the course of anticipated or actual litigation, and
that no relevant exceptions apply (including the criminal offence exception or
waiver by Timor-Leste).
4.50. Finally, Australia makes the following observations with respect to
LPP002 and LPP003:
(1) LPP002: Document titled ‘Memorandum to Counsel’ (Sealed in
yellow envelope). There is no reference in the title to any matter
relating to Timor-Leste: thus even if it is legal advice, the identity of
the client is uncertain.
(2) LPP003: Document entitled ‘Timor Sea Treaty’, Dili 20 May 2002
(Sealed in yellow envelope). There is nothing in the title of the item to
indicate whether it pertains to legal advice or other confidential
communications between Timor-Leste and its legal advisers. It may
well simply be a copy of the treaty.
222
Items LPP001, LPP002, LPP003, LPP004, LPP005, LPP007, LPP008, LPP009, LPP010,
LPP011 and LPP015.
223Timor-Leste, Memorial, [4.23] and [6.25]. as set out in detail in Australia’s Written Observations during the provisional
measures phase. 225
4.53. The effect of those provisions is that a document which contains
unlawfully disclosed national security information is the product of a cr iminal
offence under Australian law and that the transmission of that document is a
further offence under Australian law.
4.54. As set out above, items LPP012 and LPP014 have each been described by
Timor-Leste as ‘the draft of a statement of a third party take n for legal
226
proceedings involving Timor-Leste’. Based on this information, and the titles
of the items, it is reasonable to conclude that these items are drafts or final
versions of the affidavit of ‘K’ submitted by Timor-Leste in the Arbitration.
It follows that those items are each documents which purport to contain national
security information unlawfully disclosed by ‘K’, and are therefore the product of
a criminal offence.
4.55. Indeed, this was confirmed by Counsel for Timor-Leste at the First
Procedural Meeting in the Arbitration on 5 December 2013, when he stated with
reference to ‘K’, that ‘it may be the case … that the disclosure at any point of a
written statement from the witness would have legal significance as an act of
227
publication’ and that it ‘ is possible that th at disclosure may evidence an
225
Australia, Written Observations on Timor-Leste’s Request for Provisional Measures,
13 January 2014, [55].
226Timor-Leste, Memorial, [4.23(n) and (p)].
227Permanent Court of Arbitration, ‘Transcript of First Procedural Meeting between Timor-Leste
and Australia at The Hague’, Arbitration under the Timor Sea Treaty, 5 December 2013, 58 (lines
1-6) (Lowe) [Annex 85].
74as set out in detail in Australia’s Written Observations during the provisional
measures phase. 225
4.53. The effect of those provisions is that a document which contains
unlawfully disclosed national security information is the product of a cr iminal
offence under Australian law and that the transmission of that document is a
further offence under Australian law.
4.54. As set out above, items LPP012 and LPP014 have each been described by
Timor-Leste as ‘the draft of a statement of a third party take n for legal
226
proceedings involving Timor-Leste’. Based on this information, and the titles
of the items, it is reasonable to conclude that these items are drafts or final
versions of the affidavit of ‘K’ submitted by Timor-Leste in the Arbitration.
It follows that those items are each documents which purport to contain national
security information unlawfully disclosed by ‘K’, and are therefore the product of
a criminal offence.
4.55. Indeed, this was confirmed by Counsel for Timor-Leste at the First
Procedural Meeting in the Arbitration on 5 December 2013, when he stated with
reference to ‘K’, that ‘it may be the case … that the disclosure at any point of a
written statement from the witness would have legal significance as an act of
227
publication’ and that it ‘ is possible that th at disclosure may evidence an
225
Australia, Written Observations on Timor-Leste’s Request for Provisional Measures,
13 January 2014, [55].
226Timor-Leste, Memorial, [4.23(n) and (p)].
227Permanent Court of Arbitration, ‘Transcript of First Procedural Meeting between Timor-Leste
and Australia at The Hague’, Arbitration under the Timor Sea Treaty, 5 December 2013, 58 (lines
1-6) (Lowe) [Annex 85]. (1) On 29 May 2013, in an interview with The Australian, Mr Collaery
gave details of how the alleged operation was ordered and carried out:
“That treaty was negotiated in a number of sessions, and in negotiating … in
October 2004, Australia clandestinely monitored the negotiation rooms occupied
by the other party, ” Mr Collaery told The Australian. “So it was a Watergate
situation. They broke in and they bugged, in a total breach of sovereignty, the
cabinet room, the ministerial offices of then prime minister (Mari) Alkitiri and
his government. They placed clandestine listening devices in the minister ial
conference room, we call it a cabinet room.”
[…]
Mr Collaery claims that Mr Downer directly authorised the operation to listen
230
covertly to the negotiations in a cabinet room built with Australian aid.
(2) On 3 December 2013, in an interview with the A ustralian
Broadcasting Corporation, Mr Collaery gave details of the purported
evidence of ‘K’, including the following specific details:
BERNARD COLLAERY: This Director, newly arrived Director, sent a technical
team into Dili to liaise with an Australian aid construction team that were
effecting renovations in the nation -building idea in East Timor: renovations to
rooms that were to be used by the Timorese prime minister and his colleagues.
Eventually, through a series of clandestine missions, bugs were inserted into a
hollow wall and, for the actual negotiations that took place, there was a listening
231
post. A transcript was carried across town.
(3) On 4 December 2013, in an interview with the A ustralian
Broadcasting Corporation, Mr Collaery gave further details of the
purported evidence of ‘K’, including the following specific details
regarding the alleged operation and extract from the affidavit of ‘K’:
BERNARD COLLAERY, LAWYER FOR EAST TIMOR : The newly -arrived
director of ASIS called the head of the technical area of ASIS to a meeting, and
there, with his deputy, who I cannot name, he was instructed to undertake a
230L Shanahan, ‘Aussie spies accused of bugging Timor cabinet’, The Australian, 29 May 2013
(accessed at < http://www.theaustralian.com.au/national-affairs/policy/aussie-spies-ac…-
bugging-timor-cabinet/story-fn59nm2j-1226652599040> on 20 July 2014).
231E Alberici, ‘Bernard Collaery, Lawyer for East Timor’, Lateline, Australian Broadcasting
Corporation, 3 December 2013.
76 (1) On 29 May 2013, in an interview with The Australian, Mr Collaery
gave details of how the alleged operation was ordered and carried out:
“That treaty was negotiated in a number of sessions, and in negotiating … in
October 2004, Australia clandestinely monitored the negotiation rooms occupied
by the other party, ” Mr Collaery told The Australian. “So it was a Watergate
situation. They broke in and they bugged, in a total breach of sovereignty, the
cabinet room, the ministerial offices of then prime minister (Mari) Alkitiri and
his government. They placed clandestine listening devices in the minister ial
conference room, we call it a cabinet room.”
[…]
Mr Collaery claims that Mr Downer directly authorised the operation to listen
230
covertly to the negotiations in a cabinet room built with Australian aid.
(2) On 3 December 2013, in an interview with the A ustralian
Broadcasting Corporation, Mr Collaery gave details of the purported
evidence of ‘K’, including the following specific details:
BERNARD COLLAERY: This Director, newly arrived Director, sent a technical
team into Dili to liaise with an Australian aid construction team that were
effecting renovations in the nation -building idea in East Timor: renovations to
rooms that were to be used by the Timorese prime minister and his colleagues.
Eventually, through a series of clandestine missions, bugs were inserted into a
hollow wall and, for the actual negotiations that took place, there was a listening
231
post. A transcript was carried across town.
(3) On 4 December 2013, in an interview with the A ustralian
Broadcasting Corporation, Mr Collaery gave further details of the
purported evidence of ‘K’, including the following specific details
regarding the alleged operation and extract from the affidavit of ‘K’:
BERNARD COLLAERY, LAWYER FOR EAST TIMOR : The newly -arrived
director of ASIS called the head of the technical area of ASIS to a meeting, and
there, with his deputy, who I cannot name, he was instructed to undertake a
230L Shanahan, ‘Aussie spies accused of bugging Timor cabinet’, The Australian, 29 May 2013
(accessed at < http://www.theaustralian.com.au/national-affairs/policy/aussie-spies-ac…-
bugging-timor-cabinet/story-fn59nm2j-1226652599040> on 20 July 2014).
231E Alberici, ‘Bernard Collaery, Lawyer for East Timor’, Lateline, Australian Broadcasting
Corporation, 3 December 2013. 4.61. The ‘information [which] was known’ to Mr Collaery and which
Mr Collaery then unlawfully chose to make public was obtained from one source
only – the evidence of ‘K’. It is the same evidence which Timor-Leste arranged
to be documented in affidavit form and placed before the Arbitral Tribunal in the
Arbitration. It is the same evidence which Timor-Leste has made public on
repeated occasions since at least May 2013, which in turn has generated further
publicity and repeating of the allegations in the evidence of ‘K’. 234 It is the same
evidence over which Timor-Leste now seeks to assert a right of confidentiality.
4.62. It follows that Timor-Leste has lost any right of confidentiality it may ever
have had over Materials which contain the evidence of ‘K’. This includes
LPP012, LPP014 and any other Materials to the extent to wh ich they contain
unlawfully disclosed national security information from ‘K’.
4.63. Timor-Leste’s decision to disclose national security information through
the media is also fatal to any claim it may have that it is prejudiced by the
disclosure of Items LPP012 and LPP014. Indeed, having disclosed Australia’s
confidential information publicly, Timor-Leste now attempts to claim
incongruously that the same information is Timor-Leste’s own and should be
protected. This argument cannot be sustained on the facts known to the Court.
Timor-Leste has lost any privilege in certain Materials due to the criminal offence
exception
4.64. The attempt by Timor-Leste to assert privilege over Materials which
contain national security information unlawfully disclosed by ‘K’ is precisely the
type of situation where the criminal offence exception applies, and the claimed
234For example: P Cleary, ‘How Canberra and Woodside ‘bugged’ Timor PM to strip fledgling
nation of oil billions’, The Australian, 6 January 2014 (accessed at <http://www.theaustralian.com
.au/national-affairs/policy/how-canberra-and-woodside-bugged-timor-pm-to-strip-fledgling-
nation-of-oil-billions/story-fn59nm2j-1226795417836> on 20 July 2014); J Pearlman, ‘Australia’s
Timor spying row deepens’, Straits Times, 10 January 2014 (accessed at <http://www.straitstimes.
com/st/print/1937650> on 20 July 2014).
784.61. The ‘information [which] was known’ to Mr Collaery and which
Mr Collaery then unlawfully chose to make public was obtained from one source
only – the evidence of ‘K’. It is the same evidence which Timor-Leste arranged
to be documented in affidavit form and placed before the Arbitral Tribunal in the
Arbitration. It is the same evidence which Timor-Leste has made public on
repeated occasions since at least May 2013, which in turn has generated further
publicity and repeating of the allegations in the evidence of ‘K’. 234 It is the same
evidence over which Timor-Leste now seeks to assert a right of confidentiality.
4.62. It follows that Timor-Leste has lost any right of confidentiality it may ever
have had over Materials which contain the evidence of ‘K’. This includes
LPP012, LPP014 and any other Materials to the extent to wh ich they contain
unlawfully disclosed national security information from ‘K’.
4.63. Timor-Leste’s decision to disclose national security information through
the media is also fatal to any claim it may have that it is prejudiced by the
disclosure of Items LPP012 and LPP014. Indeed, having disclosed Australia’s
confidential information publicly, Timor-Leste now attempts to claim
incongruously that the same information is Timor-Leste’s own and should be
protected. This argument cannot be sustained on the facts known to the Court.
Timor-Leste has lost any privilege in certain Materials due to the criminal offence
exception
4.64. The attempt by Timor-Leste to assert privilege over Materials which
contain national security information unlawfully disclosed by ‘K’ is precisely the
type of situation where the criminal offence exception applies, and the claimed
234For example: P Cleary, ‘How Canberra and Woodside ‘bugged’ Timor PM to strip fledgling
nation of oil billions’, The Australian, 6 January 2014 (accessed at <http://www.theaustralian.com
.au/national-affairs/policy/how-canberra-and-woodside-bugged-timor-pm-to-strip-fledgling-
nation-of-oil-billions/story-fn59nm2j-1226795417836> on 20 July 2014); J Pearlman, ‘Australia’s
Timor spying row deepens’, Straits Times, 10 January 2014 (accessed at <http://www.straitstimes.
com/st/print/1937650> on 20 July 2014). safeguards necessary to preserve any purported rights of confidentiality or
236
privilege.
4.68. The Attorney-General’s undertakings of 4, 19 and 23 December 2013 and
21 January 2014, freely given, comprise a package of undertakings which are
comprehensive and respect any claim to privilege which may properly be brought
237
by Timor-Leste, as described in detail in Chapter 3 . Pursuant to the
undertakings, and the orders of the Court, the documents were sealed and will
remain so until the conclusion of these proceedings and final judgment of the
Court.
4.69. Accordingly, any confidentiality or privilege remains intact, and no harm
could result to Timor-Leste, given that no Australian government official or
Counsel involved in the defence of Australia in the A rbitration, or in the
proceedings before this Court, has seen the Materials. There is no risk that the
Materials will be opened or used by members of Australia’s defence teams in
these proceedings or the Arbitration. There is also no risk that the Materi als will
be used for any purpose relating to the exploitation of Timor Sea resources, or any
related negotiations, as set out explicitly in the Attorney -General’s undertaking of
21 January 2014. In so doing, Australia has preserved Timor-Leste’s claims to
confidentiality and privilege, and its opportunity to claim privilege before an
Australian court.
236See Chapter 3 above.
237
Senator the Hon. George Brandis QC, Attorney-General, ‘Ministerial Statement: Execution of
ASIO Search Warrants’, 4 December 2013 [Annex 52]; Senator the Hon. George Brandis QC,
Attorney-General of Australia, ‘Written Undertaking’, Arbitration under the Timor Sea Treaty,
19 December 2013 [Annex 74]; Letter from Senator the Hon. George Brandis QC, Attorney-
General of Australia, to Mr David Irvine AO, Director-General of Security, 23 December 2013
[Annex 53]; Senator the Hon. George Brandis QC, Attorney-General of Australia, ‘Written
Undertaking’, Questions relating to the Seizure and Detention of Certain Documents and Data
(Timor-Leste v. Australia), 21 January 2014 [Annex 54].
80safeguards necessary to preserve any purported rights of confidentiality or
236
privilege.
4.68. The Attorney-General’s undertakings of 4, 19 and 23 December 2013 and
21 January 2014, freely given, comprise a package of undertakings which are
comprehensive and respect any claim to privilege which may properly be brought
237
by Timor-Leste, as described in detail in Chapter 3 . Pursuant to the
undertakings, and the orders of the Court, the documents were sealed and will
remain so until the conclusion of these proceedings and final judgment of the
Court.
4.69. Accordingly, any confidentiality or privilege remains intact, and no harm
could result to Timor-Leste, given that no Australian government official or
Counsel involved in the defence of Australia in the A rbitration, or in the
proceedings before this Court, has seen the Materials. There is no risk that the
Materials will be opened or used by members of Australia’s defence teams in
these proceedings or the Arbitration. There is also no risk that the Materi als will
be used for any purpose relating to the exploitation of Timor Sea resources, or any
related negotiations, as set out explicitly in the Attorney -General’s undertaking of
21 January 2014. In so doing, Australia has preserved Timor-Leste’s claims to
confidentiality and privilege, and its opportunity to claim privilege before an
Australian court.
236See Chapter 3 above.
237
Senator the Hon. George Brandis QC, Attorney-General, ‘Ministerial Statement: Execution of
ASIO Search Warrants’, 4 December 2013 [Annex 52]; Senator the Hon. George Brandis QC,
Attorney-General of Australia, ‘Written Undertaking’, Arbitration under the Timor Sea Treaty,
19 December 2013 [Annex 74]; Letter from Senator the Hon. George Brandis QC, Attorney-
General of Australia, to Mr David Irvine AO, Director-General of Security, 23 December 2013
[Annex 53]; Senator the Hon. George Brandis QC, Attorney-General of Australia, ‘Written
Undertaking’, Questions relating to the Seizure and Detention of Certain Documents and Data
(Timor-Leste v. Australia), 21 January 2014 [Annex 54]. Arbitration or these proceedings. In addition, Australia has repeatedly invited
242
Timor-Leste to test its claim to privilege under Australian law.
4.73. Australia also rejects Timor-Leste’s implied assertion that Australia has
acted contrary to good faith in the Arbitration. Notwithstanding the unlawful
disclosures made by ‘K’ and Mr Collaery in the media and in the course of the
Arbitration, Australia has taken great care to ensure that it has pursued its
available rights through the proper procedural channels in the Arbitration. In
particular, Australia brought an application for the exclusion of the evidence of
‘K’, and has complied in full with the Arbitral Tribunal’s order that the evi dence
be admitted on a provisional basis only and a decision on its admissibility made
after the oral hearing (from 27 September to 2 October 2014 ). In these
circumstances, Australia has demonstrably acted in good faith and there is no
prejudice to Timor-Leste in the Arbitration which has or could result from the
removal of the Materials.
24Letter from the Australian Government Solicitor to DLA Piper, 16 December 2013 [Annex 55];
Letter from the Australian Government Solicitor to DLA Piper, 19 December 2013 [Annex 56];
Letter from the Australian Government Solicitor to DLA Piper, 24 December 2013 [Annex 57].
82Arbitration or these proceedings. In addition, Australia has repeatedly invited
242
Timor-Leste to test its claim to privilege under Australian law.
4.73. Australia also rejects Timor-Leste’s implied assertion that Australia has
acted contrary to good faith in the Arbitration. Notwithstanding the unlawful
disclosures made by ‘K’ and Mr Collaery in the media and in the course of the
Arbitration, Australia has taken great care to ensure that it has pursued its
available rights through the proper procedural channels in the Arbitration. In
particular, Australia brought an application for the exclusion of the evidence of
‘K’, and has complied in full with the Arbitral Tribunal’s order that the evi dence
be admitted on a provisional basis only and a decision on its admissibility made
after the oral hearing (from 27 September to 2 October 2014 ). In these
circumstances, Australia has demonstrably acted in good faith and there is no
prejudice to Timor-Leste in the Arbitration which has or could result from the
removal of the Materials.
242Letter from the Australian Government Solicitor to DLA Piper, 16 December 2013 [Annex 55];
Letter from the Australian Government Solicitor to DLA Piper, 19 December 2013 [Annex 56];
Letter from the Australian Government Solicitor to DLA Piper, 24 December 2013 [Annex 57]. 5.5. Section III demonstrates that, to the extent that certain of the Materials
may be subject to a claim of ownership by Timor-Leste, Au stralia has acted
lawfully and in full compliance with its obligations under international law.
Section I. For those Materials which are not the property of
Timor-Leste, no question of inviolability or immunity arises
5.6. In the absence of any proprietary righ ts or interests over property, a State
cannot raise any claim to either inviolability or immunity in respect of that
property. For Timor-Leste (or any other State) to claim an applicable immunity or
inviolability over State property there must, as a matter of principle, be some
proprietary connection between that State and the property in question.
5.7. As set out in Chapter 3, on the basis of the facts available to the Court,
there are clearly several parties who may have plausible claims to rights over the
Materials. In this regard , it is also relevant to note that in seeking to support its
own claims to ownership, Timor-Leste has only selectively applied the law
relevant to property rights (the lex situs ). Australia submits that, when the
relevant law is accurately applied, the available facts are insufficient to establish
Timor-Leste’s claims to ownership over the Materials which are the subject of this
dispute.
5.8. Australia makes no claim to ownership over the Materials except, as shall
be explained below, in respect of certain classified information which should be
properly considered the property of Australia. The removal of the Materials by
ASIO on 3 December 2013 was not an act of confiscation , but merely one
involving inspection and retention on secu rity grounds. Section 25(4C) of the
ASIO Act provides that items removed pursuant to a warrant may only be retained
insofar as the items present a threat to national security. Ownership does not vest
in ASIO or Australia by reason of the removal of the Materials.
845.5. Section III demonstrates that, to the extent that certain of the Materials
may be subject to a claim of ownership by Timor-Leste, Au stralia has acted
lawfully and in full compliance with its obligations under international law.
Section I. For those Materials which are not the property of
Timor-Leste, no question of inviolability or immunity arises
5.6. In the absence of any proprietary righ ts or interests over property, a State
cannot raise any claim to either inviolability or immunity in respect of that
property. For Timor-Leste (or any other State) to claim an applicable immunity or
inviolability over State property there must, as a matter of principle, be some
proprietary connection between that State and the property in question.
5.7. As set out in Chapter 3, on the basis of the facts available to the Court,
there are clearly several parties who may have plausible claims to rights over the
Materials. In this regard , it is also relevant to note that in seeking to support its
own claims to ownership, Timor-Leste has only selectively applied the law
relevant to property rights (the lex situs ). Australia submits that, when the
relevant law is accurately applied, the available facts are insufficient to establish
Timor-Leste’s claims to ownership over the Materials which are the subject of this
dispute.
5.8. Australia makes no claim to ownership over the Materials except, as shall
be explained below, in respect of certain classified information which should be
properly considered the property of Australia. The removal of the Materials by
ASIO on 3 December 2013 was not an act of confiscation , but merely one
involving inspection and retention on secu rity grounds. Section 25(4C) of the
ASIO Act provides that items removed pursuant to a warrant may only be retained
insofar as the items present a threat to national security. Ownership does not vest
in ASIO or Australia by reason of the removal of the Materials. 5.11. Similarly, for the principle of inviolability to apply to property as a
question of internat ional law, a sufficient connection needs to be established
between the property and a State or individual, organisation or other body which
enjoys inviolability under a specific regime of international law. In the absence of
such proprietary rights or interests, the necessary connection between the property
and a sovereign State is not met, and the rationale for protecting the property is
not satisfied.
B. T HE APPLICABLE LAW FOR DETERMINING RIGHTS OVER PROPERTY IS THE
LEX SITUS
5.12. It is widely accepted that the applicable law for determining the ownership
of moveable property is the lex situs (the law of the jurisdiction in which the
property is situated). 245 As Staker writes:
In matters concerning recognition of foreign -created prop erty rights, State
practice, in the form of municipal private international laws, is overwhelmingly
consistent and uniform:
It is at present the universal principle, manifested in abundant
decisions and recognised by all writers, that the creation,
modification, and termination of rights in individual tangible
physical things are determined by the law of the place where the
thing is physically situated.
If a State is required to determine ownership for international law purposes of an
object not situated in its territory at the time, it will do so by reference to the
municipal law of the State whose territory it is in.
245
For example: Japan, see J Koshikawa, ‘The Transfer of Chattels in the Conflict of Laws: Some
Aspects of Transnational Law in Japan’, (1972) 21 The American Universird Law Review 513, 514
[Annex 32]; the United Kingdom, see A Briggs, The Conflict of Laws (3 ed., Oxford University
Press, 2013), 303; India, see V C Govindaraj, The Conflict of Laws in India (Oxford University
Press, 2011), 162-163; Canada, see J-G Castel, Canadian Conflict of Laws (2nded., Butterworths,
1986), 413-415.
246C Staker, ‘Public International Law and the Lex Situs Rule in Property Conflicts and Foreign
Expropriations’ (1988) 58 British Year Book of International Law 1987 151, 163 [Annex 33],
citing E Rabel, The Conflict of Laws: A Comparative Study (1958), volume 4, 66-69.
865.11. Similarly, for the principle of inviolability to apply to property as a
question of internat ional law, a sufficient connection needs to be established
between the property and a State or individual, organisation or other body which
enjoys inviolability under a specific regime of international law. In the absence of
such proprietary rights or interests, the necessary connection between the property
and a sovereign State is not met, and the rationale for protecting the property is
not satisfied.
B. T HE APPLICABLE LAW FOR DETERMINING RIGHTS OVER PROPERTY IS THE
LEX SITUS
5.12. It is widely accepted that the applicable law for determining the ownership
of moveable property is the lex situs (the law of the jurisdiction in which the
property is situated). 245 As Staker writes:
In matters concerning recognition of foreign -created prop erty rights, State
practice, in the form of municipal private international laws, is overwhelmingly
consistent and uniform:
It is at present the universal principle, manifested in abundant
decisions and recognised by all writers, that the creation,
modification, and termination of rights in individual tangible
physical things are determined by the law of the place where the
thing is physically situated.
If a State is required to determine ownership for international law purposes of an
object not situated in its territory at the time, it will do so by reference to the
municipal law of the State whose territory it is in.
245
For example: Japan, see J Koshikawa, ‘The Transfer of Chattels in the Conflict of Laws: Some
Aspects of Transnational Law in Japan’, (1972) 21 The American Universird Law Review 513, 514
[Annex 32]; the United Kingdom, see A Briggs, The Conflict of Laws (3 ed., Oxford University
Press, 2013), 303; India, see V C Govindaraj, The Conflict of Laws in India (Oxford University
Press, 2011), 162-163; Canada, see J-G Castel, Canadian Conflict of Laws (2nded., Butterworths,
1986), 413-415.
246C Staker, ‘Public International Law and the Lex Situs Rule in Property Conflicts and Foreign
Expropriations’ (1988) 58 British Year Book of International Law 1987 151, 163 [Annex 33],
citing E Rabel, The Conflict of Laws: A Comparative Study (1958), volume 4, 66-69. 6. Ownership of Clients' Documents - Termination of Retainer
6.1 A practitioner must retain, securely and confidentially, documents to which a
client is entitled, for the duration of the practitioner's retainerleast seven
years thereafter, or until such time as the practitioner gives them to the client or
another person authorised by the client to receive them, or the client instructs the
practitioner to deal with them in some other manner.
[…]
6.4 The documents to which a client of a practitioner should be entitled will
usually include:
(a) documents prepared by a practitioner for the client, or predominantly for the
purposes of the client, and for which the client has been, or will be, charged costs
by the practitioner; and
(b) documents received by a practitioner from a third party in the course of the
practitioner's retainer for or on behalf of the client or for the purposes of a client's
business and intended for the use or information of the client.
252
5.17. As noted by Timor-Leste in its Memorial, the principal Australian case
dealing with the question of ownership over documents held by a solicitor is the
decision of the New South Wales Court of Appeal in Wentworth v . De
Montfort. 253 The Australian Solicitors’ Conduct Rules 2011 and Commentary
confirms that this case still relevantly illustrates the ownership rights over various
types of documents that may be created by a solicitor during the course of work
254
for a client.
5.18. In Wentworth, the court applied a two limb test. Under the first limb, the
court held that where a solicitor is acting only as an agent for a client , the
ordinary rules of agency will apply and any document brought into existence or
255
received by that solicitor whilst acti ng as an agent will belong to the client.
Under the second limb, the court found that where a solicitor is acting for a client
other than as agent, property in the documents brought into existence or received
by that solicitor on behalf of the client will depend on principles referable to the
252
Timor-Leste, Memorial, [4.17].
253Wentworth v. De Montfort (1988) 15 NSWLR 348 [Annex 12].
254Law Council of Australia, Australian Solicitors’ Conduct Rules 2011 and Commentary (August
2013), 24 (accessed at < http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/
SolicitorsConductRulesHandbook_Ver3.pdf > on 20 July 2014).
88 6. Ownership of Clients' Documents - Termination of Retainer
6.1 A practitioner must retain, securely and confidentially, documents to which a
client is entitled, for the duration of the practitioner's retainerleast seven
years thereafter, or until such time as the practitioner gives them to the client or
another person authorised by the client to receive them, or the client instructs the
practitioner to deal with them in some other manner.
[…]
6.4 The documents to which a client of a practitioner should be entitled will
usually include:
(a) documents prepared by a practitioner for the client, or predominantly for the
purposes of the client, and for which the client has been, or will be, charged costs
by the practitioner; and
(b) documents received by a practitioner from a third party in the course of the
practitioner's retainer for or on behalf of the client or for the purposes of a client's
business and intended for the use or information of the client.
252
5.17. As noted by Timor-Leste in its Memorial, the principal Australian case
dealing with the question of ownership over documents held by a solicitor is the
decision of the New South Wales Court of Appeal in Wentworth v . De
Montfort. 253 The Australian Solicitors’ Conduct Rules 2011 and Commentary
confirms that this case still relevantly illustrates the ownership rights over various
types of documents that may be created by a solicitor during the course of work
254
for a client.
5.18. In Wentworth, the court applied a two limb test. Under the first limb, the
court held that where a solicitor is acting only as an agent for a client , the
ordinary rules of agency will apply and any document brought into existence or
255
received by that solicitor whilst acti ng as an agent will belong to the client.
Under the second limb, the court found that where a solicitor is acting for a client
other than as agent, property in the documents brought into existence or received
by that solicitor on behalf of the client will depend on principles referable to the
252
Timor-Leste, Memorial, [4.17].
253Wentworth v. De Montfort (1988) 15 NSWLR 348 [Annex 12].
254Law Council of Australia, Australian Solicitors’ Conduct Rules 2011 and Commentary (August
2013), 24 (accessed at < http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/
SolicitorsConductRulesHandbook_Ver3.pdf > on 20 July 2014). (3) Under the Consultancy Agreement between Collaery Lawyers and
Timor-Leste, Mr Collaery is characterised as a ‘consultant’, 263 and
specifically not as a legal representative or ‘agent’. 264
(4) As of 7 July 2014, it appears that neither Mr Collaery, nor Collaery
Lawyers, are engaged as legal advisers for Timor-Leste in the
265
Arbitration.
5.20. The contradictions between these various positions are evident. The only
thing that can be stated with certain ty is that Mr Collaery’s relationship with
Timor-Leste is not one of agent and principal. The terms of the Consultancy
Agreement between Mr Collaery and Timor-Leste (of which only a redacted
266
version has been provided to the Court and to Australia) clearly provide that
Mr Collaery is not, under the terms of the Consultancy Agreement or for any
other reason, to be considered the agent of Timor-Leste. Importantly, clause 13.8
of the Consultancy Agreement provides:
13.8 Relationship of the parties and Principal Employees
(a) This agreement is not intended to create a partnership, joint venture or agency
relationship between RDTL and the Consultant or the Principal Employees.
(b) The relationship between the Consultant and RDTL is and shall remain that
of principal and independent Consultant and the Principal Employees shall not
be deemed to be the legal representative, agent, servant or employee of RDTL
262
Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste
v. Australia), Corrected Record CR 2014/1, 20 January 2014, [11] (Lauterpacht).
263
Formal Instrument of Agreement and the General Terms and Conditions of the Consultancy
Agreement, signed by Xanana Gusmão (on behalf of Timor-Leste) and Mr Bernard Collaery,
17 September 2012, i (Timor-Leste, Memorial, Annex 7).
264
Formal Instrument of Agreement and the General Terms and Conditions of the Consultancy
Agreement, signed by Xanana Gusmão (on behalf of Timor-Leste) and Mr Bernard Collaery,
17 September 2012, [13.8] (Timor-Leste, Memorial, Annex 7).
265
Letter from Ambassador for Timor-Leste to the United Kingdom, Joaquim da Fonseca, to Legal
Counsel to the Permanent Court of Arbitration Garth Schofield, 7 July 2014 [Annex 82].
266Formal Instrument of Agreement and the General Terms and Conditions of the Consultancy
Agreement, signed by Xanana Gusmão (on behalf of Timor-Leste) and Mr Bernard Collaery,
17 September 2012 (Timor-Leste, Memorial, Annex 7).
90 (3) Under the Consultancy Agreement between Collaery Lawyers and
Timor-Leste, Mr Collaery is characterised as a ‘consultant’, 263 and
specifically not as a legal representative or ‘agent’. 264
(4) As of 7 July 2014, it appears that neither Mr Collaery, nor Collaery
Lawyers, are engaged as legal advisers for Timor-Leste in the
265
Arbitration.
5.20. The contradictions between these various positions are evident. The only
thing that can be stated with certain ty is that Mr Collaery’s relationship with
Timor-Leste is not one of agent and principal. The terms of the Consultancy
Agreement between Mr Collaery and Timor-Leste (of which only a redacted
266
version has been provided to the Court and to Australia) clearly provide that
Mr Collaery is not, under the terms of the Consultancy Agreement or for any
other reason, to be considered the agent of Timor-Leste. Importantly, clause 13.8
of the Consultancy Agreement provides:
13.8 Relationship of the parties and Principal Employees
(a) This agreement is not intended to create a partnership, joint venture or agency
relationship between RDTL and the Consultant or the Principal Employees.
(b) The relationship between the Consultant and RDTL is and shall remain that
of principal and independent Consultant and the Principal Employees shall not
be deemed to be the legal representative, agent, servant or employee of RDTL
262
Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste
v. Australia), Corrected Record CR 2014/1, 20 January 2014, [11] (Lauterpacht).
263
Formal Instrument of Agreement and the General Terms and Conditions of the Consultancy
Agreement, signed by Xanana Gusmão (on behalf of Timor-Leste) and Mr Bernard Collaery,
17 September 2012, i (Timor-Leste, Memorial, Annex 7).
264
Formal Instrument of Agreement and the General Terms and Conditions of the Consultancy
Agreement, signed by Xanana Gusmão (on behalf of Timor-Leste) and Mr Bernard Collaery,
17 September 2012, [13.8] (Timor-Leste, Memorial, Annex 7).
265
Letter from Ambassador for Timor-Leste to the United Kingdom, Joaquim da Fonseca, to Legal
Counsel to the Permanent Court of Arbitration Garth Schofield, 7 July 2014 [Annex 82].
266Formal Instrument of Agreement and the General Terms and Conditions of the Consultancy
Agreement, signed by Xanana Gusmão (on behalf of Timor-Leste) and Mr Bernard Collaery,
17 September 2012 (Timor-Leste, Memorial, Annex 7). not an agent of Timor-Leste, and could not therefore hold the Materials for
Timor-Leste in such a capacity.
5.24. The second limb of the Wentworth test provides that, wh ere a solicitor is
not acting as agent for a principal , the ownership of documents brought into
existence or received by the solicitor is governed by the law concerning the
relationship between professional and client. In its judgment, the court indicated
that in determining ownership over such documents, relevant considerations
include ‘whether or not the client was charged for the creation of the document ,
and whether the solicitor created the document for his c lient’s benefit and
270
protection, or did so for his own benefit and protection’.
5.25. In its Memorial, Timor-Leste offers this as the definitive method for
determining whether documents held by a professional are the property of the
client, and on this basis claims ownership of almost all the Materials. 271 However,
this is a selective and incomplete application of the court’s judgment in
Wentworth. The court in Wentworth provided a more nuanced analysis than
suggested in Timor-Leste’s Memorial of how ownership should be determined,
and this has been furt her developed by the High Court of Australia in
272
Breen v. Williams. In particular, Timor-Leste has had insufficient regard for
the emphasis placed in those decisions on the importance of:
(1) documents being for the client’s benefit and protection
(2) the implications of whether a given document has been paid for or not
by the client, and
(3) the status of draft documents and communications of a client to a
solicitor.
270Wentworth v. De Montfort (1988) 15 NSWLR 348, [355G] [Annex 12].
271
Timor-Leste, Memorial, [4.22] and [4.25].
272Breen v. Williams (1996) 186 CLR 71 [Annex 13].
92not an agent of Timor-Leste, and could not therefore hold the Materials for
Timor-Leste in such a capacity.
5.24. The second limb of the Wentworth test provides that, wh ere a solicitor is
not acting as agent for a principal , the ownership of documents brought into
existence or received by the solicitor is governed by the law concerning the
relationship between professional and client. In its judgment, the court indicated
that in determining ownership over such documents, relevant considerations
include ‘whether or not the client was charged for the creation of the document ,
and whether the solicitor created the document for his c lient’s benefit and
270
protection, or did so for his own benefit and protection’.
5.25. In its Memorial, Timor-Leste offers this as the definitive method for
determining whether documents held by a professional are the property of the
client, and on this basis claims ownership of almost all the Materials. 271 However,
this is a selective and incomplete application of the court’s judgment in
Wentworth. The court in Wentworth provided a more nuanced analysis than
suggested in Timor-Leste’s Memorial of how ownership should be determined,
and this has been furt her developed by the High Court of Australia in
272
Breen v. Williams. In particular, Timor-Leste has had insufficient regard for
the emphasis placed in those decisions on the importance of:
(1) documents being for the client’s benefit and protection
(2) the implications of whether a given document has been paid for or not
by the client, and
(3) the status of draft documents and communications of a client to a
solicitor.
270Wentworth v. De Montfort (1988) 15 NSWLR 348, [355G] [Annex 12].
271
Timor-Leste, Memorial, [4.22] and [4.25].
272Breen v. Williams (1996) 186 CLR 71 [Annex 13]. were in fact created for other clients of Mr Collaery. The mere mention of the
name ‘Timor’ or ‘ Timor-Leste’ in the title of a document is insufficient to
establish that it was created for Timor-Leste.
Payment for a document and draft documents
5.30. The court in Wentworth also held that a relevant consideration in
277
determining ownership is whether the client was charged for the document.
The court noted that:
where the basis of charging a client enables a conclusion to be reached that the
client has paid for all draft and copy documents and letters and things such as
instructions and briefs in contentious matters, the client is entitled to the
278
documents. (emphasis added)
5.31. However, the court clarified this further, stating:
If there were no special arrangement as to fees, I do not think that the solicitor
would be entitled to charge for making [ memoranda as to work done or work to
be done]. If there is an arrangement that fees are to be charged upon a time basis
which would include the time for making these records , I do not think that on
that account alone, the records would become the property of the client. Thus a
barrister may make written notes of arguments he proposes to submit to a court
and if he charges upon a time basis for out of court work, the client has in a sense
been charged for that work. However I do not think that that makes those notes
the property of the client; they would be made by the barrister entirely for his
own professional purposes even tho ugh they are made in the course of carrying
out work for the client.7(emphasis added)
5.32. Accordingly, proof of payment to a solicitor is a relevant consideration,
but it is not in itself sufficient to establish ownership over a document. R ather, it
must be shown that:
(1) the solicitor has charged for the creation of the document in question, and
(2) even if the document has been charged for, it has been created
predominantly for the benefit of the client, rather than for the
277Wentworth v. De Montfort (1988) 15 NSWLR 348, [355F]-[355G] [Annex 12].
278
Wentworth v. De Montfort (1988) 15 NSWLR 348, [355E] [Annex 12], citing Cordery on
Solicitors (8hed., 1988).
279
Wentworth v. De Montfort (1988) 15 NSWLR 348, [359F]-[359G] [Annex 12].
94were in fact created for other clients of Mr Collaery. The mere mention of the
name ‘Timor’ or ‘ Timor-Leste’ in the title of a document is insufficient to
establish that it was created for Timor-Leste.
Payment for a document and draft documents
5.30. The court in Wentworth also held that a relevant consideration in
277
determining ownership is whether the client was charged for the document.
The court noted that:
where the basis of charging a client enables a conclusion to be reached that the
client has paid for all draft and copy documents and letters and things such as
instructions and briefs in contentious matters, the client is entitled to the
278
documents. (emphasis added)
5.31. However, the court clarified this further, stating:
If there were no special arrangement as to fees, I do not think that the solicitor
would be entitled to charge for making [ memoranda as to work done or work to
be done]. If there is an arrangement that fees are to be charged upon a time basis
which would include the time for making these records , I do not think that on
that account alone, the records would become the property of the client. Thus a
barrister may make written notes of arguments he proposes to submit to a court
and if he charges upon a time basis for out of court work, the client has in a sense
been charged for that work. However I do not think that that makes those notes
the property of the client; they would be made by the barrister entirely for his
own professional purposes even tho ugh they are made in the course of carrying
out work for the client.9(emphasis added)
5.32. Accordingly, proof of payment to a solicitor is a relevant consideration,
but it is not in itself sufficient to establish ownership over a document. R ather, it
must be shown that:
(1) the solicitor has charged for the creation of the document in question, and
(2) even if the document has been charged for, it has been created
predominantly for the benefit of the client, rather than for the
277Wentworth v. De Montfort (1988) 15 NSWLR 348, [355F]-[355G] [Annex 12].
278
Wentworth v. De Montfort (1988) 15 NSWLR 348, [355E] [Annex 12], citing Cordery on
Solicitors (8hed., 1988).
279
Wentworth v. De Montfort (1988) 15 NSWLR 348, [359F]-[359G] [Annex 12]. Communications from the client to the solicitor
5.35. The court in Wentworth cited the judgment in Re Thomson 282 in support
of the rule that ‘the solicitor is entitled to retain letters written to him from the
client’.283 Applying this rule, any letters or other communications written or made
by Timor-Leste to Mr Collaery are the property of Mr Collaery.
Witness statement taken from a third party (‘K’)
5.36. The taking of a third party witness statement by a solicitor does not
automatically give the client property rights over that statement.
5.37. The court in Wentworth held that it was not able to determine, on its face,
whether a document relating to a telephone conversation between a solicitor and a
person other than the client (but relating to the client’s affairs) was the property of
the client.284 In this context, the court implied that a witness statement taken from
a third party would be the property of the client, saying:
a solicitor may interview a witness and take a statement from him. I would have
thought that such a statement was taken for the benefit of the client as well as by
the solicitor for his own pur285es and undoubtedly the client would be charged
for the taking of the statement.
5.38. The key issue in this regard is whether the witness statement was taken for
the benefit of the clie nt and, as stated under the Legal Profession (Solicitors)
286
Rules 2007 , was taken ‘in the course of the practitioner ’s retainer’. In its
Memorial, Timor-Leste claims that LPP012 and LPP014 are ‘the draft of a
287
statement of a third party taken for legal proc eedings involving Timor-Leste’.
282
Re Thomson [1855] 20 Beav 545 [Annex 15].
283Wentworth v. De Montfort (1988) 15 NSWLR 348, [354B] [Annex 12].
284
Wentworth v. De Montfort (1988) 15 NSWLR 348, [359E] [Annex 12].
285
Wentworth v. De Montfort (1988) 15 NSWLR 348, [358F] - [358G] [Annex 12].
286Legal Profession (Solicitors) Rules 2007 (ACT), Rule 6.4(b) [Annex 42].
287Timor-Leste, Memorial, [4.23(n)] and [4.23(p)].
96Communications from the client to the solicitor
5.35. The court in Wentworth cited the judgment in Re Thomson 282 in support
of the rule that ‘the solicitor is entitled to retain letters written to him from the
client’.283 Applying this rule, any letters or other communications written or made
by Timor-Leste to Mr Collaery are the property of Mr Collaery.
Witness statement taken from a third party (‘K’)
5.36. The taking of a third party witness statement by a solicitor does not
automatically give the client property rights over that statement.
5.37. The court in Wentworth held that it was not able to determine, on its face,
whether a document relating to a telephone conversation between a solicitor and a
person other than the client (but relating to the client’s affairs) was the property of
the client.284 In this context, the court implied that a witness statement taken from
a third party would be the property of the client, saying:
a solicitor may interview a witness and take a statement from him. I would have
thought that such a statement was taken for the benefit of the client as well as by
the solicitor for his own pur285es and undoubtedly the client would be charged
for the taking of the statement.
5.38. The key issue in this regard is whether the witness statement was taken for
the benefit of the clie nt and, as stated under the Legal Profession (Solicitors)
286
Rules 2007 , was taken ‘in the course of the practitioner ’s retainer’. In its
Memorial, Timor-Leste claims that LPP012 and LPP014 are ‘the draft of a
287
statement of a third party taken for legal proc eedings involving Timor-Leste’.
282
Re Thomson [1855] 20 Beav 545 [Annex 15].
283Wentworth v. De Montfort (1988) 15 NSWLR 348, [354B] [Annex 12].
284
Wentworth v. De Montfort (1988) 15 NSWLR 348, [359E] [Annex 12].
285
Wentworth v. De Montfort (1988) 15 NSWLR 348, [358F] - [358G] [Annex 12].
286Legal Profession (Solicitors) Rules 2007 (ACT), Rule 6.4(b) [Annex 42].
287Timor-Leste, Memorial, [4.23(n)] and [4.23(p)]. the chapeau paragraph to the section pertaining to ‘Relations with Clients’ states
that:
Practitioners shou ld not, in the service of their clients, engage in, or assist,
conduct that is calculated to defeat the ends of justice or is otherwise in breach of
the law.92
5.41. The Consultancy Agreement provides for grounds of termination in the
event that Mr Collaery commi ts ‘any act of serious misconduct, fraud or
dishonesty’ 293 or is convicted of ‘a criminal offence which in the reasonable
opinion of RDTL will detrimentally affect RDTL or any of its Related
294
Corporations’. It is plausible to conclude therefore that the tak ing of ‘K’s
affidavit by Mr Collaery was outside the scope of the Consultancy Agreement, on
the basis that it was contrary to his legal obligations as a solicitor given that the
givingof the affidavit appears to have constituted a criminal offence.
5.42. If Timor-Leste contests this conclusion, then it is reasonable to ask:
(1) Did Timor-Leste pay for the affidavit?
If not, then it is not the property of Timor-Leste. If yes:
(2) Did Timor-Leste pay for its creation? Or, alternatively
(3) Did Timor-Leste pay to receive the completed affidavit?
5.43. If Timor-Leste paid for the affidavit, it was plainly not (contrary to its
repeated assertions) merely a ‘passive recipient’ of the information. Moreover, it
is inconceivable that it was not aware that its creation likely constituted a breach
of Australian criminal law by ‘K’ and Mr Collaery. Timor-Leste clearly had
292Legal Profession (Solicitors) Rules 2007 (ACT), 6 [Annex 42].
293Formal Instrument of Agreement and the General Terms and Conditions of the Consultancy
Agreement, signed by Xanana Gusmão (on behalf of Timor-Leste) and Mr Bernard Collaery,
17 September 2012, clause 10.1(c) (Timor-Leste, Memorial, Annex 7).
294
Formal Instrument of Agreement and the General Terms and Conditions of the Consultancy
Agreement, signed by Xanana Gusmão (on behalf of Timor-Leste) and Mr Bernard Collaery,
17 September 2012, clause 10.1(f) (Timor-Leste, Memorial, Annex 7).
98the chapeau paragraph to the section pertaining to ‘Relations with Clients’ states
that:
Practitioners shou ld not, in the service of their clients, engage in, or assist,
conduct that is calculated to defeat the ends of justice or is otherwise in breach of
the law.92
5.41. The Consultancy Agreement provides for grounds of termination in the
event that Mr Collaery commi ts ‘any act of serious misconduct, fraud or
dishonesty’ 293 or is convicted of ‘a criminal offence which in the reasonable
opinion of RDTL will detrimentally affect RDTL or any of its Related
294
Corporations’. It is plausible to conclude therefore that the tak ing of ‘K’s
affidavit by Mr Collaery was outside the scope of the Consultancy Agreement, on
the basis that it was contrary to his legal obligations as a solicitor given that the
givingof the affidavit appears to have constituted a criminal offence.
5.42. If Timor-Leste contests this conclusion, then it is reasonable to ask:
(1) Did Timor-Leste pay for the affidavit?
If not, then it is not the property of Timor-Leste. If yes:
(2) Did Timor-Leste pay for its creation? Or, alternatively
(3) Did Timor-Leste pay to receive the completed affidavit?
5.43. If Timor-Leste paid for the affidavit, it was plainly not (contrary to its
repeated assertions) merely a ‘passive recipient’ of the information. Moreover, it
is inconceivable that it was not aware that its creation likely constituted a breach
of Australian criminal law by ‘K’ and Mr Collaery. Timor-Leste clearly had
292Legal Profession (Solicitors) Rules 2007 (ACT), 6 [Annex 42].
293Formal Instrument of Agreement and the General Terms and Conditions of the Consultancy
Agreement, signed by Xanana Gusmão (on behalf of Timor-Leste) and Mr Bernard Collaery,
17 September 2012, clause 10.1(c) (Timor-Leste, Memorial, Annex 7).
294
Formal Instrument of Agreement and the General Terms and Conditions of the Consultancy
Agreement, signed by Xanana Gusmão (on behalf of Timor-Leste) and Mr Bernard Collaery,
17 September 2012, clause 10.1(f) (Timor-Leste, Memorial, Annex 7). be invalid on the grou nds that it is contrary to public policy. Furthermore, a
contract may be void where the performance of the contract is prohibited by
301
legislation.
5.47. Even if the Consultancy Agreement was not considered void under
Australian law, it is likely that a court wo uld refuse to enforce an action (such as
the recovery of documents on an alleged claim of ownership) which relies on
illegal conduct performed under contract. Such a refusal arises from the principle
of ex turpi causa non oritur actio (‘no cause of action arises out of illegality’).
This principle operates to prevent the court being ‘used to assist the commission
(or furtherance) of illegal acts, which might be achieved by the enforcement of
302
rights arising from illegal acts ’. The court may refuse to indulge the action, at
least where the action pivots on illegal conduct, even where the contract itself is
303
not considered void.
Classified information is the property of the State
5.48. Classified information held by the State constitutes information created for
and collected by the State for its own use. The way in which States obtain, retain
and use classified information is such that classified information can only
properly be considered the property of the State. States expend considerabl e
resources in the collection and creation of classified information and carefully
protect that information once obtained. In the same way that personal property is
299A v. Hayden (1984) 156 CLR 532, 560 [Annex 16]. See also N Seddon, R Bigwood and M
Ellinghaus, Cheshire & Fifoot Law of Contract (10hed., LexisNexis Butterworths, 2012), 971-972
[Annex 34].
300
A v. Hayden (1984) 156 CLR 532, 553, 557 [Annex 16].
301 th
N Seddon, R Bigwood and M Ellinghaus, Cheshire & Fifoot Law of Contract (10 ed.,
LexisNexis Butterworths, 2012), 964-965 [Annex 34].
302G E Dal Pont (ed.), Halsbury’s Laws of Australia (LexisNexis, March 2014), [110-7280]
[Annex 35].
303North v. Marra Developments Ltd (1981) 148 CLR 42, 60 [Annex 17].
100be invalid on the grou nds that it is contrary to public policy. Furthermore, a
contract may be void where the performance of the contract is prohibited by
301
legislation.
5.47. Even if the Consultancy Agreement was not considered void under
Australian law, it is likely that a court wo uld refuse to enforce an action (such as
the recovery of documents on an alleged claim of ownership) which relies on
illegal conduct performed under contract. Such a refusal arises from the principle
of ex turpi causa non oritur actio (‘no cause of action arises out of illegality’).
This principle operates to prevent the court being ‘used to assist the commission
(or furtherance) of illegal acts, which might be achieved by the enforcement of
302
rights arising from illegal acts ’. The court may refuse to indulge the action, at
least where the action pivots on illegal conduct, even where the contract itself is
303
not considered void.
Classified information is the property of the State
5.48. Classified information held by the State constitutes information created for
and collected by the State for its own use. The way in which States obtain, retain
and use classified information is such that classified information can only
properly be considered the property of the State. States expend considerabl e
resources in the collection and creation of classified information and carefully
protect that information once obtained. In the same way that personal property is
299A v. Hayden (1984) 156 CLR 532, 560 [Annex 16]. See also N Seddon, R Bigwood and M
Ellinghaus, Cheshire & Fifoot Law of Contract (10hed., LexisNexis Butterworths, 2012), 971-972
[Annex 34].
300
A v. Hayden (1984) 156 CLR 532, 553, 557 [Annex 16].
301 th
N Seddon, R Bigwood and M Ellinghaus, Cheshire & Fifoot Law of Contract (10 ed.,
LexisNexis Butterworths, 2012), 964-965 [Annex 34].
302G E Dal Pont (ed.), Halsbury’s Laws of Australia (LexisNexis, March 2014), [110-7280]
[Annex 35].
303North v. Marra Developments Ltd (1981) 148 CLR 42, 60 [Annex 17]. D. T IMOR -LESTE HAS NOT ESTABLISHED ITS CLAIMS TO OWNERSHIP
5.53. On the basis of the limited evidence available to the Court, and with a
correct application of the law applicable to ownership , it cannot be established
that Timor-Leste has proprietary rights over several of the other Materials in
question. Australia submits that given the inherent uncertainty concerning the
character of the Materials, conclusions as to ownership can only be dra wn in the
following ways:
(1) Materials which Timor-Leste concedes are not its property
(2) Materials over which Timor-Leste has failed to establish ownership,
and
(3) Materials which, on their face, may be the property of Timor-Leste
(but for which there is still little evidence supporting this conclusion).
5.54. Notwithstanding the uncertainty concerning the Materials, any of the
Materials which constitute Australian classified information, protected by the
laws of Australia, must be the property of Australia.
Materials which are not the property of Timor-Leste
5.55. Timor-Leste concedes that the following items are not its property. 306
(1) LPP006: Folder labelled ICT product containing document titled
‘Protocol for the operation of base stations’.
(2) LPP013: Brief to Counsel re: Timor -Leste v Australia dated 19
November 2013.
306
Timor-Leste, Memorial, [4.23(h)] and [4.23(o)].
102D. T IMOR -LESTE HAS NOT ESTABLISHED ITS CLAIMS TO OWNERSHIP
5.53. On the basis of the limited evidence available to the Court, and with a
correct application of the law applicable to ownership , it cannot be established
that Timor-Leste has proprietary rights over several of the other Materials in
question. Australia submits that given the inherent uncertainty concerning the
character of the Materials, conclusions as to ownership can only be dra wn in the
following ways:
(1) Materials which Timor-Leste concedes are not its property
(2) Materials over which Timor-Leste has failed to establish ownership,
and
(3) Materials which, on their face, may be the property of Timor-Leste
(but for which there is still little evidence supporting this conclusion).
5.54. Notwithstanding the uncertainty concerning the Materials, any of the
Materials which constitute Australian classified information, protected by the
laws of Australia, must be the property of Australia.
Materials which are not the property of Timor-Leste
5.55. Timor-Leste concedes that the following items are not its property. 306
(1) LPP006: Folder labelled ICT product containing document titled
‘Protocol for the operation of base stations’.
(2) LPP013: Brief to Counsel re: Timor -Leste v Australia dated 19
November 2013.
306
Timor-Leste, Memorial, [4.23(h)] and [4.23(o)]. (5) LPP015: Seven letters of varying stages of draft addressed to
Ambassador Joaquim AML da Fonseca from B Collaery dated 20
November 2013. Draft documents remain the property of the solicitor,
as such, this item (and its constituent documents) remains the property
of Mr Collaery.
Materials which, on their face, may be the property of Timor-Leste
5.57. The limited evidence available indicates that the remaining items may be
the property of Timor-Leste. However, in the absence of further substantiation,
and with regard for the potential rights of other parties in these Materials, the
Court should approach the question of ownership over them with caution.
Section II. There is no general inviolability of State property, and
specific legal regimes of inviolability do not apply in this case
5.58. Timor-Leste has made the unsupported claim that by issuing and executing
the warrant, Australia has ‘violated Timor-Leste’s right under international law to
inviolability and immunity in respect of the documents and data’. 309 However, as
limitations on forum State sovereignty, the established principles of inviolability
and immunity are carefully defined and have a limited scope. This is consistent
with the underlying principle (stemming from the right of territorial sovereignty)
that, in the absence of specific and compelling reasons, the rights of foreign States
should not be unjustifiably favoured over those of the forum State in question.
This principle is apposite in the circumstances of this case, in which the principles
of inviolability and immunity have no relevant application.
30Timor-Leste, Memorial, Final Submissions, (1).
104 (5) LPP015: Seven letters of varying stages of draft addressed to
Ambassador Joaquim AML da Fonseca from B Collaery dated 20
November 2013. Draft documents remain the property of the solicitor,
as such, this item (and its constituent documents) remains the property
of Mr Collaery.
Materials which, on their face, may be the property of Timor-Leste
5.57. The limited evidence available indicates that the remaining items may be
the property of Timor-Leste. However, in the absence of further substantiation,
and with regard for the potential rights of other parties in these Materials, the
Court should approach the question of ownership over them with caution.
Section II. There is no general inviolability of State property, and
specific legal regimes of inviolability do not apply in this case
5.58. Timor-Leste has made the unsupported claim that by issuing and executing
the warrant, Australia has ‘violated Timor-Leste’s right under international law to
inviolability and immunity in respect of the documents and data’. 309 However, as
limitations on forum State sovereignty, the established principles of inviolability
and immunity are carefully defined and have a limited scope. This is consistent
with the underlying principle (stemming from the right of territorial sovereignty)
that, in the absence of specific and compelling reasons, the rights of foreign States
should not be unjustifiably favoured over those of the forum State in question.
This principle is apposite in the circumstances of this case, in which the principles
of inviolability and immunity have no relevant application.
309Timor-Leste, Memorial, Final Submissions, (1). subject of that inviolability from physical invasion or interference with their
313
functions and from impairment of their dignity. In this respect, it is a much
broader category. Inviolability protects the subject not only from actions of the
forum State, but also from interference by private citizens and other private actors.
On this point, Lord Bridge in Shearson Lehman Brothers Inc. v. Maclaine,
Watson & Co Ltd stated that:
The underlying purpose of the inviolability conferred is to protect the privacy of
diplomatic communications. I f that privacy is violated by a citizen, it would be
wholly inimical to the underlying purpose that the judicial authorities of the host
State should countenance the violation by permitting the violator, or any one
who receives the document fr om the violator, to make us e of the document in
judicial proceedings.14
5.62. State immunity, by contrast, refers to a procedural bar on the exercise of
jurisdiction and orders of execution (including pre - and post-judgment orders)
315
over a foreign State, by the national courts of a forum State. The application of
this procedural bar is not absolute, with a rest rictive approach to immunity
(a general rule with specified exceptions) now forming the basis of customary
international law, on which basis the various domestic statutes and the
2004 Convention were drafted.
313 th
Sir Ivor Roberts (ed.), Satow’s Diplomatic Practice (6 ed., Oxford University Press, 2009),
10rd E Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations,
(3 ed., Oxford University Press, 2008), 135. For further examples, see, Vienna Convention on
Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964),
Article 22 and Article 29; Case concerning United States Diplomatic and Consular Staff in Tehran
(United States of America v. Iran), Judgement, I.C.J. Reports 1980, 3 at [76], where the Court
found Iran to have been in breach of its international obligations to take steps to prevent the attack
from taking place. The Court found that Iran had endorsed of the acts in question, and had
continued to apply them. This, the Court held, ‘clearly gave rise to repeated and multiple breaches
of the applicable provisions of the Vienna Conventions even more serious than those which arose
from their failure to stake any steps to prevent the attacks on the inviolability of these premises and
staff’.
314Shearson Lehman Brothers Inc. v. Maclaine, Watson & Co Ltd, International Tin Council
Intervening (No 2) [1988] 1 WLR 16 at [27G] [Annex 18].
315J Crawford, Brownlie’s Principles of Public International Law (8 ed., Oxford University
Press, 2012), 487.
106subject of that inviolability from physical invasion or interference with their
313
functions and from impairment of their dignity. In this respect, it is a much
broader category. Inviolability protects the subject not only from actions of the
forum State, but also from interference by private citizens and other private actors.
On this point, Lord Bridge in Shearson Lehman Brothers Inc. v. Maclaine,
Watson & Co Ltd stated that:
The underlying purpose of the inviolability conferred is to protect the privacy of
diplomatic communications. I f that privacy is violated by a citizen, it would be
wholly inimical to the underlying purpose that the judicial authorities of the host
State should countenance the violation by permitting the violator, or any one
who receives the document fr om the violator, to make us e of the document in
judicial proceedings.4
5.62. State immunity, by contrast, refers to a procedural bar on the exercise of
jurisdiction and orders of execution (including pre - and post-judgment orders)
315
over a foreign State, by the national courts of a forum State. The application of
this procedural bar is not absolute, with a rest rictive approach to immunity
(a general rule with specified exceptions) now forming the basis of customary
international law, on which basis the various domestic statutes and the
2004 Convention were drafted.
313 th
Sir Ivor Roberts (ed.), Satow’s Diplomatic Practice (6 ed., Oxford University Press, 2009),
10rd E Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations,
(3 ed., Oxford University Press, 2008), 135. For further examples, see, Vienna Convention on
Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964),
Article 22 and Article 29; Case concerning United States Diplomatic and Consular Staff in Tehran
(United States of America v. Iran), Judgement, I.C.J. Reports 1980, 3 at [76], where the Court
found Iran to have been in breach of its international obligations to take steps to prevent the attack
from taking place. The Court found that Iran had endorsed of the acts in question, and had
continued to apply them. This, the Court held, ‘clearly gave rise to repeated and multiple breaches
of the applicable provisions of the Vienna Conventions even more serious than those which arose
from their failure to stake any steps to prevent the attacks on the inviolability of these premises and
staff’.
314Shearson Lehman Brothers Inc. v. Maclaine, Watson & Co Ltd, International Tin Council
Intervening (No 2) [1988] 1 WLR 16 at [27G] [Annex 18].
315J Crawford, Brownlie’s Principles of Public International Law (8 ed., Oxford University
Press, 2012), 487. Australia’s submission, could not do so in any event given what is known of the
character of the Materials in question.
5.66. State property is not subject to any general regime of inviolability, but
specific categories of persons or activities may attract inviolability.
Property which falls within specific categories, such as diplomatic or consular
property or the property of visiting a rmed forces, are subject to specific legal
317
regimes. For example, the Vienna Convention on Diplomatic Relations 1961
sets out specific rules relating to the inviolability of diplomatic property and
318
diplomatic archives and documents.
5.67. However, foreign State property present within the territory of a forum
State may extend well beyond these categories. Examples include: buildings and
other forms of immovable property owned for the purposes of foreign investment,
or to provide accommodation for that Stat e’s official visitors; former diplomatic
319
premises which have not yet been assigned to a new use; and bank accounts in
the State’s name and used for purposes ranging from commercial investment to
reserves for the State’s currency or sovereign wealth funds . In relation to these
other categories of State property, there is no general requirement in international
law which grants inviolability from governmental action by a forum State. 320
317Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964).
318Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Articles 22, 24 and 30.
319See for example, as to the former Iranian Embassy premises in London, Westminster City
Council v. Government of the Islamic Republic of Iran [1986] 1 WLR 979 [Annex 19].
320On this point, Yang notes that given that immovable property is inseparable from the territory
of a forum State, that property cannot be subject to any law other than that of the forum State in
which it is located: X Yang, State Immunity in International Law (Cambridge University Press,
2012), 67. In this sense, immoveable property owned by a foreign State (other than property
which falls within a specific legal regime, such as diplomatic property), cannot be inviolable with
regard to actions taken against that property by a forum State. Similarly, the diplomatic property
of a foreign State may lose its inviolability where that property is used in a manner incompatible
with the functions of a diplomatic mission: E Denza, Diplomatic Law: Commentary on the Vienna
108Australia’s submission, could not do so in any event given what is known of the
character of the Materials in question.
5.66. State property is not subject to any general regime of inviolability, but
specific categories of persons or activities may attract inviolability.
Property which falls within specific categories, such as diplomatic or consular
property or the property of visiting a rmed forces, are subject to specific legal
317
regimes. For example, the Vienna Convention on Diplomatic Relations 1961
sets out specific rules relating to the inviolability of diplomatic property and
318
diplomatic archives and documents.
5.67. However, foreign State property present within the territory of a forum
State may extend well beyond these categories. Examples include: buildings and
other forms of immovable property owned for the purposes of foreign investment,
or to provide accommodation for that Stat e’s official visitors; former diplomatic
319
premises which have not yet been assigned to a new use; and bank accounts in
the State’s name and used for purposes ranging from commercial investment to
reserves for the State’s currency or sovereign wealth funds . In relation to these
other categories of State property, there is no general requirement in international
law which grants inviolability from governmental action by a forum State. 320
317Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964).
318Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Articles 22, 24 and 30.
319See for example, as to the former Iranian Embassy premises in London, Westminster City
Council v. Government of the Islamic Republic of Iran [1986] 1 WLR 979 [Annex 19].
320On this point, Yang notes that given that immovable property is inseparable from the territory
of a forum State, that property cannot be subject to any law other than that of the forum State in
which it is located: X Yang, State Immunity in International Law (Cambridge University Press,
2012), 67. In this sense, immoveable property owned by a foreign State (other than property
which falls within a specific legal regime, such as diplomatic property), cannot be inviolable with
regard to actions taken against that property by a forum State. Similarly, the diplomatic property
of a foreign State may lose its inviolability where that property is used in a manner incompatible
with the functions of a diplomatic mission: E Denza, Diplomatic Law: Commentary on the Vienna 5.70. It is true that these Conventions provide for the inviolability of certain
documents and other property. But they do not evidence a general principle of
inviolability of all State property in all circumstances, wherever such property
may be located. Such a conclusion would be totally inconsistent with State
practice, and lack any support under international law. Instead, these Conventions
merely confirm the position that international law recogn ises specific classes of
documents and other property which, due to their special status and purpose,
require additional protection through the principle of inviolability.
5.71. For example, the Vienna Convention on Diplomatic Relations 1961
provides for the inviolability of specific classes of diplomatic property, including
327 328
the premises of the mission, the archives and documents of the mission, the
329
residence of a diplomat and the papers, correspondence and (subject to some
330
limitations) the property of a diplomat. The justification for the granting of
such inviolability is to ensure the efficient performance of the functions of a
331
diplomatic mission, and the recognition of such inviolability does not support
an unqualified rule of inviolability over State property generally.
5.72. Similarly, the Vienna Convention on Consular Relations 1963 provides for
the inviolability of consular premises 332 and consular archives and documents. 333
327Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 22.
328
Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 24.
329
Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 30(1).
330Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 30(2).
331Sir Ivor Roberts (ed.), Satow’s Diplomatic Practice (6 ed., Oxford University Press, 2009),
100. See also, Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95
(entered into force 24 April 1964), Preamble.
332Vienna Convention on Consular Relations, Vienna, 24 April 1963, 596 UNTS 261 (entered into
force 19 March 1967), Article 31.
1105.70. It is true that these Conventions provide for the inviolability of certain
documents and other property. But they do not evidence a general principle of
inviolability of all State property in all circumstances, wherever such property
may be located. Such a conclusion would be totally inconsistent with State
practice, and lack any support under international law. Instead, these Conventions
merely confirm the position that international law recogn ises specific classes of
documents and other property which, due to their special status and purpose,
require additional protection through the principle of inviolability.
5.71. For example, the Vienna Convention on Diplomatic Relations 1961
provides for the inviolability of specific classes of diplomatic property, including
327 328
the premises of the mission, the archives and documents of the mission, the
329
residence of a diplomat and the papers, correspondence and (subject to some
330
limitations) the property of a diplomat. The justification for the granting of
such inviolability is to ensure the efficient performance of the functions of a
331
diplomatic mission, and the recognition of such inviolability does not support
an unqualified rule of inviolability over State property generally.
5.72. Similarly, the Vienna Convention on Consular Relations 1963 provides for
the inviolability of consular premises 332 and consular archives and documents. 333
327Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 22.
328
Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 24.
329
Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 30(1).
330Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964), Article 30(2).
331Sir Ivor Roberts (ed.), Satow’s Diplomatic Practice (6 ed., Oxford University Press, 2009),
100. See also, Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95
(entered into force 24 April 1964), Preamble.
332Vienna Convention on Consular Relations, Vienna, 24 April 1963, 596 UNTS 261 (entered into
force 19 March 1967), Article 31. United Nations, in order to ensure their effective operation and the fulfilment of
336
their functions.
5.75. The specific regimes governing inviolability exist to ensure the effective
functioning of diplomatic and consular relations between States and to ensure that
certain international organisations and agencies are able to perform their functions
free from interference. They do not operate so as to render all categories, classes
and types of State property inviolable, wherever that property is found. Such a
conclusion would extend the customary international law relating to inviolability
well beyond its recognised scope. It would be unacceptable to the vast majority
of States.
C. T HERE IS NO STATE PRACTICE TO SUPPORT THE PROPOSITION THAT ALL S TATE
PROPERTY IS INVIOLABLE UNDER CUSTOMARY INTERNATIONAL LAW
5.76. Timor-Leste also seeks to rely on specific examples of State practice to
support its assertion that State property is inviolable in all circumstances.
Timor-Leste claims that the examples cited in its Memorial:
reflect the fundamental principle that inviolability applies to State documents
generally, wherever they may be and even though they are not State archives in
the narrow sense, or archives of a diplomatic mission or consular post.
5.77. The examples provided by Timor-Leste do no such thing. Instead, the
examples cited are both irrelevant to the current c ase and easily distinguished, or
they took place within the existing treaty regime provided by the Vienna
336
Convention on the Privileges and Immunities of the Specialised Agencies, New York, 21
November 1947, 33 UNTS 261 (entered into force 2 December 1948). Article III, section 4
provides that ‘the specialized agencies, their property and assets, wherever located and by
whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any
particular case they have expressly waived their immunity’. Article III, section 5 provides that
‘[t]he premises of the specialized agencies shall be inviolable. The property and assets of the
specialised agencies wherever located and by whomsoever held, shall be immune from search,
requisition, confiscation, expropriation and any other form of interference, whether by executive,
administrative, judicial or legislative action’.
337Timor-Leste, Memorial, [5.65].
112United Nations, in order to ensure their effective operation and the fulfilment of
336
their functions.
5.75. The specific regimes governing inviolability exist to ensure the effective
functioning of diplomatic and consular relations between States and to ensure that
certain international organisations and agencies are able to perform their functions
free from interference. They do not operate so as to render all categories, classes
and types of State property inviolable, wherever that property is found. Such a
conclusion would extend the customary international law relating to inviolability
well beyond its recognised scope. It would be unacceptable to the vast majority
of States.
C. T HERE IS NO STATE PRACTICE TO SUPPORT THE PROPOSITION THAT ALL S TATE
PROPERTY IS INVIOLABLE UNDER CUSTOMARY INTERNATIONAL LAW
5.76. Timor-Leste also seeks to rely on specific examples of State practice to
support its assertion that State property is inviolable in all circumstances.
Timor-Leste claims that the examples cited in its Memorial:
reflect the fundamental principle that inviolability applies to State documents
generally, wherever they may be and even though they are not State archives in
the narrow sense, or archives of a diplomatic mission or consular post.
5.77. The examples provided by Timor-Leste do no such thing. Instead, the
examples cited are both irrelevant to the current c ase and easily distinguished, or
they took place within the existing treaty regime provided by the Vienna
336
Convention on the Privileges and Immunities of the Specialised Agencies, New York, 21
November 1947, 33 UNTS 261 (entered into force 2 December 1948). Article III, section 4
provides that ‘the specialized agencies, their property and assets, wherever located and by
whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any
particular case they have expressly waived their immunity’. Article III, section 5 provides that
‘[t]he premises of the specialized agencies shall be inviolable. The property and assets of the
specialised agencies wherever located and by whomsoever held, shall be immune from search,
requisition, confiscation, expropriation and any other form of interference, whether by executive,
administrative, judicial or legislative action’.
337Timor-Leste, Memorial, [5.65]. 341
question raised was ‘novel and complex’ indicating that its position in that case
was not reflective of a general rule of customary international law. With regard to
Timor-Leste’s alternative example, o f official British correspondence interfered
with while in transit, 342 the Foreign and Commonwealth Office did not make any
mention of inviolability. It relied solely on the principles set out in the Vienna
Convention on Diplomatic Relations 1961, principles which apply within the
diplomatic context, to provide protection for certain documents within a clearly
defined and specific legal regime.
5.80. State practice with regard to the seizure of foreign passports provides a
clear example of the recognit ion that there is no general doctrine of inviolability
for State property outside the specific legal regimes mentioned above. Passports
are recognised as being the property of the issuing State and not the individual
holder of the document. However, Sta te practice demonstrates a willingness to
allow the relevant authorities of a forum State to confiscate or seize (at least
temporarily) the foreign passport of an individual.
5.81. For example, the United States Department of Homeland Security (DHS),
in its Fie ld Manual, instructs DHS agents who have taken custody of a foreign
national’s passport in certain circumstances to continue to hold that passport and
343
not relinquish it to the relevant foreign national. This is despite recognition in
the Field Manual tha t the passport remains the property of the issuing State.
Australian domestic law permits the seizure of foreign passports in certain
341
‘Vienna Convention on Diplomatic Relations: Saudi Arabian Embassy Documents’ in S J
Cummins and D P Stewart (eds.), Digest of United States Practice in International Law 2002
(International Law Institute), 570 [Annex 36].
342
Timor-Leste, Memorial, [5.63]-[5.64].
343Memorandum from Acting Director John Torres, to Field Office Directors, U.S. Immigration
and Customs Enforcement, ‘Detention and Deportation Officer’s Field Manual, Update:
Chapter 1’, (27 March 2006), at 16.1(a) (‘Do not return the passport of an alien whose departure is
being enforced’) (accessed at <http://www.immigration.com/sites/default/files/icedetention.pdf>
on 20 July 2014).
114 341
question raised was ‘novel and complex’ indicating that its position in that case
was not reflective of a general rule of customary international law. With regard to
Timor-Leste’s alternative example, o f official British correspondence interfered
with while in transit, 342 the Foreign and Commonwealth Office did not make any
mention of inviolability. It relied solely on the principles set out in the Vienna
Convention on Diplomatic Relations 1961, principles which apply within the
diplomatic context, to provide protection for certain documents within a clearly
defined and specific legal regime.
5.80. State practice with regard to the seizure of foreign passports provides a
clear example of the recognit ion that there is no general doctrine of inviolability
for State property outside the specific legal regimes mentioned above. Passports
are recognised as being the property of the issuing State and not the individual
holder of the document. However, Sta te practice demonstrates a willingness to
allow the relevant authorities of a forum State to confiscate or seize (at least
temporarily) the foreign passport of an individual.
5.81. For example, the United States Department of Homeland Security (DHS),
in its Fie ld Manual, instructs DHS agents who have taken custody of a foreign
national’s passport in certain circumstances to continue to hold that passport and
343
not relinquish it to the relevant foreign national. This is despite recognition in
the Field Manual tha t the passport remains the property of the issuing State.
Australian domestic law permits the seizure of foreign passports in certain
341
‘Vienna Convention on Diplomatic Relations: Saudi Arabian Embassy Documents’ in S J
Cummins and D P Stewart (eds.), Digest of United States Practice in International Law 2002
(International Law Institute), 570 [Annex 36].
342
Timor-Leste, Memorial, [5.63]-[5.64].
343Memorandum from Acting Director John Torres, to Field Office Directors, U.S. Immigration
and Customs Enforcement, ‘Detention and Deportation Officer’s Field Manual, Update:
Chapter 1’, (27 March 2006), at 16.1(a) (‘Do not return the passport of an alien whose departure is
being enforced’) (accessed at <http://www.immigration.com/sites/default/files/icedetention.pdf>
on 20 July 2014). improbable that the practice with regard to foreign passports would continue to
347
occur largely unprotested.
5.83. The only possible conclusion is that the re is no law of inviolability of
general application to State property. Further, the specific legal regimes which
confer inviolability upon certain persons and types of property are not relevant in
this case. Accordingly, Timor-Leste’s claims with regard to inviolability must be
dismissed.
Section III. The law of State immunity does not apply in this case
A. T HE APPLICABLE LAW ON STATE IMMUNITY AS BETWEEN THE PARTIES IS
CUSTOM ,OF WHICH THE 2004 C ONVENTION IS NOT AN EXHAUSTIVE STATEMENT
5.84. There is no treaty to which Australia and Timor-Leste are parties (and no
treaty of general application) which establishes th e law of State immunity as it
applies between them. The relevant law as between the Parties will necessarily be
348
customary international law, as it was in the Jurisdictional Immunities case.
In that case, the Court held that as between the parties, any e ntitlement to
immunity could only be derived from customary international law rather than
treaty; it was for the Court to determine the existence of international custom, as
347There are few examples of protest by States regarding the seizure of foreign passports. In 2011,
Australia did not protest the seizure of an Australian national’s passport by Jordanian authorities:
see D Welch, ‘Australian’s passport seized in Jordan’, The Sydney Morning Herald, 14 November
2011 [Annex 69]. In 2010, Guatemala made an official protest after Guatemalan passports were
seized and inspected by United States officials in Florida: see J Preston, ‘Guatemala protests arrest
of 3 in Florida over passports’, The New York Times, 19 January 2010 [Annex 70]. However, the
protest was due to the apparent detention of Guatemalan citizens, the disruption of dealings
between Guatemala and those citizens, and a lack of notification. The protest was not made on the
basis of inviolability of State documents. Also in 2010, Pakistan threatened to protest the seizure
of a Pakistani citizen’s passport by Indian authorities, on the basis that a court case should not
have been filed against a Pakistani citizen, not on the basis that the passport was inviolable: see
‘Pak may protest seizure of Shoaib’s passport’, The Indian Express, 5 April 2010 [Annex 71].
348Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J.
Reports 2012, 99 at [54].
116improbable that the practice with regard to foreign passports would continue to
347
occur largely unprotested.
5.83. The only possible conclusion is that the re is no law of inviolability of
general application to State property. Further, the specific legal regimes which
confer inviolability upon certain persons and types of property are not relevant in
this case. Accordingly, Timor-Leste’s claims with regard to inviolability must be
dismissed.
Section III. The law of State immunity does not apply in this case
A. T HE APPLICABLE LAW ON STATE IMMUNITY AS BETWEEN THE PARTIES IS
CUSTOM ,OF WHICH THE 2004C ONVENTION IS NOT AN EXHAUSTIVE STATEMENT
5.84. There is no treaty to which Australia and Timor-Leste are parties (and no
treaty of general application) which establishes th e law of State immunity as it
applies between them. The relevant law as between the Parties will necessarily be
348
customary international law, as it was in the Jurisdictional Immunities case.
In that case, the Court held that as between the parties, any e ntitlement to
immunity could only be derived from customary international law rather than
treaty; it was for the Court to determine the existence of international custom, as
347There are few examples of protest by States regarding the seizure of foreign passports. In 2011,
Australia did not protest the seizure of an Australian national’s passport by Jordanian authorities:
see D Welch, ‘Australian’s passport seized in Jordan’, The Sydney Morning Herald, 14 November
2011 [Annex 69]. In 2010, Guatemala made an official protest after Guatemalan passports were
seized and inspected by United States officials in Florida: see J Preston, ‘Guatemala protests arrest
of 3 in Florida over passports’, The New York Times, 19 January 2010 [Annex 70]. However, the
protest was due to the apparent detention of Guatemalan citizens, the disruption of dealings
between Guatemala and those citizens, and a lack of notification. The protest was not made on the
basis of inviolability of State documents. Also in 2010, Pakistan threatened to protest the seizure
of a Pakistani citizen’s passport by Indian authorities, on the basis that a court case should not
have been filed against a Pakistani citizen, not on the basis that the passport was inviolable: see
‘Pak may protest seizure of Shoaib’s passport’, The Indian Express, 5 April 2010 [Annex 71].
348Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J.
Reports 2012, 99 at [54]. 1991, and well before the adoption of the 2004 Convention. With regard to the
Foreign Sovereign Immunity Act 1976 (United States of America) and the
State Immunity Act 1978 (United Kingdom), these statutes were enacted before
the topic was considered in any great detail by the I nternational Law
353
Commission. Timor-Leste has manifestly failed to demonstrate through its
examples the extent to which national legislation is reflective of , and consistent
with, the provisions of the 2004 Convention. Further, its citation implies that
Australia, the United Kingdom and the United States of America are amongst the
very limited number of States which have ratified the 2004 Convention. This is
clearly incorrect, as none of these States are amongst the 16 States which have
ratified the 2004 Convention.
5.88. Moreover, the adoption of the 2004 Convention should not be regarded as
halting the continued development of cust omary international law.
State immunity has already undergone a significant development, progressing
from a broad -ranging concept of absolute app lication, to a restricted immunity
subject to a range of important situation s in which it does not apply. As Shaw
notes ‘[t]he enumeration of non -immunity situations is so long, that the true
situation of a rapidly diminishing exception to jurisdiction sh ould be
appreciated’. 354
5.89. There are already examples of State practice in which further exemptions
not included in the 2004 Convention have been enacted in domestic statutes.
For example, the United States of America and Canada have both enacted
provisions which provide an exception to State immunity in the event of alleged
353The United Nations General Assembly did not decide to include the topic of jurisdictional
immunity of States and their property until 1977. The International Law Commission first
considered the topic in its thirty-first session, in 1979.
354M N Shaw, International Law (6 ed., Cambridge University Press, 2008), 749.
1181991, and well before the adoption of the 2004 Convention. With regard to the
Foreign Sovereign Immunity Act 1976 (United States of America) and the
State Immunity Act 1978 (United Kingdom), these statutes were enacted before
the topic was considered in any great detail by the I nternational Law
353
Commission. Timor-Leste has manifestly failed to demonstrate through its
examples the extent to which national legislation is reflective of , and consistent
with, the provisions of the 2004 Convention. Further, its citation implies that
Australia, the United Kingdom and the United States of America are amongst the
very limited number of States which have ratified the 2004 Convention. This is
clearly incorrect, as none of these States are amongst the 16 States which have
ratified the 2004 Convention.
5.88. Moreover, the adoption of the 2004 Convention should not be regarded as
halting the continued development of cust omary international law.
State immunity has already undergone a significant development, progressing
from a broad -ranging concept of absolute app lication, to a restricted immunity
subject to a range of important situation s in which it does not apply. As Shaw
notes ‘[t]he enumeration of non -immunity situations is so long, that the true
situation of a rapidly diminishing exception to jurisdiction sh ould be
appreciated’. 354
5.89. There are already examples of State practice in which further exemptions
not included in the 2004 Convention have been enacted in domestic statutes.
For example, the United States of America and Canada have both enacted
provisions which provide an exception to State immunity in the event of alleged
353The United Nations General Assembly did not decide to include the topic of jurisdictional
immunity of States and their property until 1977. The International Law Commission first
considered the topic in its thirty-first session, in 1979.
354M N Shaw, International Law (6 ed., Cambridge University Press, 2008), 749. approach to State immunity and the abolition of an ‘absolute immunity of foreign
States’ in civil proceedings brought against the State as a party. It is re spectfully
submitted that the Court should be very cautious in seeking to apply by analogy
immunities applicable in civil proceedings to the quite different context of the
present case.
B. T HE LAW OF S TATE IMMUNITY DOES NOT APPLY IN THIS CASE , SINCE THERE IS
NO RELEVANT ‘PROCEEDING ’AGAINST A S TATE OR S TATE AGENT
5.92. Timor-Leste makes vague and unsupported assertions that Australia’s
actions impinged upon the immunity of Timor-Leste’s property. But the
customary law of State immunity does not apply in this case . Nor does the
2004 Convention (even if it were in force) purport to do so.
5.93. State immunity refers to immunity from the jurisdiction of the courts of
another State , and from measures of enforcement connected to a proceeding
before the courts of another State. Moreover it is confined to cases in which the
State, or a State agent, is an actual or necessary party: it is an immunity
in personam. With regard to the jurisdictional immunity of State property,
customary international law provides that such property is immune from measures
of constraint at both the pre -judgment and post -judgment stage of a proceeding
before a court of the forum State. In this sense, whether a foreign State is directly
impleaded, or is indirectly impleaded through measures against its property, there
must exist a proceeding before a court of the forum State. Issuing and executing
the warrant does not constitute the exercise of jurisdiction by an Australian court,
and the law of State immunity does not apply.
5.94. Further, even if a proceeding were on foot in this matter, it would
constitute a criminal proceeding. As established in Chapter 3, Australia’s actions
were in direct response to the prima facie unlawful disclosure of confidential
information by ‘K’ and Mr Collaery. If any future proceeding were to take place,
120approach to State immunity and the abolition of an ‘absolute immunity of foreign
States’ in civil proceedings brought against the State as a party. It is re spectfully
submitted that the Court should be very cautious in seeking to apply by analogy
immunities applicable in civil proceedings to the quite different context of the
present case.
B. T HE LAW OF STATE IMMUNITY DOES NOT APPLY IN THIS CASE ,SINCE THERE IS
NO RELEVANT ‘PROCEEDING ’AGAINST A S TATE OR S TATE AGENT
5.92. Timor-Leste makes vague and unsupported assertions that Australia’s
actions impinged upon the immunity of Timor-Leste’s property. But the
customary law of State immunity does not apply in this case . Nor does the
2004 Convention (even if it were in force) purport to do so.
5.93. State immunity refers to immunity from the jurisdiction of the courts of
another State , and from measures of enforcement connected to a proceeding
before the courts of another State. Moreover it is confined to cases in which the
State, or a State agent, is an actual or necessary party: it is an immunity
in personam. With regard to the jurisdictional immunity of State property,
customary international law provides that such property is immune from measures
of constraint at both the pre -judgment and post -judgment stage of a proceeding
before a court of the forum State. In this sense, whether a foreign State is directly
impleaded, or is indirectly impleaded through measures against its property, there
must exist a proceeding before a court of the forum State. Issuing and executing
the warrant does not constitute the exercise of jurisdiction by an Australian court,
and the law of State immunity does not apply.
5.94. Further, even if a proceeding were on foot in this matter, it would
constitute a criminal proceeding. As established in Chapter 3, Australia’s actions
were in direct response to the prima facie unlawful disclosure of confidential
information by ‘K’ and Mr Collaery. If any future proceeding were to take place, State could it be said that t he question of enjoyment of immunity has arisen’. 363
While Sucharitkul goes on to state that the notion of ‘being impleaded’ should be
liberally construed, what remains essential is that a ‘proceeding in effect seeks to
compel the State to submit to the jur isdiction or to bear the consequences of
364
judicial determination’ (emphasis added). Dupuy writes that:
There is a procedural objection to territorial jurisdiction according to which a
State or an international intergovernmental organisation may not be su ed in the
365
domestic courts of the territorial State.
5.97. Fox and Webb reiterate this point, stating that State immunity prevents a
foreign State from being made a party to proceedings in a national court of
another State, either directly or indirectly through proceedings against its
366
property.
5.98. The necessary relationship between State immunity and a proceeding
before a court of the forum State is confirmed in international jurisprudence and
treaty law. In the Jurisdictional Immunities case, the Court stated:
The rules of State immunity are procedural in character and are confined to
determining whether or n367the courts of one State may exercise jurisdiction in
respect of another State. (emphasis added)
5.99. The necessary connection between the exercise o f jurisdiction by a court
and the immunity enjoyed by a foreign State and its property is also highlighted in
363S Sucharitkul, ‘Immunity of States’ in M Bedjaoui (ed.), International Law: Achievements and
Prospects (Martinus Nijhoff Publishers, 1991), 333.
364S Sucharitkul, ‘Immunity of States’ in M Bedjaoui (ed.), International Law: Achievements and
Prospects (Martinus Nijhoff Publishers, 1991), 333.
365 th
P Dupuy, Droit international public (8 ed., Dalloz, 2006), 126 (‘Elle est une exception de
procédure opposée à la compétence territoriale d’après laquelle un État ou une organisation
internationale intergouvernementale ne peuvent être attraits devant les tribunaux internes de l’État
territorial’) (with English translation).
366H Fox and P Webb, The Law of State Immunity (3 ed., Oxford University Press, 2013), 11.
See also, R Jennings and A Watts, Oppenheim’s International Law (9 thed., Oxford University
Press, 1992), 342, 348-349.
367Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J.
Reports 2012, 99 at [93].
122State could it be said that t he question of enjoyment of immunity has arisen’. 363
While Sucharitkul goes on to state that the notion of ‘being impleaded’ should be
liberally construed, what remains essential is that a ‘proceeding in effect seeks to
compel the State to submit to the jur isdiction or to bear the consequences of
364
judicial determination’ (emphasis added). Dupuy writes that:
There is a procedural objection to territorial jurisdiction according to which a
State or an international intergovernmental organisation may not be su ed in the
365
domestic courts of the territorial State.
5.97. Fox and Webb reiterate this point, stating that State immunity prevents a
foreign State from being made a party to proceedings in a national court of
another State, either directly or indirectly through proceedings against its
366
property.
5.98. The necessary relationship between State immunity and a proceeding
before a court of the forum State is confirmed in international jurisprudence and
treaty law. In the Jurisdictional Immunities case, the Court stated:
The rules of State immunity are procedural in character and are confined to
determining whether or 367 the courts of one State may exercise jurisdiction in
respect of another State. (emphasis added)
5.99. The necessary connection between the exercise o f jurisdiction by a court
and the immunity enjoyed by a foreign State and its property is also highlighted in
363 S Sucharitkul, ‘Immunity of States’ in M Bedjaoui (ed.), International Law: Achievements and
Prospects (Martinus Nijhoff Publishers, 1991), 333.
364S Sucharitkul, ‘Immunity of States’ in M Bedjaoui (ed.), International Law: Achievements and
Prospects (Martinus Nijhoff Publishers, 1991), 333.
365 th
P Dupuy, Droit international public (8 ed., Dalloz, 2006), 126 (‘Elle est une exception de
procédure opposée à la compétence territoriale d’après laquelle un État ou une organisation
internationale intergouvernementale ne peuvent être attraits devant les tribunaux internes de l’État
territorial’) (with English translation).
366H Fox and P Webb, The Law of State Immunity (3 ed., Oxford University Press, 2013), 11.
See also, R Jennings and A Watts, Oppenheim’s International Law (9 thed., Oxford University
Press, 1992), 342, 348-349.
367Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J.
Reports 2012, 99 at [93]. 372
from the jurisdiction of Argentinian Courts’; under the Canadian
State Immunity Act, ‘a foreign state is immune from the jurisdiction of any court
373
in Canada’; in Singapore, a foreign State is immune from the ‘jurisdiction of
374
the courts of Singapore’; and under the Foreign Sovereign Immunity Act 1976
(United States of America), a foreign state shal l be immune from the jurisdiction
375
‘of the courts of the United States and of the States’.
5.102. The existence of a proceeding before a court is also a necessary corollary
of State immunity from measures of constraint. In the context of State immunity,
measures of constraint are coercive or enforcement measures taken by a ‘court
either to restrain the foreign State in the disposition of its property ’, or ‘otherwise
to attach, arrest or seize the property of the foreign State ’.376 Further, State
immunity from measures of constraint is broadly conceptualised in the
2004 Convention to cover all forms of judicially ordered measures of
constraint. 377
5.103. Domestic legislation similarly requires a connection between the claimed
immunity from a measure of constraint a nd a proceeding before a court.
For example, the FSI Act provides that:
372Immunity of foreign States from the jurisdiction of Argentinian Courts, Law no. 24,488
(Argentina), Artículo 1 (Translation provided in A Dickinson, R Lindsay and J Loonam, State
Immunity: Selected Materials and Commentary (Oxford University Press, 2004), 465-468).
373State Immunity Act 1985 (Canada), s 3(1) (accessed at <http://laws-lois.justice.gc.ca/eng/
acts/S-18/> on 20 July 2014).
374State Immunity Act 1979 (Singapore), s 3(1) (accessed at <http://statutes.agc.gov.sg/aol/
search/display/view.w3p;page=0;query=DocId%3A%221be1a8f7-0968-4fcc-ac26-
39d3a51b7b70%22%20Status%3Ainforce%20Depth%3A0;rec=0> on 20 July 2014).
375Foreign Sovereign Immunities Act 1976, 28 United States Code (United States of America),
s 1604 (accessed at <http://www.law.cornell.edu/uscode/text/28/part-IV/chapter-97> on 20 July
2014).
376
X Yang, State Immunity in International Law (Cambridge University Press, 2012), 343.
377
C Brown and R O’Keefe, ‘Part IV: State Immunity from Measures of Constraint in Connection
with Proceeding before a Court’, in R O’Keefe and C Tams (eds.), The United Nations Convention
on Jurisdictional Immunities of States and Their Property: A Commentary (Oxford University
Press, 2013), 287.
124 372
from the jurisdiction of Argentinian Courts’; under the Canadian
State Immunity Act, ‘a foreign state is immune from the jurisdiction of any court
373
in Canada’; in Singapore, a foreign State is immune from the ‘jurisdiction of
374
the courts of Singapore’; and under the Foreign Sovereign Immunity Act 1976
(United States of America), a foreign state shal l be immune from the jurisdiction
375
‘of the courts of the United States and of the States’.
5.102. The existence of a proceeding before a court is also a necessary corollary
of State immunity from measures of constraint. In the context of State immunity,
measures of constraint are coercive or enforcement measures taken by a ‘court
either to restrain the foreign State in the disposition of its property ’, or ‘otherwise
to attach, arrest or seize the property of the foreign State ’.376 Further, State
immunity from measures of constraint is broadly conceptualised in the
2004 Convention to cover all forms of judicially ordered measures of
constraint. 377
5.103. Domestic legislation similarly requires a connection between the claimed
immunity from a measure of constraint a nd a proceeding before a court.
For example, the FSI Act provides that:
372Immunity of foreign States from the jurisdiction of Argentinian Courts, Law no. 24,488
(Argentina), Artículo 1 (Translation provided in A Dickinson, R Lindsay and J Loonam, State
Immunity: Selected Materials and Commentary (Oxford University Press, 2004), 465-468).
373State Immunity Act 1985 (Canada), s 3(1) (accessed at <http://laws-lois.justice.gc.ca/eng/
acts/S-18/> on 20 July 2014).
374State Immunity Act 1979 (Singapore), s 3(1) (accessed at <http://statutes.agc.gov.sg/aol/
search/display/view.w3p;page=0;query=DocId%3A%221be1a8f7-0968-4fcc-ac26-
39d3a51b7b70%22%20Status%3Ainforce%20Depth%3A0;rec=0> on 20 July 2014).
375Foreign Sovereign Immunities Act 1976, 28 United States Code (United States of America),
s 1604 (accessed at <http://www.law.cornell.edu/uscode/text/28/part-IV/chapter-97> on 20 July
2014).
376
X Yang, State Immunity in International Law (Cambridge University Press, 2012), 343.
377
C Brown and R O’Keefe, ‘Part IV: State Immunity from Measures of Constraint in Connection
with Proceeding before a Court’, in R O’Keefe and C Tams (eds.), The United Nations Convention
on Jurisdictional Immunities of States and Their Property: A Commentary (Oxford University
Press, 2013), 287. individual national law of the forum State determines the precise extent and
manner of application. 381 As Hess writes , ‘[i]t is the special feature of State
immunity that it is at the point of intersection of international law and national
procedural law’. 382
5.107. It is the domestic legal and constitutional framework of the forum State
which is determinative in establishing whether a partic ular body is capable of
being considered a ‘court’ of the forum State. Courts are constituted under, and
derive their jurisdictional powers and functions from, the domestic legal
frameworks in which they operate. These frameworks must be decisive in
ascertaining whether a body is a ‘court’ capable of exercising judicial or
quasi-judicial powers for the purpose of State immunity.
5.108. In its Memorial, Timor-Leste argues that what matters under customary
international law in determining whether a body is acting as a court is the function
and nature of the act and procedures in question. As Timor-Leste notes in its
Memorial, Article 2(1)(a) of the 2004 Convention defines a ‘court’ as ‘any organ
of a State, however named, entitled to exercise judicial functions’. The term
‘judicial functions’ is explained in the commentary to the Draft Articles on
Jurisdictional Immunities of States and Their Property . Relevantly, the
commentary provides:
that such functions vary under different constitutional and legal systems. For
this reason, the Commission decided not to include a definition of the term
“judicial functions” in the present article … Although judicial functions are
determined by the internal organizational structure of each State, the term does
not, for the purposes of the present articles, cover the administration of justice in
381 rd
H Fox and P Webb, The Law of State Immunity (3 ed., Oxford University Press, 2013), 17.
382B Hess, ‘The International Law Commission’s Draft Convention on the Jurisdictional
Immunities of States and Their Property’ (1993) 4 European Journal of International Law 269,
271.
126individual national law of the forum State determines the precise extent and
manner of application. 381 As Hess writes , ‘[i]t is the special feature of State
immunity that it is at the point of intersection of international law and national
procedural law’. 382
5.107. It is the domestic legal and constitutional framework of the forum State
which is determinative in establishing whether a partic ular body is capable of
being considered a ‘court’ of the forum State. Courts are constituted under, and
derive their jurisdictional powers and functions from, the domestic legal
frameworks in which they operate. These frameworks must be decisive in
ascertaining whether a body is a ‘court’ capable of exercising judicial or
quasi-judicial powers for the purpose of State immunity.
5.108. In its Memorial, Timor-Leste argues that what matters under customary
international law in determining whether a body is acting as a court is the function
and nature of the act and procedures in question. As Timor-Leste notes in its
Memorial, Article 2(1)(a) of the 2004 Convention defines a ‘court’ as ‘any organ
of a State, however named, entitled to exercise judicial functions’. The term
‘judicial functions’ is explained in the commentary to the Draft Articles on
Jurisdictional Immunities of States and Their Property . Relevantly, the
commentary provides:
that such functions vary under different constitutional and legal systems. For
this reason, the Commission decided not to include a definition of the term
“judicial functions” in the present article … Although judicial functions are
determined by the internal organizational structure of each State, the term does
not, for the purposes of the present articles, cover the administration of justice in
381 rd
H Fox and P Webb, The Law of State Immunity (3 ed., Oxford University Press, 2013), 17.
382B Hess, ‘The International Law Commission’s Draft Convention on the Jurisdictional
Immunities of States and Their Property’ (1993) 4 European Journal of International Law 269,
271. quasi-judicial functions under that State’s individual constitutional and legal
frameworks.
5.112. Accordingly, what is imperative in establishing whether a State has been
impleaded in a proceeding before a ‘court’ for the purposes of State immunity is
whether the body in question is exercising judicial or quasi -judicial powers under
the legal system of the forum State in a case in which the State is an actual or
necessary party. Under the FSI Act, a ‘proceeding’ is defined as a ‘pr oceeding in
a court’, but does not include ‘a prosecution for an offence or an appeal or other
proceeding in the nature of an appeal in relation to such a prosecution’. 387
A ‘court’ is defined as ‘a tribunal or other body (by whatever name called) that
has functions, or exercises powers, that are judicial functions or powers or are of a
388
kind similar to judicial functions or powers’. The Australian Law Refor m
Commission, in its report on f oreign State immunity on which the FSI Act is
based, recommended that the definition of ‘courts’ be broad enough to cover any
body in Australia which exercises judicial functions. 389 Those actions which
would ultimately constitute the ‘judicial functions’ in a particular State must be
determined on the basis of the constitutional and legal frameworks in place in that
State.
The Attorney-General was not exercising judicial or quasi-judicial functions
under Australian domestic law
5.113. The relevant action at issue in this case is the issuance of a warrant by the
Attorney-General of Australia, and the subsequent execution of that warrant to
search Mr Collaery’s premises for the purpose of substantially assisting the
collection of intelligence in respect of a security matter. Timor-Leste asserts that
387Foreign States Immunities Act 1985 (Cth), s 3(1) [Annex 46].
388
Foreign States Immunities Act 1985 (Cth), s 3(1) [Annex 46].
389Australian Law Reform Commission, Foreign State Immunity, ALRC Report 24, [76] (accessed
at <http://www.austlii.edu.au/au/other/lawreform/ALRC/1984/24.html> on 20 July 2014).
128quasi-judicial functions under that State’s individual constitutional and legal
frameworks.
5.112. Accordingly, what is imperative in establishing whether a State has been
impleaded in a proceeding before a ‘court’ for the purposes of State immunity is
whether the body in question is exercising judicial or quasi -judicial powers under
the legal system of the forum State in a case in which the State is an actual or
necessary party. Under the FSI Act, a ‘proceeding’ is defined as a ‘pr oceeding in
a court’, but does not include ‘a prosecution for an offence or an appeal or other
proceeding in the nature of an appeal in relation to such a prosecution’. 387
A ‘court’ is defined as ‘a tribunal or other body (by whatever name called) that
has functions, or exercises powers, that are judicial functions or powers or are of a
388
kind similar to judicial functions or powers’. The Australian Law Refor m
Commission, in its report on f oreign State immunity on which the FSI Act is
based, recommended that the definition of ‘courts’ be broad enough to cover any
body in Australia which exercises judicial functions. 389 Those actions which
would ultimately constitute the ‘judicial functions’ in a particular State must be
determined on the basis of the constitutional and legal frameworks in place in that
State.
The Attorney-General was not exercising judicial or quasi-judicial functions
under Australian domestic law
5.113. The relevant action at issue in this case is the issuance of a warrant by the
Attorney-General of Australia, and the subsequent execution of that warrant to
search Mr Collaery’s premises for the purpose of substantially assisting the
collection of intelligence in respect of a security matter. Timor-Leste asserts that
387Foreign States Immunities Act 1985 (Cth), s 3(1) [Annex 46].
388
Foreign States Immunities Act 1985 (Cth), s 3(1) [Annex 46].
389Australian Law Reform Commission, Foreign State Immunity, ALRC Report 24, [76] (accessed
at <http://www.austlii.edu.au/au/other/lawreform/ALRC/1984/24.html> on 20 July 2014). ascertainment of legal rights and obligations’. 392 Additionally, a judicial
determination obliges the parties to recognise the force and effect of the
determination, subject to any available appeal. 393
5.116. While the issuing of a warrant is a function which can be conferred on a
court, it does not necessarily constitute a n exercise of judicial power. The
position in Australian law was highlighted in Grollo v. Palmer, where the High
Court of Australia held that the power to issue a warrant is not part of the judicial
power of the Commonwealth because it did not involve an adjudication to
determine the rights of the parties. 394 The High Court of Australia made the
important distinction between the exercise of judicial power, and the need to
exercise a non-judicial power ‘judicially’, in the sense that the power ought to be
exercised fairly and without bias. 395 The decision to issue a search warrant is a
power of the latter kind, namely a non-judicial power, exercised fairly and without
bias. Australia is not un ique in this sense. For example, the Irish Law Reform
Commission has written that it is well established in Irish law that the issuing of a
search warrant is an administrative, rather than judicial, function. 396 Similarly, in
392Precision Data Holdings Ltd v. Wills (1991) 173 CLR 167, 189-190 [Annex 21], citing Re
Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia
(1987) 163 CLR 656, 666 [Annex 22].
393Attorney-General (Commonwealth) v. Alinta Ltd (2008) 233 CLR 542, [158]-[159], [173]
[Annex 23].
394
Grollo v. Palmer (1995) 184 CLR 348, 360 [Annex 25]. In Love v. Attorney-General (NSW),
the High Court of Australia held that the power conferred by a State law on the Supreme Court of
New South Wales to issue a warrant authorising the use of a listening device was an administrative
not a judicial power. Nor was the act of exercising the power a judicial act in the sense of an
adjudication to determine the rights of parties: Love v. Attorney-General (NSW) (1990) 169 CLR
307, 320-322 [Annex 26].
395Grollo v. Palmer (1995) 184 CLR 348, 359-360 [Annex 25].
396Irish Law Reform Commission, Search Warrants and Bench Warrants (2009), [4.16] (accessed
at <http://www.lawreform.ie/_fileupload/consultation%20papers/cpSearchWarra…
BenchWarrants.pdf> on 20 July 2014). The Criminal Justice (Search Warrants) Act 2012
(Ireland) (accessed at <http://www.irishstatutebook.ie/2012/en/act/pub/0033/sec0001.html#sec1>
on 20 July 2014) authorises certain members of the Garda Síochána (the Irish police force) to issue
search warrants, provided they are independent of the investigation concerning the offence to
130ascertainment of legal rights and obligations’. 392 Additionally, a judicial
determination obliges the parties to recognise the force and effect of the
determination, subject to any available appeal. 393
5.116. While the issuing of a warrant is a function which can be conferred on a
court, it does not necessarily constitute a n exercise of judicial power. The
position in Australian law was highlighted in Grollo v. Palmer, where the High
Court of Australia held that the power to issue a warrant is not part of the judicial
power of the Commonwealth because it did not involve an adjudication to
determine the rights of the parties. 394 The High Court of Australia made the
important distinction between the exercise of judicial power, and the need to
exercise a non-judicial power ‘judicially’, in the sense that the power ought to be
exercised fairly and without bias. 395 The decision to issue a search warrant is a
power of the latter kind, namely a non-judicial power, exercised fairly and without
bias. Australia is not un ique in this sense. For example, the Irish Law Reform
Commission has written that it is well established in Irish law that the issuing of a
search warrant is an administrative, rather than judicial, function. 396 Similarly, in
392Precision Data Holdings Ltd v. Wills (1991) 173 CLR 167, 189-190 [Annex 21], citing Re
Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia
(1987) 163 CLR 656, 666 [Annex 22].
393Attorney-General (Commonwealth) v. Alinta Ltd (2008) 233 CLR 542, [158]-[159], [173]
[Annex 23].
394
Grollo v. Palmer (1995) 184 CLR 348, 360 [Annex 25]. In Love v. Attorney-General (NSW),
the High Court of Australia held that the power conferred by a State law on the Supreme Court of
New South Wales to issue a warrant authorising the use of a listening device was an administrative
not a judicial power. Nor was the act of exercising the power a judicial act in the sense of an
adjudication to determine the rights of parties: Love v. Attorney-General (NSW) (1990) 169 CLR
307, 320-322 [Annex 26].
395Grollo v. Palmer (1995) 184 CLR 348, 359-360 [Annex 25].
396Irish Law Reform Commission, Search Warrants and Bench Warrants (2009), [4.16] (accessed
at <http://www.lawreform.ie/_fileupload/consultation%20papers/cpSearchWarra…
BenchWarrants.pdf> on 20 July 2014). The Criminal Justice (Search Warrants) Act 2012
(Ireland) (accessed at <http://www.irishstatutebook.ie/2012/en/act/pub/0033/sec0001.html#sec1>
on 20 July 2014) authorises certain members of the Garda Síochána (the Irish police force) to issue
search warrants, provided they are independent of the investigation concerning the offence to 400
issued by the Secretary of State. Finally, the New Zealand Security Intelligence
Service Act 1969 provides that the Minister responsible for the New Zealand
Security Intelligence Service and the Commissioner of Security Warrants may
jointly issue a warrant, authorising the seizure of communications or
401
documents.
5.118. Timor-Leste cites the Court’s decision in the Arrest Warrant case as
evidence that the ‘mere issue’ of a warrant constitutes a judicial action and a
violation of immunity. 402 However, the Court’s reasoning in the Arrest Warrant
case can be distinguished on this point, as it concerned the breach of inviolability
enjoyed by a serving Foreign Minister under international law. 403
Such inviolability confers upon the relevant subject protection from all forms of
jurisdiction in the forum State, including non -judicial for ms of jurisdiction.
As such, the Court’s decision in the Arrest Warrant case was not reliant on a
determination of the judicial character of the issuance of the warrant. There is no
general inviolability with regard to State property, and the Arrest Warrant case is
quite different from the current case before the Court. Further, the Court in the
Arrest Warrant case gave due consideration to the ‘nature and purpose’ of the
warrant in question, including the fact that the warrant had been issued by the
404
judicial authorities of Belgium. In this case, no judicial authority in Australia
was involved in the issuing or execution of the search warrant the subject of the
dispute.
400Regulation of Investigatory Powers Act 2000 (United Kingdom), s 7(1) (accessed at <http://
www.legislation.gov.uk/ukpga/2000/23/pdfs/ukpga_20000023_en.pdf> on 20 July 2014).
401
New Zealand Security Intelligence Service Act 1969, s 4A (accessed at <http://www.legislation.
govt.nz/act/public/1969/0024/latest/whole.html#DLM391815> on 20 July 2014).
402
Timor-Leste, Memorial, [5.42].
403Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
I.C.J. Reports 2002, 3 at [70].
404Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
I.C.J. Reports 2002, 3 at [70].
132 400
issued by the Secretary of State. Finally, the New Zealand Security Intelligence
Service Act 1969 provides that the Minister responsible for the New Zealand
Security Intelligence Service and the Commissioner of Security Warrants may
jointly issue a warrant, authorising the seizure of communications or
401
documents.
5.118. Timor-Leste cites the Court’s decision in the Arrest Warrant case as
evidence that the ‘mere issue’ of a warrant constitutes a judicial action and a
violation of immunity. 402 However, the Court’s reasoning in the Arrest Warrant
case can be distinguished on this point, as it concerned the breach of inviolability
enjoyed by a serving Foreign Minister under international law. 403
Such inviolability confers upon the relevant subject protection from all forms of
jurisdiction in the forum State, including non -judicial for ms of jurisdiction.
As such, the Court’s decision in the Arrest Warrant case was not reliant on a
determination of the judicial character of the issuance of the warrant. There is no
general inviolability with regard to State property, and the Arrest Warrant case is
quite different from the current case before the Court. Further, the Court in the
Arrest Warrant case gave due consideration to the ‘nature and purpose’ of the
warrant in question, including the fact that the warrant had been issued by the
404
judicial authorities of Belgium. In this case, no judicial authority in Australia
was involved in the issuing or execution of the search warrant the subject of the
dispute.
400Regulation of Investigatory Powers Act 2000 (United Kingdom), s 7(1) (accessed at <http://
www.legislation.gov.uk/ukpga/2000/23/pdfs/ukpga_20000023_en.pdf> on 20 July 2014).
401
New Zealand Security Intelligence Service Act 1969, s 4A (accessed at <http://www.legislation.
govt.nz/act/public/1969/0024/latest/whole.html#DLM391815> on 20 July 2014).
402
Timor-Leste, Memorial, [5.42].
403Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
I.C.J. Reports 2002, 3 at [70].
404Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
I.C.J. Reports 2002, 3 at [70]. Without exception, the legislation in countries with State immunity statutes
407
excludes criminal proceedings from the application of those statutes. There is
thus a clear distinction both at international and domestic law between civil and
criminal proceedings. Timor-Leste claims that ‘customary law on the immunity
of the State and its property has developed so as to allow for exceptions only in
408
civil proceedings’. Further, Timor-Leste claims that:
in relation to criminal (and any other non -civil) proceed ings, customary
international law dictates the absolute inviolability and immunity of a State and
its property from domestic jurisdiction, 409tever its nature, whenever the
customary exceptions are not applicable.
However, Timor-Leste does not provide any support for this assertion, which has
been questioned. 410
International Law Commission 1991 Volume II Part 2, A/CN.4/SER.4/1991/Add.1 (Part 2), Draft
Article 2 Commentary (2), 14). UN General Assembly Resolution 59/38 expressly states that the
General Assembly ‘agrees with the general understanding reached in the Ad Hoc Committee that
the 2004 Convention on Jurisdictional Immunities of States and their Property does not cover
criminal proceedings’ (UN General Assembly Resolution 59/38, ‘United Nations Convention on
Jurisdictional Immunities of States and Their Property’, A/RES/59/38, 2 December 2004). This is
in accordance with a recommendation of the Ad Hoc Committee expressly mentioned in Mr
Hafner’s statement in the Sixth Committee when introducing the report of the Ad Hoc Committee
and which itself is referred to in the Resolution. (See Summary Record of the 13thmeeting of the
Sixth Committee, New York, 25 October 2004, A/C.6/59/SR.13, [32]).
407The State Immunity Act 1978 (United Kingdom) is expressly stated not to apply to criminal
proceedings (s 16(4)). Similar provisions exist in the State Immunity Act 1979 (Singapore),
s 19(2)(b); the State Immunity Ordinance 1981 (Pakistan), s 17(2)(b), in A Dickinson, R Lindsay
and J Loonam, State Immunity: Selected Materials and Commentary (Oxford University Press,
2004), 496-503; the State Immunity Act 1982 (Canada), s 18 (this Act does not apply to criminal
proceedings or proceedings in the nature of criminal proceedings). The Foreign States Immunities
Act 1985 (Cth), s 3(1) defines a proceeding as not including ‘a prosecution for an offence or an
appeal or other proceeding in the nature of an appeal in relation to such a proceeding’ [Annex 46].
The Foreign Sovereign Immunities Act 1976, 28 United States Code (United States of America),
s 1330(a) expressly limits jurisdiction to ‘any nonjury civil action’.
408
Timor-Leste, Memorial, [5.21].
409
Timor-Leste, Memorial, [5.28].
410
In this regard, see R Higgins, Themes & Theories: Selected Essays, Speeches, and Writings in
International Law (Oxford University Press 2009), 327. Higgins states that ‘there remains
uncertainty as to whether States are indeed obliged to grant the same immunities when
infringements of criminal law are concerned’.
134Without exception, the legislation in countries with State immunity statutes
407
excludes criminal proceedings from the application of those statutes. There is
thus a clear distinction both at international and domestic law between civil and
criminal proceedings. Timor-Leste claims that ‘customary law on the immunity
of the State and its property has developed so as to allow for exceptions only in
408
civil proceedings’. Further, Timor-Leste claims that:
in relation to criminal (and any other non -civil) proceed ings, customary
international law dictates the absolute inviolability and immunity of a State and
its property from domestic jurisdiction,409atever its nature, whenever the
customary exceptions are not applicable.
However, Timor-Leste does not provide any support for this assertion, which has
been questioned. 410
International Law Commission 1991 Volume II Part 2, A/CN.4/SER.4/1991/Add.1 (Part 2), Draft
Article 2 Commentary (2), 14). UN General Assembly Resolution 59/38 expressly states that the
General Assembly ‘agrees with the general understanding reached in the Ad Hoc Committee that
the 2004 Convention on Jurisdictional Immunities of States and their Property does not cover
criminal proceedings’ (UN General Assembly Resolution 59/38, ‘United Nations Convention on
Jurisdictional Immunities of States and Their Property’, A/RES/59/38, 2 December 2004). This is
in accordance with a recommendation of the Ad Hoc Committee expressly mentioned in Mr
Hafner’s statement in the Sixth Committee when introducing the report of the Ad Hoc Committee
and which itself is referred to in the Resolution. (See Summary Record of the 13 thmeeting of the
Sixth Committee, New York, 25 October 2004, A/C.6/59/SR.13, [32]).
407The State Immunity Act 1978 (United Kingdom) is expressly stated not to apply to criminal
proceedings (s 16(4)). Similar provisions exist in the State Immunity Act 1979 (Singapore),
s 19(2)(b); the State Immunity Ordinance 1981 (Pakistan), s 17(2)(b), in A Dickinson, R Lindsay
and J Loonam, State Immunity: Selected Materials and Commentary (Oxford University Press,
2004), 496-503; the State Immunity Act 1982 (Canada), s 18 (this Act does not apply to criminal
proceedings or proceedings in the nature of criminal proceedings). The Foreign States Immunities
Act 1985 (Cth), s 3(1) defines a proceeding as not including ‘a prosecution for an offence or an
appeal or other proceeding in the nature of an appeal in relation to such a proceeding’ [Annex 46].
The Foreign Sovereign Immunities Act 1976, 28 United States Code (United States of America),
s 1330(a) expressly limits jurisdiction to ‘any nonjury civil action’.
408
Timor-Leste, Memorial, [5.21].
409
Timor-Leste, Memorial, [5.28].
410
In this regard, see R Higgins, Themes & Theories: Selected Essays, Speeches, and Writings in
International Law (Oxford University Press 2009), 327. Higgins states that ‘there remains
uncertainty as to whether States are indeed obliged to grant the same immunities when
infringements of criminal law are concerned’. property enjoys immunity from use for evidentiary purposes in such proceedings
nor for the proposition that (if such immunity exists) it would be absolute. The
proposition that a State is entitled to require unconditionally the immediate return
of property, located in a forum State, removed from private premises in
accordance with the law of the forum State , and which constitutes material
evidence in actual or apprehended criminal proceed ings in that State, is one for
which there is no authority.
5.126. With respect to the specific category of diplomatic property, which is
covered by a specific regime under international law, State practice is conflicting.
In the Canadian case of Rose v . The King , the court held that the general
inviolability of mission documents was subject to an exception in the case of
documents which put the safety of the State to which the mission was accredited
in peril. In that case, once seized by the Canadian State , the documents lost the
privilege of immunity and were subsequently tendered as evidence against a
413
Canadian national. This case was distinguished (but not rejected) in the British
414
case of Fayed v. Al-Tajir.
5.127. While these examples are not directly app licable in this case (since the
Materials are not diplomatic property and do not attract the protection of that
regime), they are nonetheless illuminating. The fact that exceptions have been
contemplated to the inviolability of diplomatic documents (which are subject to
more extensive protections than any other form of State property) s uggests that
the immunity of other types of State property tendered as evidence in criminal
proceedings is doubtful as a matter of customary international law.
5.128. Moreover, t here must be a distinction between foreign State property
being the subject of criminal proceedings (for example, criminal confiscation) and
413Rose v. The King [1947] 88 CCC 114, 147 (per Bissonette J) [ Annex 27].
414
Fayed v. Al-Tajir [1988] 1 QB 712 [Annex 28].
136property enjoys immunity from use for evidentiary purposes in such proceedings
nor for the proposition that (if such immunity exists) it would be absolute. The
proposition that a State is entitled to require unconditionally the immediate return
of property, located in a forum State, removed from private premises in
accordance with the law of the forum State , and which constitutes material
evidence in actual or apprehended criminal proceed ings in that State, is one for
which there is no authority.
5.126. With respect to the specific category of diplomatic property, which is
covered by a specific regime under international law, State practice is conflicting.
In the Canadian case of Rose v . The King , the court held that the general
inviolability of mission documents was subject to an exception in the case of
documents which put the safety of the State to which the mission was accredited
in peril. In that case, once seized by the Canadian State , the documents lost the
privilege of immunity and were subsequently tendered as evidence against a
413
Canadian national. This case was distinguished (but not rejected) in the British
414
case of Fayed v. Al-Tajir.
5.127. While these examples are not directly app licable in this case (since the
Materials are not diplomatic property and do not attract the protection of that
regime), they are nonetheless illuminating. The fact that exceptions have been
contemplated to the inviolability of diplomatic documents (which are subject to
more extensive protections than any other form of State property) s uggests that
the immunity of other types of State property tendered as evidence in criminal
proceedings is doubtful as a matter of customary international law.
5.128. Moreover, t here must be a distinction between foreign State property
being the subject of criminal proceedings (for example, criminal confiscation) and
413Rose v. The King [1947] 88 CCC 114, 147 (per Bissonette J) [ Annex 27].
414
Fayed v. Al-Tajir [1988] 1 QB 712 [Annex 28].138 Chapter 6 – Conclusion
6.1. In this Chapter, Australia will conclude its submissions with some final
observations.
6.2. Section I summarises Australia’s key arguments. Section II submits that,
even if the Court considers that certain of Timor-Leste’s claims can be made out,
the remedies sought by Timor-Leste are unnecessary and disproportionate and
should not be ordered.
Section I. Australia’s key arguments
6.3. For the reasons given in this Counter-Memorial, the actions of ASIO were
a legitimate and lawful exercise of Australia’s territorial sovereignty, undertaken
for a proper purpose and accompanied by steps to mitigate the risk of harm to any
potential rights of Timor-Leste. As a matter of law, any exceptions to the exercise
of such territorial sovereignty must have a proper legal basis, and their scope must
be appropriately limited. As a matter of fact, any such exceptions must be
properly shown to apply in the circumstances of the case.
6.4. In Australia’s su bmission, the rights claimed by Timor-Leste in these
proceedings are not established at international law, and they do not , in any case,
apply in these circumstances as a matter of fact.
6.5. First, Timor-Leste claims an unqualified right of confidentiality (w hich it
conflates with a right of legal professional privilege), with a broad scope which
would preclude Australia from exercising jurisdiction over Australian nationals in
respect of acts committed within Australia’s territory – acts which are criminal
under the law of all , or almost all , States. Timor-Leste seeks to apply this
purported right with no exceptions, which would allow it (and any other State) to
use such a right for an improper purpose, including as a shield for the commission
of criminal offences.
139 6.6. In Australia’s submission, there is no unqualified right of confidentiality
or legal professional privilege such as that proposed by Timor-Leste, and no basis
for asserting that either right is a general principle of law. But even if such an
unprovenanced right did exist, its scope must necessarily be limited to
appropriately recognise Australia’s territorial jurisdiction, in particular, in a way
which would prevent it being used for an improper purpose. Moreover, even if
the scope of such a right w as so broad as to protect the actions of Mr Collaery
from the exercise of Australia’s jurisdiction in this case, the measures put in place
by Australia are clearly sufficient to prevent any harm to Timor-Leste in the
Arbitration. Further, and in any case , Timor-Leste has waived any right of
confidentiality over certain Materials by its public disclosures (through
Mr Collaery) of confidential national security information.
6.7. Second, Timor-Leste makes a largely unsupported claim to ownership
over the Materials, and asserts that they are protected by a general principle of
inviolability and immunity of foreign State property with apparently unlimited
application. In contrast to the purported rights of confidential ity and legal
professional privilege (the existence and scope of which have not been
established), the principles of inviolability and immunity are well -established at
international law, but their scope is clearly defined and limited. Importantly, they
are separate and distinct principles, with separate and distinct application. They
have no application in the circumstances of this case.
6.8. In Australia’s submission, the principle of inviolability applies with
respect to specific, limited categories of pers ons and property, none of which are
remotely in issue in this case. Similarly, the principle of foreign State immunity
only applies with respect to proceedings before a court or equivalent judicial
instance in which the foreign State is directly or indire ctly impleaded; it operates
as a procedural bar to protect foreign States from the jurisdiction of forum States
in certain circumstances. There is no such proceeding in this case, nor any other
1406.6. In Australia’s submission, there is no unqualified right of confidentiality
or legal professional privilege such as that proposed by Timor-Leste, and no basis
for asserting that either right is a general principle of law. But even if such an
unprovenanced right did exist, its scope must necessarily be limited to
appropriately recognise Australia’s territorial jurisdiction, in particular, in a way
which would prevent it being used for an improper purpose. Moreover, even if
the scope of such a right w as so broad as to protect the actions of Mr Collaery
from the exercise of Australia’s jurisdiction in this case, the measures put in place
by Australia are clearly sufficient to prevent any harm to Timor-Leste in the
Arbitration. Further, and in any case , Timor-Leste has waived any right of
confidentiality over certain Materials by its public disclosures (through
Mr Collaery) of confidential national security information.
6.7. Second, Timor-Leste makes a largely unsupported claim to ownership
over the Materials, and asserts that they are protected by a general principle of
inviolability and immunity of foreign State property with apparently unlimited
application. In contrast to the purported rights of confidential ity and legal
professional privilege (the existence and scope of which have not been
established), the principles of inviolability and immunity are well -established at
international law, but their scope is clearly defined and limited. Importantly, they
are separate and distinct principles, with separate and distinct application. They
have no application in the circumstances of this case.
6.8. In Australia’s submission, the principle of inviolability applies with
respect to specific, limited categories of pers ons and property, none of which are
remotely in issue in this case. Similarly, the principle of foreign State immunity
only applies with respect to proceedings before a court or equivalent judicial
instance in which the foreign State is directly or indire ctly impleaded; it operates
as a procedural bar to protect foreign States from the jurisdiction of forum States
in certain circumstances. There is no such proceeding in this case, nor any other information are held (in either electronic or hard copy form) by
Timor-Leste, Mr Collaery, or other Counsel representing Timor-Leste
(as acknowledged by Counsel for Timor-Leste at the First Procedural
Meeting), 416and
(2) Timor-Leste’s position in the Arbitration is not prejudiced in any way.
In accordance with the undertakings given by the Attorney-General of
Australia, the Materials have not been and will not be made available
to anyone involved in conducting the Arbitration (or these
proceedings) on behalf of Australia.
6.12. It is therefore evid ent that with respect to its current relations with
Australia, Timor-Leste remains in the position which it was in prior to
3 December 2013: the content of the Materials remains available to Timor-Leste
and its legal advisers , but is not available to Australia for the purposes of the
Arbitration.
6.13. Moreover, Timor-Leste’s position with respect to any hypothetical future
negotiations with Australia has not been prejudiced in any way. In accordance
with the Attorney-General’s undertaking, the Materials will not be made available
to any part of the Australian Government for any purpose other than national
security purposes (which would, in effect, consist of investigation and potential
prosecution of the unlawful disclosures as discuss ed in Chapter 3 of thi s
Counter-Memorial) until final judgment in this proceeding, or further or earlier
order of the Court.
416
Permanent Court of Arbitration, ‘Transcript of First Procedural Meeting between Timor-Leste
and Australia at The Hague’, Arbitration under the Timor Sea Treaty, 5 December 2013, 39 (lines
14-20) and 42 (lines 8-11) (Lowe) [Annex 85].
142 information are held (in either electronic or hard copy form) by
Timor-Leste, Mr Collaery, or other Counsel representing Timor-Leste
(as acknowledged by Counsel for Timor-Leste at the First Procedural
Meeting), 416 and
(2) Timor-Leste’s position in the Arbitration is not prejudiced in any way.
In accordance with the undertakings given by the Attorney-General of
Australia, the Materials have not been and will not be made available
to anyone involved in conducting the Arbitration (or these
proceedings) on behalf of Australia.
6.12. It is therefore evid ent that with respect to its current relations with
Australia, Timor-Leste remains in the position which it was in prior to
3 December 2013: the content of the Materials remains available to Timor-Leste
and its legal advisers , but is not available to Australia for the purposes of the
Arbitration.
6.13. Moreover, Timor-Leste’s position with respect to any hypothetical future
negotiations with Australia has not been prejudiced in any way. In accordance
with the Attorney-General’s undertaking, the Materials will not be made available
to any part of the Australian Government for any purpose other than national
security purposes (which would, in effect, consist of investigation and potential
prosecution of the unlawful disclosures as discuss ed in Chapter 3 of thi s
Counter-Memorial) until final judgment in this proceeding, or further or earlier
order of the Court.
416
Permanent Court of Arbitration, ‘Transcript of First Procedural Meeting between Timor-Leste
and Australia at The Hague’, Arbitration under the Timor Sea Treaty, 5 December 2013, 39 (lines
14-20) and 42 (lines 8-11) (Lowe) [Annex 85]. practice. Timor-Leste has not provided any reasons in support of its request that
the Court should depart from this established practice.
144practice. Timor-Leste has not provided any reasons in support of its request that
the Court should depart from this established practice.146 Certification
I certify that the Annexes are true copies of the documents referred to and that the
translations provided are accurate.
J. D. Reid
Agent of Australia
21 July 2014
147148 Appendix – The Arbitration and the Timor Sea treaty
regime
1. This Appendix responds to the remarks in Timor-Leste’s Memorial
regarding the Arbitration and the Timor Sea treaty regime in order to correct a
number of errors and omissions. In particular:
(1) the details of these matters are not relevant to the dispute before the
Court
(2) Timor-Leste’s remarks about these matters are selective and
incomplete, and
(3) Timor-Leste repeats as fact allegations which have not been proved
and which are yet to be tested before the Arbitral Tribunal.
Section I. The details of the Arbitration are not relevant to this
case
2. Although Timor-Leste states that the Arbitration is ‘quite separate from
418
the present case’, it devotes considerable time and effort to repeating before this
Court the arguments which it makes in the Arbitration. In particular, in Chapter III
of its Memorial, Timor-Leste repeats large parts of the Statement of Claim which
it has submitted in the Arbitration (and goes so far as to annex almost the entire
419
Statement of Claim to the Memorial). Timor-Lestedoes this because, it asserts,
the Arbitration ‘forms part of the background’ 420to this case and because some of
the Materials inspected and retained by ASIO ‘were prepared by Timor-Leste’s
legal Counsel for the [Timor Sea Treaty]Arbitration’. 421
418
Timor-Leste, Memorial, [1.8].
419Timor-Leste, Memorial, [3.4] and Annex 5.
420
Timor-Leste, Memorial, [3.1].
421Timor-Leste, Memorial, [3.8].
149 3. The details of the Arbitration and the submissions of the Parties in the
Arbitration are irrelevant and should not be taken into account by the Court. First,
the details of Timor-Leste’s pleadings in the Arbitration are unable to establish the
content or purpose of the Materials or shed any further light on the issues in
dispute between the Parties in these proceedings. Second, Timor-Leste’s
pleadings state the case of only one of the Parties and, as such, cannot be accepted
as an objective representation of the facts. Finally, Australia submits that
Timor-Leste’s Statement o f Claim, is, and should remain, confidential to the
Parties to the case (noting that the Arbitral Tribunal will be making final orders on
this following the conclusion of the Arbitration).
4. As reflected in Chapter 3 of this Counter-Memorial, there are only two key
facts about the Arbitration which are relevant to this case:
(1) there is currently an Arbitration between Australia and Timor-Leste,
and
(2) Mr Collaery was at one point engaged by Timor-Leste to assist with
legal matters in the Arbitration, although he is apparently no longer so
engaged.
5. For completeness, Australia will provide some brief, additional
information in response to Timor-Leste’s selective and incomplete submissions on
the Arbitration.
6. On 23 April 2013, Timor-Leste initiated Arbitration under Article 23 of
422
the Timor Sea Treaty, in which it argues that the Treaty between Australia and
the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in
the Timor Sea 2006 (‘CMATS’) is invalid. Australia submitted a Response to
Timor-Leste’s Notice of Arbitration on 19 June 2013 and continues to actively
422
Timor-Leste, ‘Notice of Arbitration’, Arbitration under the Timor Sea Treaty, 23 April 2013
[Annex 92].
1503. The details of the Arbitration and the submissions of the Parties in the
Arbitration are irrelevant and should not be taken into account by the Court. First,
the details of Timor-Leste’s pleadings in the Arbitration are unable to establish the
content or purpose of the Materials or shed any further light on the issues in
dispute between the Parties in these proceedings. Second, Timor-Leste’s
pleadings state the case of only one of the Parties and, as such, cannot be accepted
as an objective representation of the facts. Finally, Australia submits that
Timor-Leste’s Statement o f Claim, is, and should remain, confidential to the
Parties to the case (noting that the Arbitral Tribunal will be making final orders on
this following the conclusion of the Arbitration).
4. As reflected in Chapter 3 of this Counter-Memorial, there are only two key
facts about the Arbitration which are relevant to this case:
(1) there is currently an Arbitration between Australia and Timor-Leste,
and
(2) Mr Collaery was at one point engaged by Timor-Leste to assist with
legal matters in the Arbitration, although he is apparently no longer so
engaged.
5. For completeness, Australia will provide some brief, additional
information in response to Timor-Leste’s selective and incomplete submissions on
the Arbitration.
6. On 23 April 2013, Timor-Leste initiated Arbitration under Article 23 of
422
the Timor Sea Treaty, in which it argues that the Treaty between Australia and
the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in
the Timor Sea 2006 (‘CMATS’) is invalid. Australia submitted a Response to
Timor-Leste’s Notice of Arbitration on 19 June 2013 and continues to actively
422
Timor-Leste, ‘Notice of Arbitration’, Arbitration under the Timor Sea Treaty, 23 April 2013
[Annex 92]. treaties, consistent with its rights at international law to enter into binding
international commitments (a core aspect of its sovereignty).
A. O UTLINE OF THE T IMOR SEA TREATY REGIME
10. Australia and Timor-Leste have not delimited the maritime zones in the
Timor Sea between the two States on a permanent basis. As a result of extended
negotiations – throughout which Timor-Leste had the benefit of expert advice –
Australia and Timor-Leste are party to three bilateral treaties which, consistent
with the United Nations Convention on the Law of the Sea 1982 (‘UNCLOS’), 424
establish and regulate the joint development of the petroleum r esources of the
Timor Sea. These treaties are the Timor Sea Treaty between the Government of
East Timor and the Government of Australia 2002 (‘Timor Sea Treaty’) 42, the
Agreement between the Government of Australia and the Government of the
Democratic Republic of Timor-Leste relating to the Unitisation of the Sunrise and
Troubadour Fields 2003 (‘IUA’) 426 and CMATS. They are ‘provisional
427
arrangements’ within the meaning of Article 83(3) of UNCLOS.
11. The Timor Sea Treaty establishes a join t development zone in the
Timor Sea. The IUA creates the framework for the integrated development of the
Sunrise and Troubadour gas fields (known collectively as the Greater Sunrise gas
fields), which extend beyond the joint development zone into an area of seabed
subject to e xclusive Australian jurisdiction, thus requiring unitisation. CMATS
424
United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982,
1835 UNTS 3 (entered into force 16 November 1994).
425
Timor Sea Treaty between the Government of East Timor and the Government of Australia,
Dili, 20 May 2002, 2258 UNTS 3, (entered into force 2 April 2003).
426Agreement between the Government of Australia and the Government of the Democratic
Republic of Timor-Leste relating to the Unitisation of the Sunrise and Troubadour Fields, Dili,
6 March 2003, 2483 UNTS 317 (entered into force 23 February 2007).
427United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982,
1835 UNTS 3 (entered into force 16 November 1994), Articles 74(3) and 83(3).
152treaties, consistent with its rights at international law to enter into binding
international commitments (a core aspect of its sovereignty).
A. O UTLINE OF THE T IMOR S EA TREATY REGIME
10. Australia and Timor-Leste have not delimited the maritime zones in the
Timor Sea between the two States on a permanent basis. As a result of extended
negotiations – throughout which Timor-Leste had the benefit of expert advice –
Australia and Timor-Leste are party to three bilateral treaties which, consistent
with the United Nations Convention on the Law of the Sea 1982 (‘UNCLOS’), 424
establish and regulate the joint development of the petroleum r esources of the
Timor Sea. These treaties are the Timor Sea Treaty between the Government of
East Timor and the Government of Australia 2002 (‘Timor Sea Treaty’) 425, the
Agreement between the Government of Australia and the Government of the
Democratic Republic of Timor-Leste relating to the Unitisation of the Sunrise and
Troubadour Fields 2003 (‘IUA’) 426 and CMATS. They are ‘provisional
427
arrangements’ within the meaning of Article 83(3) of UNCLOS.
11. The Timor Sea Treaty establishes a join t development zone in the
Timor Sea. The IUA creates the framework for the integrated development of the
Sunrise and Troubadour gas fields (known collectively as the Greater Sunrise gas
fields), which extend beyond the joint development zone into an area of seabed
subject to e xclusive Australian jurisdiction, thus requiring unitisation. CMATS
424
United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982,
1835 UNTS 3 (entered into force 16 November 1994).
425
Timor Sea Treaty between the Government of East Timor and the Government of Australia,
Dili, 20 May 2002, 2258 UNTS 3, (entered into force 2 April 2003).
426Agreement between the Government of Australia and the Government of the Democratic
Republic of Timor-Leste relating to the Unitisation of the Sunrise and Troubadour Fields, Dili,
6 March 2003, 2483 UNTS 317 (entered into force 23 February 2007).
427United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982,
1835 UNTS 3 (entered into force 16 November 1994), Articles 74(3) and 83(3). of the negotiations was subject to the oversight of Xanana Gusmão, Timor-Leste’s
former resistance leader, subsequently the first President of Timor-Leste and
current Prime Minister.
15. The negotiations led to the Memorandum of Understanding of Timor Sea
430
Arrangement (‘Timor Sea Arrangement’), which was signed on 5 July 2001,
and was specifically designed to be suitable for adoption as a treaty upon
Timor-Leste’s formal independence. The Timor Sea Treaty itself, which is almost
identical in terms to the Timor Sea Arrangement , was signed in Dili on
20 May 2002, the date of Timor-Leste’s independence. Australia and
Timor-Leste also signed an Exchange of Notes to give interim effect to the Timor
431
Sea Treaty pending its entry into force.
16. Consistent with Articles 74(3) and 83(3) of UNCLOS, the Timor Sea
Treaty is a provisional arrangement of a practical nature which does not prejudice
the final delimitation of maritime boundaries between Australia and
Timor-Leste. 432 It establishes a joint development zone, the Joint Petroleum
Niny Borges – an Australian-trained Timorese lawyer who had previously worked for the Timor
Gap Joint Authority and the Timor Sea Desig nated Authority; Paul Cleary – an experienced
Australian journalist; Kathryn Khamsi – a US lawyer, who completed her studies at Harvard
University and McGill University; Dr Jonathon Morrow – an Australian lawyer with a PhD from
Monash University; Philip Da niel – a British resource economist with several decades of
experience advising States on resource issues and who completed post -graduate studies at Oxford
University and Cambridge University; Dato Dominic Puthucheary – an experienced Malaysian
constitutional lawyer; Einar Risa – a Norwegian oil industry expert, who had several decades of
experience working for the Norwegian Foreign Ministry and the Norwegian national oil company,
Statoil; Alistair Watson – an expert in taxation and fiscal affairs; and Geir Ytreland – a Norwegian
geologist with several decades of experience working on oil and gas exploration and production
for companies including Unocal and Saudi Aramco.
430
Memorandum of Understanding of Timor Sea Arrangement, Dili, 5 July 2001 (accessed at
<http://www.austlii.edu.au/au/other/dfat/special/MOUTSA.html> on 20 July 2014).
431
Exchange of Notes Constituting an Agreement between the Government of Australia and the
Government of the Democratic Republic of East Timor concerning Arrangements for Exploration
and Exploitation of Petroleum in an Area of the Timor Sea between Australia and East Timor,
Dili, 20 May 2002, [2002] ATS 11 (entered into force 20 May 2002).
432
Timor Sea Treaty between the Government of East Timor and the Government of Australia,
Dili, 20 May 2002, 2258 UNTS 3 (entered into force 2 April 2003), Article 2.
154of the negotiations was subject to the oversight of Xanana Gusmão, Timor-Leste’s
former resistance leader, subsequently the first President of Timor-Leste and
current Prime Minister.
15. The negotiations led to the Memorandum of Understanding of Timor Sea
430
Arrangement (‘Timor Sea Arrangement’), which was signed on 5 July 2001,
and was specifically designed to be suitable for adoption as a treaty upon
Timor-Leste’s formal independence. The Timor Sea Treaty itself, which is almost
identical in terms to the Timor Sea Arrangement , was signed in Dili on
20 May 2002, the date of Timor-Leste’s independence. Australia and
Timor-Leste also signed an Exchange of Notes to give interim effect to the Timor
431
Sea Treaty pending its entry into force.
16. Consistent with Articles 74(3) and 83(3) of UNCLOS, the Timor Sea
Treaty is a provisional arrangement of a practical nature which does not prejudice
the final delimitation of maritime boundaries between Australia and
Timor-Leste. 432 It establishes a joint development zone, the Joint Petroleum
Niny Borges – an Australian-trained Timorese lawyer who had previously worked for the Timor
Gap Joint Authority and the Timor Sea Desig nated Authority; Paul Cleary – an experienced
Australian journalist; Kathryn Khamsi – a US lawyer, who completed her studies at Harvard
University and McGill University; Dr Jonathon Morrow – an Australian lawyer with a PhD from
Monash University; Philip Da niel – a British resource economist with several decades of
experience advising States on resource issues and who completed post -graduate studies at Oxford
University and Cambridge University; Dato Dominic Puthucheary – an experienced Malaysian
constitutional lawyer; Einar Risa – a Norwegian oil industry expert, who had several decades of
experience working for the Norwegian Foreign Ministry and the Norwegian national oil company,
Statoil; Alistair Watson – an expert in taxation and fiscal affairs; and Geir Ytreland – a Norwegian
geologist with several decades of experience working on oil and gas exploration and production
for companies including Unocal and Saudi Aramco.
430
Memorandum of Understanding of Timor Sea Arrangement, Dili, 5 July 2001 (accessed at
<http://www.austlii.edu.au/au/other/dfat/special/MOUTSA.html> on 20 July 2014).
431
Exchange of Notes Constituting an Agreement between the Government of Australia and the
Government of the Democratic Republic of East Timor concerning Arrangements for Exploration
and Exploitation of Petroleum in an Area of the Timor Sea between Australia and East Timor,
Dili, 20 May 2002, [2002] ATS 11 (entered into force 20 May 2002).
432
Timor Sea Treaty between the Government of East Timor and the Government of Australia,
Dili, 20 May 2002, 2258 UNTS 3 (entered into force 2 April 2003), Article 2. Arrangements put in place between the Parties 438 meant that revenue had been
flowing to Timor-Leste since October 2000. 439 This included royalties and tax
revenue, as Timor-Leste was permitted to apply its taxation laws to 90% of
petroleum produced in the JPDA from 20 May 2002, although the Timor Sea
Treaty was yet to enter into force. 440
19. Further, to ensure that the Timor Sea Treaty could be given effect from its
441
signature on 20 May 2002, and as agreed by the Parties in the Exchange of
442
Notes, a portion of revenue due to Timor-Leste under the Timor Sea Treaty was
placed in an escrow account and paid to Timor-Leste once the Timor Sea Treaty
entered into force. This meant that Timor-Leste received the full amount of
438Exchange of Notes constituting an Agreement between the Government of Australia and the
United Nations Transitional Administration in East Timor (UNTAET) concerning the continued
Operation of the Treaty between Australia and the Republic of Indonesia on the Zone of
Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia of
11 December 1989, Dili, 10 February 2000 (entered into force 10 February 2000 with effect from
25 October 1999).
439
United Nations Transitional Administration in East Timor Media Release, ‘East Timor receives
first royalty payment from oil exploitation in Timor Gap’, 24 October 2000 (accessed at
<http://www.un.org/en/peacekeeping/missions/past/etimor/news/N241000.htm…; on 20 July 2014);
‘Table 11. Timor-Leste: Oil/gas Revenues, FY2000/01-FY2004/05’, in V Fichera, A Bhundia and
Y K Kim, ‘Democratic Republic of Timor-Leste: Selected Issues and Statistical Appendix’,
International Monetary Fund Country Report No. 05/250, 31 May 2005, 51 (accessed at
<http://www.imf.org/external/pubs/ft/scr/2005/cr05250.pdf> on 20 July 2014).
440Exchange of Notes Constituting an Agreement between the Government of Australia and the
Government of the Democratic Republic of East Timor concerning Arrangements for Exploration
and Exploitation of Petroleum in an Area of the Timor Sea between Australia and East Timor,
Dili, 20 May 2002, [2002] ATS 11 (entered into force 20 May 2002), [4(a)] and [4(b)].
441Timor Sea Treaty between the Government of East Timor and the Government of Australia,
Dili, 20 May 2002, 2258 UNTS 3 (entered into force 2 April 2003), Article 25(b).
442Exchange of Notes Constituting an Agreement between the Government of Australia and the
Government of the Democratic Republic of East Timor concerning Arrangements for Exploration
and Exploitation of Petroleum in an Area of the Timor Sea between Australia and East Timor,
Dili, 20 May 2002, [2002] ATS 11 (entered into force 20 May 2002 ), [4(c)] and [4(d)].
156Arrangements put in place between the Parties 438 meant that revenue had been
flowing to Timor-Leste since October 2000. 439 This included royalties and tax
revenue, as Timor-Leste was permitted to apply its taxation laws to 90% of
petroleum produced in the JPDA from 20 May 2002, although the Timor Sea
Treaty was yet to enter into force. 440
19. Further, to ensure that the Timor Sea Treaty could be given effect from its
441
signature on 20 May 2002, and as agreed by the Parties in the Exchange of
442
Notes, a portion of revenue due to Timor-Leste under the Timor Sea Treaty was
placed in an escrow account and paid to Timor-Leste once the Timor Sea Treaty
entered into force. This meant that Timor-Leste received the full amount of
438Exchange of Notes constituting an Agreement between the Government of Australia and the
United Nations Transitional Administration in East Timor (UNTAET) concerning the continued
Operation of the Treaty between Australia and the Republic of Indonesia on the Zone of
Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia of
11 December 1989, Dili, 10 February 2000 (entered into force 10 February 2000 with effect from
25 October 1999).
439
United Nations Transitional Administration in East Timor Media Release, ‘East Timor receives
first royalty payment from oil exploitation in Timor Gap’, 24 October 2000 (accessed at
<http://www.un.org/en/peacekeeping/missions/past/etimor/news/N241000.htm…; on 20 July 2014);
‘Table 11. Timor-Leste: Oil/gas Revenues, FY2000/01-FY2004/05’, in V Fichera, A Bhundia and
Y K Kim, ‘Democratic Republic of Timor-Leste: Selected Issues and Statistical Appendix’,
International Monetary Fund Country Report No. 05/250, 31 May 2005, 51 (accessed at
<http://www.imf.org/external/pubs/ft/scr/2005/cr05250.pdf> on 20 July 2014).
440Exchange of Notes Constituting an Agreement between the Government of Australia and the
Government of the Democratic Republic of East Timor concerning Arrangements for Exploration
and Exploitation of Petroleum in an Area of the Timor Sea between Australia and East Timor,
Dili, 20 May 2002, [2002] ATS 11 (entered into force 20 May 2002), [4(a)] and [4(b)].
441Timor Sea Treaty between the Government of East Timor and the Government of Australia,
Dili, 20 May 2002, 2258 UNTS 3 (entered into force 2 April 2003), Article 25(b).
442Exchange of Notes Constituting an Agreement between the Government of Australia and the
Government of the Democratic Republic of East Timor concerning Arrangements for Exploration
and Exploitation of Petroleum in an Area of the Timor Sea between Australia and East Timor,
Dili, 20 May 2002, [2002] ATS 11 (entered into force 20 May 2002 ), [4(c)] and [4(d)]. a treaty regime which accommodated almost all of the objectives that
Timor-Leste communicated to Australia.
(4) Fourth, the treaty regime enables the cooperative exercise of sovereign
rights sooner rather than later, so that th e resources of the Timor Sea
can be developed for the benefit of both States, in a way which is
perfectly consistent with the procedures specified in UNCLOS for
such situations. The exercise of sovereign rights has not been
‘frustrated’.
C. T HE NTERNATIONAL U NITISATION A GREEMENT
22. The IUA establishes the framework for the integrated development and
exploitation of the Greater Sunrise gas fields as a single entity.445 These fields are
located partly in the JPDA and partly in an area of seabed subject to Australi an
jurisdiction. Consistent with the apportionment ratio agreed under Article 9 and
Annex E of the Timor Sea Treaty, the IUA provides that 79.9% of petroleum
production in these fields shall be attributed to Australia.446 In many respects, the
IUA is a product of the Timor Sea Treaty, as explained below.
23. Article 9 of the Timor Sea Treaty creates a specific obligation for
Australia and Timor-Leste to ‘work expeditiously and in good faith’ to reach a
further agreement on the development of petroleum reservoir s extending beyond
44Agreement between the Government of Australia and the Government of the Democratic
Republic of Timor-Leste relating to the Unitisation of the Sunrise and Troubadour Fields, Dili,
6 March 2003, 2483 UNTS 317 (entered into force 23 February 2007); Map 3: Unitisation and
Apportionment for the Greater Sunrise gas fields under the Agreement between the Government of
Australia and the Government of the Democratic Republic of Timor-Leste relating to the
Unitisation of the Sunrise and Troubadour Fields (2007) [Annex 97].
446
Agreement between the Government of Australia and the Government of the Democratic
Republic of Timor-Leste relating to the Unitisation of the Sunrise and Troubadour Fields, Dili,
6 March 2003, 2483 UNTS 317 (entered into force 23 February 2007), Article 7; Map 3:
Unitisation and Apportionment for the Greater Sunrise gas fields under the Agreement between the
Government of Australia and the Government of the Democratic Republic of Timor-Leste relating
to the Unitisation of the Sunrise and Troubadour Fields (2007) [Annex 97].
158 a treaty regime which accommodated almost all of the objectives that
Timor-Leste communicated to Australia.
(4) Fourth, the treaty regime enables the cooperative exercise of sovereign
rights sooner rather than later, so that th e resources of the Timor Sea
can be developed for the benefit of both States, in a way which is
perfectly consistent with the procedures specified in UNCLOS for
such situations. The exercise of sovereign rights has not been
‘frustrated’.
C. T HE INTERNATIONAL U NITISATION A GREEMENT
22. The IUA establishes the framework for the integrated development and
exploitation of the Greater Sunrise gas fields as a single entity. 445 These fields are
located partly in the JPDA and partly in an area of seabed subject to Australi an
jurisdiction. Consistent with the apportionment ratio agreed under Article 9 and
Annex E of the Timor Sea Treaty, the IUA provides that 79.9% of petroleum
production in these fields shall be attributed to Australia. 446 In many respects, the
IUA is a product of the Timor Sea Treaty, as explained below.
23. Article 9 of the Timor Sea Treaty creates a specific obligation for
Australia and Timor-Leste to ‘work expeditiously and in good faith’ to reach a
further agreement on the development of petroleum reservoir s extending beyond
445Agreement between the Government of Australia and the Government of the Democratic
Republic of Timor-Leste relating to the Unitisation of the Sunrise and Troubadour Fields, Dili,
6 March 2003, 2483 UNTS 317 (entered into force 23 February 2007); Map 3: Unitisation and
Apportionment for the Greater Sunrise gas fields under the Agreement between the Government of
Australia and the Government of the Democratic Republic of Timor-Leste relating to the
Unitisation of the Sunrise and Troubadour Fields (2007) [Annex 97].
446
Agreement between the Government of Australia and the Government of the Democratic
Republic of Timor-Leste relating to the Unitisation of the Sunrise and Troubadour Fields, Dili,
6 March 2003, 2483 UNTS 317 (entered into force 23 February 2007), Article 7; Map 3:
Unitisation and Apportionment for the Greater Sunrise gas fields under the Agreement between the
Government of Australia and the Government of the Democratic Republic of Timor-Leste relating
to the Unitisation of the Sunrise and Troubadour Fields (2007) [Annex 97]. 25. Australia and Timor-Leste commenced negotiations of the IUA in
July 2002. Negotiations concluded with the adoption and signature of the IUA on
6 March 2003.
26. Consistent with the obligation to ‘expeditiously and in good faith’ reach
agreement on the unitisation of the Greater Sunrise gas fields, Australia took steps
to ratify the IUA shortly after signature. As a first step, on 14 May 2003 the IUA
was tabled in the Australian Parliament together with a National Interest Analysis,
specifying the reasons for Australia to become a party to the IUA and the
451
requirements for its domestic implementation.
27. In contrast, Timor-Leste delayed its ratification as leverage to pressure
Australia to negotiate a further, even more favourable deal. Timor-Leste ratified
the IUA in February 2007, at the same time as it ratified CMATS and almost four
years after signing the IUA.
D. T HE TREATY ON C ERTAIN M ARITIME A RRANGEMENTS IN THE T IMOR S EA
28. In 2003, faced with Timor-Leste’s failure to ratify the IUA and a
consequent impasse over the cooperative development of the Greater Sunrise gas
fields, Australia agreed to enter into further negoti ations with Timor-Leste, which
ultimately led to the adoption of CMATS. In light of the difficulties and delays
the Parties had experienced in resolving the development of the Greater Sunrise
gas fields (and Timor-Leste’s desire for additional revenue), a s set out in its
452
preamble, CMATS was intended to establish a long -term basis for petroleum
activities in the area of seabed between Australia and Timor-Leste, which would
451Australian Government, Department of Foreign Affairs and Trade, National Interest Analysis
No. 6 of 2003, tabled on 14 May 2003 (accessed at <http://www.austlii.edu.au/au/other/
dfat/nia/2003/6.html> on 20 July 2014).
452Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime
Arrangements in the Timor Sea, Sydney, 12 January 2006, 2483 UNTS 359 (entered into force
23 February 2007), Preamble.
16025. Australia and Timor-Leste commenced negotiations of the IUA in
July 2002. Negotiations concluded with the adoption and signature of the IUA on
6 March 2003.
26. Consistent with the obligation to ‘expeditiously and in good faith’ reach
agreement on the unitisation of the Greater Sunrise gas fields, Australia took steps
to ratify the IUA shortly after signature. As a first step, on 14 May 2003 the IUA
was tabled in the Australian Parliament together with a National Interest Analysis,
specifying the reasons for Australia to become a party to the IUA and the
451
requirements for its domestic implementation.
27. In contrast, Timor-Leste delayed its ratification as leverage to pressure
Australia to negotiate a further, even more favourable deal. Timor-Leste ratified
the IUA in February 2007, at the same time as it ratified CMATS and almost four
years after signing the IUA.
D. T HE TREATY ON CERTAIN M ARITIME A RRANGEMENTS IN THE TIMOR S EA
28. In 2003, faced with Timor-Leste’s failure to ratify the IUA and a
consequent impasse over the cooperative development of the Greater Sunrise gas
fields, Australia agreed to enter into further negoti ations with Timor-Leste, which
ultimately led to the adoption of CMATS. In light of the difficulties and delays
the Parties had experienced in resolving the development of the Greater Sunrise
gas fields (and Timor-Leste’s desire for additional revenue), a s set out in its
452
preamble, CMATS was intended to establish a long -term basis for petroleum
activities in the area of seabed between Australia and Timor-Leste, which would
451Australian Government, Department of Foreign Affairs and Trade, National Interest Analysis
No. 6 of 2003, tabled on 14 May 2003 (accessed at <http://www.austlii.edu.au/au/other/
dfat/nia/2003/6.html> on 20 July 2014).
452Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime
Arrangements in the Timor Sea, Sydney, 12 January 2006, 2483 UNTS 359 (entered into force
23 February 2007), Preamble. permanent maritime boundary negotiations. Indeed, during the early stage of
these negotiations, Australia s ought to negotiate permanent maritime boundaries,
but this was rejected by Timor-Leste. Throughout the negotiations Timor-Leste
repeated these objectives to Australia diplomatically, during negotiation rounds
and publicly. It is evident that CMATS incorporates almost all of Timor-Leste’s
objectives for those negotiations. It is surprising that despite the fact that
Timor-Leste consistently pursued the key elements of CMATS, it now claims i t
never wanted the treaty and that it was somehow forced upon Timor-Leste.
31. A particular focus of Timor-Leste’s submissions is the potential for some
of the petroleum resources of the Timor Sea, particularly the Greater Sunrise gas
fields, to be exhausted while the treaty regime is in force. In support of these
submissions, Timor-Leste has annexed to its Memorial a report by Gaffney, Cline
and Associates which relies on a large number of contesta ble assumptions and
which Australia has challenged in the Arbitration. These submissions should not
be accepted as fact. Australia will show before the Arbitral Tribunal that:
(1) the extension of the Timor Sea Treaty was one of Timor-Leste’s
objectives, which it pursued throughout the negotiation of CMATS,
and which was agreed to by Australia
(2) Timor-Leste and its expert advisers were aware of the estimated
petroleum resources of the Greater Sunrise gas fields and actively
engaged in the negotiation of the mor atorium with the intention of
ensuring CMATS applied for a sufficient period of time, to allow for
the full exploitation and exhaustion of the Greater Sunrise petroleum
resources
(3) Timor-Leste’s assertion that the fields will have been exhausted by
2056 was well known by both P arties at the time of the negotiations
162permanent maritime boundary negotiations. Indeed, during the early stage of
these negotiations, Australia s ought to negotiate permanent maritime boundaries,
but this was rejected by Timor-Leste. Throughout the negotiations Timor-Leste
repeated these objectives to Australia diplomatically, during negotiation rounds
and publicly. It is evident that CMATS incorporates almost all of Timor-Leste’s
objectives for those negotiations. It is surprising that despite the fact that
Timor-Leste consistently pursued the key elements of CMATS, it now claims i t
never wanted the treaty and that it was somehow forced upon Timor-Leste.
31. A particular focus of Timor-Leste’s submissions is the potential for some
of the petroleum resources of the Timor Sea, particularly the Greater Sunrise gas
fields, to be exhausted while the treaty regime is in force. In support of these
submissions, Timor-Leste has annexed to its Memorial a report by Gaffney, Cline
and Associates which relies on a large number of contesta ble assumptions and
which Australia has challenged in the Arbitration. These submissions should not
be accepted as fact. Australia will show before the Arbitral Tribunal that:
(1) the extension of the Timor Sea Treaty was one of Timor-Leste’s
objectives, which it pursued throughout the negotiation of CMATS,
and which was agreed to by Australia
(2) Timor-Leste and its expert advisers were aware of the estimated
petroleum resources of the Greater Sunrise gas fields and actively
engaged in the negotiation of the mor atorium with the intention of
ensuring CMATS applied for a sufficient period of time, to allow for
the full exploitation and exhaustion of the Greater Sunrise petroleum
resources
(3) Timor-Leste’s assertion that the fields will have been exhausted by
2056 was well known by both P arties at the time of the negotiations Index of Annexes
Volume I: Annexes 1 – 28
Annex Page
No.
UN Documents
1. The United Nations Conference on International Organization,
Report of Rapporteur of Sub-committee I/1/A to Committee I/1:
Chapter II, Doc. 739 I/1/A/19(a), 1 June 1945................173...........
2. The United Nations Conference on International Organization,
Verbatim minutes of Second Meeting of Commission I,
Doc. 1123 I/8, 20 June 1945 .................................189......................
3. The United Nations Conference on International Organization,
Report of Rapporteur of Commission I to Plenary Session,
Doc. 1179, 24 June 1945 …………………….………………….. 231
Judicial Decisions
4. Regina v. Shayler [2002] 2 WLR 754 [excerpt] ..……………...... 239
5. Attorney-General v. Guardian Newspapers Ltd and others
(No. 2) [1988] 2 WLR 805 [excerpt] ……………………………. 243
6. United States v. Marchetti, 466 F 2d 1309 (1972).…………........251
7. Mann v. Carnell (1999) 201 CLR 1 [excerpt] …………………... 263
nd
8. U.S. v. Bilzerian, 926 F.2d 1285 (2 Cir. 1991) [excerpt] ……..267
9. Esso Australia Resources Ltd v. Commission of Taxation (1999)
201 CLR 49 [excerpt] ..………………………………………….. 269
10. Lac Lanoux Arbitration (France v. Spain) Award of
16 November 1957, XII RIAA 281 [excerpt] ………………….. 271
11. Juan Ysmael & Co. Inc. v. Government of Indonesia
[1955] AC 72 ……………………………………...…………….. 273
12. Wentworth v. De Montfort (1988) 15 NSWLR 348 …………….. 281
13. Breen v. Williams (1996) 186 CLR 71 [excerpt] ……………….. 297
165 14. Leicestershire County Council v. Michael Faraday & Partners
Ltd [1941] 2 KB 205 [excerpt] ………………………………….. 301
15. Re Thomson [1855] 20 Beav 545 ………..……………………… 305
16. A v. Hayden (1984) 156 CLR 532 [excerpt] ………..…………... 307
17. North v. Marra Developments Ltd (1981) 148 CLR 42 [excerpt]321
18. Shearson Lehman Brothers Inc. v. Maclaine, Watson & Co. Ltd.,
International Tin Council Intervening (No. 2) [1988] 1 WLR 337
19. Westminster City Council v. Government of the Islamic Republic
of Iran [1986] 1 WLR 979 ……………………..……………….. 355
20. Controller and Auditor-General v. Sir Ronald Davison [1996] 2
NZLR 278 [excerpt] …………………………………………….. 361
21. Precision Data Holdings Ltd v. Wills (1991) 173 CLR 167
[excerpt] …………………………………………………………. 373
22. Re Ranger Uranium Mines Pty Ltd; Ex parte Federated
Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656
[excerpt] ………………………………………………………..... 381
23. Attorney-General (Commonwealth) v. Alinta Ltd (2008) 233
CLR 542 [excerpt]……………………………………………….. 385
24. R v. Trade Practices Tribunal; Ex parte Tasmanian Breweries
Pty Ltd (1970) 123 CLR 361 [excerpt] …………………………. 403
25. Grollo v. Palmer (1995) 184 CLR 348 [excerpt] ……………….. 413
26. Love v. Attorney-General (NSW) (1990) 169 CLR 307 [excerpt]419
27. Rose v. The King [1947] 88 CCC 114 [excerpt] ……………….... 425
28. Fayed v. Al-Tajir [1988] 1 QB 712 ...…………………………… 427
16614. Leicestershire County Council v. Michael Faraday & Partners
Ltd [1941] 2 KB 205 [excerpt] ………………………………….. 301
15. Re Thomson [1855] 20 Beav 545 ………..……………………… 305
16. A v. Hayden (1984) 156 CLR 532 [excerpt] ………..…………... 307
17. North v. Marra Developments Ltd (1981) 148 CLR 42 [excerpt].321
18. Shearson Lehman Brothers Inc. v. Maclaine, Watson & Co. Ltd.,
International Tin Council Intervening (No. 2) [1988] 1 WLR 1337
19. Westminster City Council v. Government of the Islamic Republic
of Iran [1986] 1 WLR 979 ……………………..……………….. 355
20. Controller and Auditor-General v. Sir Ronald Davison [1996] 2
NZLR 278 [excerpt] …………………………………………….. 361
21. Precision Data Holdings Ltd v. Wills (1991) 173 CLR 167
[excerpt] …………………………………………………………. 373
22. Re Ranger Uranium Mines Pty Ltd; Ex parte Federated
Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656
[excerpt] ………………………………………………………..... 381
23. Attorney-General (Commonwealth) v. Alinta Ltd (2008) 233
CLR 542 [excerpt]……………………………………………….. 385
24. R v. Trade Practices Tribunal; Ex parte Tasmanian Breweries
Pty Ltd (1970) 123 CLR 361 [excerpt] …………………………. 403
25. Grollo v. Palmer (1995) 184 CLR 348 [excerpt] ……………….. 413
26. Love v. Attorney-General (NSW) (1990) 169 CLR 307 [excerpt].419
27. Rose v. The King [1947] 88 CCC 114 [excerpt] ……………….... 425
28. Fayed v. Al-Tajir [1988] 1 QB 712 ...…………………………… 427 40. Crimes Act 1914 (Cth) [excerpt] ..……………………………..... 93
41. National Security Information (Criminal and Civil Proceedings)
Act 2004 (Cth) [excerpt] ..……………………………………….. 95
42. Legal Profession (Solicitors) Rules 2007 (ACT) [excerpt] ……105
43. Legal Profession Act 2006 (ACT) [excerpt] ...………………….. 127
44. Evidence Act 1995 (Cth) [excerpt] ..…………………………….. 157
45. Foreign Passports (Law Enforcement and Security) Act 2005
(Cth) [excerpt] …………………………………………………... 163
46. Foreign States Immunities Act 1985 (Cth) [excerpt] ……………. 173
Timor-Leste legislation
47. Decree Law No. 3/2009 (National Intelligence Service)
(Timor-Leste) …………………………………………………… 201
48. Decree Law No. 19/2009 (Penal Code of the Democratic
Republic of Timor-Leste) (Timor-Leste) ………………………... 215
Other legislation
49. Table: Extracts from National Legislation Establishing
Intelligence Organisations .……………………………..………. 225
50. Table: National Offences for the Unauthorised Disclosure of
Classified Information ………………………………………….. 247
51. Table: Summary of National Laws on Legal Professional
Privilege/Confidentiality: Scope and Exceptions .…………......295
Correspondence and Undertakings
52. Senator the Hon. George Brandis QC, Attorney-General of
Australia, ‘Ministerial Statement: Execution of ASIO Search
Warrants’, 4 December 2013 …………………………………... 301
53. Letter from Senator the Hon. George Brandis QC, Attorney-
General of Australia, to Mr David Irvine AO, Director-General
of Security, 23 December 2013 ……………………………….... 303
16840. Crimes Act 1914 (Cth) [excerpt] ..……………………………..... 93
41. National Security Information (Criminal and Civil Proceedings)
Act 2004 (Cth) [excerpt] ..……………………………………….. 95
42. Legal Profession (Solicitors) Rules 2007 (ACT) [excerpt] …….105
43. Legal Profession Act 2006 (ACT) [excerpt] ...………………….. 127
44. Evidence Act 1995 (Cth) [excerpt] ..…………………………….. 157
45. Foreign Passports (Law Enforcement and Security) Act 2005
(Cth) [excerpt] …………………………………………………... 163
46. Foreign States Immunities Act 1985 (Cth) [excerpt] ……………. 173
Timor-Leste legislation
47. Decree Law No. 3/2009 (National Intelligence Service)
(Timor-Leste) …………………………………………………… 201
48. Decree Law No. 19/2009 (Penal Code of the Democratic
Republic of Timor-Leste) (Timor-Leste) ………………………... 215
Other legislation
49. Table: Extracts from National Legislation Establishing
Intelligence Organisations .……………………………..………. 225
50. Table: National Offences for the Unauthorised Disclosure of
Classified Information ………………………………………….. 247
51. Table: Summary of National Laws on Legal Professional
Privilege/Confidentiality: Scope and Exceptions .………….......295
Correspondence and Undertakings
52. Senator the Hon. George Brandis QC, Attorney-General of
Australia, ‘Ministerial Statement: Execution of ASIO Search
Warrants’, 4 December 2013 …………………………………... 301
53. Letter from Senator the Hon. George Brandis QC, Attorney-
General of Australia, to Mr David Irvine AO, Director-General
of Security, 23 December 2013 ……………………………….... 303 66. ‘Gagged man in diplomatic trunk’, The Times, 18 November
1964 …………………………………………….……………….. 341
67. ‘Italy charges U.A.R Embassy Men’, The Times, 23 November
1964 ……………………………………………….…………….. 343
68. ‘Trunk man remanded in Israel’, The Times, 27 November 1964345
69. D Welch, ‘Australian’s passport seized in Jordan’, The Sydney
Morning Herald, 14 November 2011 ….………….…………….. 347
70. J Preston, ‘Guatemala protests arrest of 3 in Florida over
passports’, The New York Times, 19 January 2010 ..…….……… 349
71. ‘Pak may protest seizure of Shoaib’s passport’, The Indian
Express, 5 April 2010 …………..………………….……………. 351
Other
72. Extract from Timor-Leste E-Procurement Portal showing list of
contracts awarded to Bernard Collaery for ‘Consultancy
Services’ since 2010 …………………………………….……..... 353
73. Charge Sheet, Manning, Bradley, E. ……………………………. 355
Volume III: Annexes 74 – 98
Annex Page
No.
Confidential Annexes
74. Senator the Hon. George Brandis QC, Attorney-General of
Australia, ‘Written Undertaking’, Arbitration under the Timor
Sea Treaty, 19 December 2013 …………………………………. 1
75. Letter from Mr Ian Carnell, Inspector-General of Intelligence
and Security of Australia, to ‘K’, 6 March 2008 [redacted] ..3…
76. Letter from ‘K’ to Mr Ian Carnell, Inspector-General of
Intelligence and Security of Australia, 12 May 2008 [redacted5...
77. Armed Services and Government Employees Secrecy
Declaration signed by ‘K’, 27 May 1987 [redacted] ...………….. 7
17066. ‘Gagged man in diplomatic trunk’, The Times, 18 November
1964 …………………………………………….……………….. 341
67. ‘Italy charges U.A.R Embassy Men’, The Times, 23 November
1964 ……………………………………………….…………….. 343
68. ‘Trunk man remanded in Israel’, The Times, 27 November 1964.345
69. D Welch, ‘Australian’s passport seized in Jordan’, The Sydney
Morning Herald, 14 November 2011 ….………….…………….. 347
70. J Preston, ‘Guatemala protests arrest of 3 in Florida over
passports’, The New York Times, 19 January 2010 ..…….……… 349
71. ‘Pak may protest seizure of Shoaib’s passport’, The Indian
Express, 5 April 2010 …………..………………….……………. 351
Other
72. Extract from Timor-Leste E-Procurement Portal showing list of
contracts awarded to Bernard Collaery for ‘Consultancy
Services’ since 2010 …………………………………….……..... 353
73. Charge Sheet, Manning, Bradley, E. ……………………………. 355
Volume III: Annexes 74 – 98
Annex Page
No.
Confidential Annexes
74. Senator the Hon. George Brandis QC, Attorney-General of
Australia, ‘Written Undertaking’, Arbitration under the Timor
Sea Treaty, 19 December 2013 …………………………………. 1
75. Letter from Mr Ian Carnell, Inspector-General of Intelligence
and Security of Australia, to ‘K’, 6 March 2008 [redacted] ..…3
76. Letter from ‘K’ to Mr Ian Carnell, Inspector-General of
Intelligence and Security of Australia, 12 May 2008 [redacted]5..
77. Armed Services and Government Employees Secrecy
Declaration signed by ‘K’, 27 May 1987 [redacted] ...………….. 7 90. Merrill Corporation, ‘Transcript of Meeting between
Timor-Leste and Australia at Bangkok’, Arbitration under the
Timor Sea Treaty, 18 February 2013 …….......................139..........
91. Timor-Leste, ‘Response by Timor-Leste to the Application of
Australia for an Order Disallowing the Giving of Potential
Evidence’, Arbitration under the Timor Sea Treaty, 28 February
2014 ……………………………………………▯………….…….. 179
92. Timor-Leste, ‘Notice of Arbitration’, Arbitration under the
Timor Sea Treaty, 23 April 2013 ..………………………….…… 205
93. Australia, ‘Application for an Order Disallowing the Giving of
Potential Evidence’, Arbitration under the Timor Sea Treaty,
31 January 2014 ………………………………………….……… 209
94. Map 1a (line): Consolidated Maritime Arrangements between
Australia, Indonesia and Timor-Leste ………….……................233
95. Map 1b (image): Consolidated Maritime Arrangements between
Australia, Indonesia and Timor-Leste …………………………... 235
96. Map 2: Joint Petroleum Development Area (JPDA) under the
Timor Sea Treaty (2002)……………………………..………….. 237
97. Map 3: Unitisation and Apportionment for the Greater Sunrise
gas fields under the Agreement between the Government of
Australia and the Government of the Democratic Republic of
Timor-Leste relating to the Unitisation of the Sunrise and
Troubadour Fields (2007)………………………………………. 239
98. Map 4: Upstream revenue sharing and water column jurisdiction
under the Treaty between Australia and the Democratic Republic
of Timor-Leste on Certain Maritime Arrangements in the Timor
Sea (2007) ………………………………………………………. 241
172Annex 1: The United Nations Conference on International Organization, Report
of Rapporteur of Sub-committee I/1/A to Committee I/1: Chapter II,
Doc. 739 I/1/A/19(a), 1 June 1945.
173Annex 1
174Annex 1
175Annex 1
176Annex 1
177Annex 1
178Annex 1
179Annex 1
180Annex 1
181Annex 1
182Annex 1
183Annex 1
184Annex 1
185Annex 1
186Annex 1
187Annex 1
188Annex 2: The United Nations Conference on International Organization, Verbatim
minutes of Second Meeting of Commission I, Doc. 1123 I/8, 20 June 1945.
189Annex 2
190Annex 2
191Annex 2
192Annex 2
193Annex 2
194Annex 2
195Annex 2
196Annex 2
197Annex 2
198Annex 2
199Annex 2
200Annex 2
201Annex 2
202Annex 2
203Annex 2
204Annex 2
205Annex 2
206Annex 2
207Annex 2
208Annex 2
209Annex 2
210Annex 2
211Annex 2
212Annex 2
213Annex 2
214Annex 2
215Annex 2
216Annex 2
217Annex 2
218Annex 2
219Annex 2
220Annex 2
221Annex 2
222Annex 2
223Annex 2
224Annex 2
225Annex 2
226Annex 2
227Annex 2
228Annex 2
229Annex 2
230Annex 3: The United Nations Conference on International Organization,
Report of the Rapporteur of Commission I to Plenary Session, Doc. 1179,
24 June 1945.
231Annex 3
232Annex 3
233Annex 3
234Annex 3
235Annex 3
236Annex 3
237Annex 3
238Annex 4: Regina v. Shayler [2002] 2 WLR 754.
239Annex 4
240Annex 4
241Annex 4
242Annex 5: Attorney-General v. Guardian Newspapers Ltd and others (No. 2) [1988]
2 WLR 805.
243Annex 5
244Annex 5
245Annex 5
246Annex 5
247Annex 5
248Annex 5
249Annex 5
250Annex 6: United States v. Marchetti, 466 F 2d 1309 (1972).
251Annex 6
252Annex 6
253Annex 6
254Annex 6
255Annex 6
256Annex 6
257Annex 6
258Annex 6
259Annex 6
260Annex 6
261262Annex 7: Mann v. Carnell (1999) 201 CLR 1.
263Annex 7
264Annex 7
265Annex 7
266 nd
Annex 8: U.S. v. Bilzerian, 926 F.2d 1285 (2 Cir. 1991).
267Annex 8
268Annex 9: Esso Australia Resources Ltd v. Commission of Taxation (1999)
201 CLR 49.
269Annex 9
270Annex 10: Lac Lanoux Arbitration (France v. Spain) Award of 16 November 1957,
XII RIAA281.
271Annex 10
272Annex 11: Juan Ysmael & Co. Inc. v. Government of Indonesia [1955] AC 72.
273Annex 11
274Annex 11
275Annex 11
276Annex 11
277Annex 11
278Annex 11
279280Annex 12: Wentworth v. De Montfort (1988) 15 NSWLR 348.
SUPREME COURT [(1988) 15
348
WENTWORTH V DE MONTFORT AND OTHERS A
Court of Appeal: Hope, Samuels and Mahoney JJA
17 November, 16 December 1988
Legal Practitioners — Solicitor and client — Ownership of documents in
possession of solicitor.
B
Held: (1) Where a solicitor is acting only as an agent for a client who is his
principal in the doing of some act, the ordinary rules of agency apply to him and a
document brought into existence or received by him when so acting belongs to the
client. (353G)
Chantrey Martin (A Firm) v Martin [1953] 2 QB 286, followed.
(2) Where a solicitor is acting for a client other than as agent for the client,
property in documents brought into existence or received by him when not so acting
depend on principles referable to the relationship of a professional person and his
client (353G), as to which relevant considerations include whether or not the client
was charged for the creation of the document and whether the solicitor created the
document for his client's benefit and protection, or did so for his own benefit and
protection. (355G)
(3) A solicitor's trust account records of his dealings with a client's money is the
property of the solicitor but the client is entitled to inspect them and to have
informationabout themand to be provided with copies if asked for. (356D-G) D
Re Londerry's Settlement; Peat v Walsh [1964] Ch 594, referred to.
(4) A solicitor's cheque requisition form is an internal record made for his own
purposes and benefits and cannot be said to be a document made by him on behalf
of his client.Therefore, it is the property of the solicitor. (357A)
(5) Financial records, whether kept pursuant to statutory duty or otherwise, and
whether computerised or otherwise, which a solicitor keeps in relation to
transactions concerning the moneys of a client held by him in his trust account and
the disbursement of these moneys, are the property of the solicitor and not the
client. However, the client is entitled to information concerning his financial affairs
as appearon therecords and, where appropriate, to copies of them. (358A-B)
(6) Notes made by a solicitor of telephone attendances on other persons, records of
personal attendances on persons other than the client or at court and correspon-
dence with persons other than the client may be the property of the solicitor or the
client depending on the nature and content and whether they were made for the
primarybenefitor purposes of the solicitor or the client. (359F-360F) F
(7) The internal records and memoranda of a solicitor as to work done or work to
be done are documents which are created by the solicitor for his own benefit and not
for thebenefitof his clientand are,therefore, the property of the solicitor. (359G)
(8) Generally, documents involving counsel are documents created or received for
the benefit of the client, even though they may also be for the benefit of the
solicitor. The client is entitled to the original or a copy of them. Counsel's brief
belongs to the client. (360G)
(9) Generally, any correspondence between a solicitor and officers of the court,
and any notes of conversations by someone on the part of the solicitor and an officer
of the court belongs to the client, although the solicitor would be able to keep copies
of them. (361B)
(10) Requisitions made for internal photocopying of documents by an employee of
thesolicitorbelong to the solicitor. (361C)
281Annex 12
NSWLR] WENTWORTH v DE MONTFORT (Hope JA) 349
A (11) Internal attempted financial reconciliation documents prepared by the
solicitorin respectof a client are the property of the solicitor. (361D)
(12) Apart from exceptional cases, such as receipts for money paid for the client to
third parties, a solicitor's financial records concerning a client, all of which relevantly
concern litigation, are the property of the solicitor. However, the client is entitled to
inspectthe records and have information about them. (361E)
(13) A solicitor's trust account bank statements or any other bank account
statement relating to an amount of money held for a client are the property of the
B solicitor but the client is entitled to inspect them and to be given information about
them. (361G)
Discussion of ownership of various other classes of documents held by a solicitor
in his capacityas solicitor or as trustee.
Note:
A Digest — LEGAL PRACTITIONERS [130]
C CASESC ITED
The following cases are cited in the judgments:
Chantrey Martin (A Firm) v Martin [1953] 2 QB 286.
Cowin, Re(1886) 33 Ch D 179.
Ebdy v McGowan (The Times, 17 November 1870).
Ellis & Ellis, Re [1908] WN (Eng) 215.
Gibbon v Pease [1905] 1 KB 810.
Horsfall, Ex parte(1827) 7 B & C 528; 108 ER 820.
D Howard v Gunn (1863) 32 Beav 462; 55 ER 181.
Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205.
London School Board v Northcroft (1889) Hudson's BC, 4th ed, vol 2, 147.
Londonderry's Settlement, Re; Peat v Walsh [1964] Ch 594.
Thomson, Re(1855) 20 Beav 545; 52 ER 714; 24 LJ Ch 599.
Wentworth v Rogers (No 10) (1987) 8 NSWLR 398.
The following additionalcases were cited in argument:
E Browne v Dunn (1893) 6 R 67.
Wheatcroft, Re (1877) 6 Ch D 97.
A PPEAL ANDN OTICE OFM OTION
This was an appeal against a decision of Hodgson J in respect of an order
concerning the ownership of documents in the possession of the appellant's
solicitors, and in which the appellant sought leave to adduce and to rely on
F new evidence and by motion on notice sought declarations in relation to the
ownership of the documents. During the course of the hearing the Court
ordered that the question of ownership of twelve categories of documents
should be determinedseparately.
The claimant in person.
M G Skinner, for the opponent.
G Cur adv vult
16 December 1988
HOPE JA. The proceedings presently before the Court are part of a
long history of litigation which had its origins, so far as civil litigation
is concerned, in a common law action and cross-action between
282 Annex 12
350 SUPREME COURT [(1988) 15
Ms Wentworth and Mr Rogers. In those proceedings a jury returned a A
verdict in favour of Mr Rogers in Ms Wentworth's claim, and against Ms
Wentworth in Mr Rogers' claim, damages being assessed at $571,000. An
appeal was brought by Ms Wentworth in those proceedings being CA 8 of
1986 which has long since been heard and disposed of: see Wentworth v
Rogers (No 10) (1987) 8 NSWLR 398. The appeal was allowed, the
judgment set aside and a new trial ordered. Whilst the appeal was still
pending, Ms Wentworth made an application in that proceeding on 14 May
1986 by notice of motion returnable before this Court, the opponents in theB
application being De Montfort and Others, the partners of the firm of Ms
Wentworth's former solicitors, then known as Sly & Russell. This Court
dealt partially with the relief sought in the notice of motion by ordering the
return of certain documents to Ms Wentworth, but remitted the balance of
the claim sought by Ms Wentworth to be dealt with in the Equity Division.
These proceedings came before Hodgson J, the relief sought by Ms
Wentworth falling into three categories: C
(1) Order for the return of her documents;
(2) Order for the payment to her of money received by the opponents; and
(3) Order for the provision of bills of costs in taxable form in respect of
various matters.
On 13 February 1987, Hodgson J declined to make any order in respect of
the return of Ms Wentworth's documents, ordered that, upon Ms
Wentworth providing certain documents, the opponents should provide her D
with bills of costs in taxable form, and ordered that the opponents should
pay Ms Wentworth $57,000 together with $12,000 interest. An appeal and
cross-appeal followed this decision. After the hearing by this Court, and
while judgment was reserved, Ms Wentworth filed an application for leave
to adduce and to rely upon new evidence in the appeal. This application,
which necessarily delayed the giving of judgment, has been before the Court
on a number of occasions, Ms Wentworth claiming that the opponents failed
to produce before Hodgson J a very large number of documents, many of E
which she claims are her property. The application has unfortunately run a
very checkered course, one of the reasons being the immense amount of
material that is involved and the number of issues which it is submitted it
will be necessary to decide.
In the proceedings before Hodgson J the opponents submitted that they
did not have any documents belonging to Ms Wentworth. They claimed that
the only documents which they still had relating to her litigation fell within
four categories:
(i) Originals and copies of correspondence between them and the
applicant;
(ii) Original notes and telephone and personal attendances on the
applicant;
(iii) Accounting records; and
(iv) Photocopies of documents in the litigation. G
Hodgson J concluded that documents falling within these categories were
the property of the opponents. This decision is one of the matters the subject
of Ms Wentworth's appeal.
On 7 November 1988, Ms Wentworth filed in court a notice of motion in
which she sought declarations:
283Annex 12
NSWLR] WENTWORTH v DE MONTFORT (Hope JA) 351
A “1. That the Court declares that the categories of documents which
are not the property of the claimant, are:
(i) originals and copies of correspondence between Sly and
Russell and K Wentworth;
(ii) original notes and personal telephone attendances by Sly and
Russell on K Wentworth;
(iii) photocopiesof documents made in the litigationat the
expense of Sly and Russell.
B
2. That the Court declares that all other documents, with the
exception of some accounting records, whose ownership is to be
determined,are the property of the claimant.”
Because of the great bulk of the documents involved in this part of the
dispute and the need to try to contain the length of its hearing, the Court
ordered that the question of the ownership of twelve categories of
documents should, so far as possible, be determined by the Court before the
C hearing of the balance of the application to adduce fresh evidence. Those
categorieswere:
“1. Cheque requisitions forms.
2. Computer printouts.
3. Notes of Sly and Russell relating to telephone attendances on persons
other than Miss Wentworth.
4. Internal Sly and Russell records and memoranda as to work done or
D work to be done.
5. Records of personal attendances by Sly and Russell on any person
other than Miss Wentworth or at court.
6. Correspondence by Sly and Russell with any person other than Miss
Wentworth.
7. Any document held by Sly and Russell involving counsel.
8. Communications between Sly and Russell and any officer of the
E court.
9. Photocopy requisitions of any matter in relation to litigation.
10. Internal Sly and Russell attempted financial reconciliation docu-
ments.
11. Any financial records that do not fall within the definition of cash
book, ledger or journal.
12. All trust account bank statements or any other bank account
statementsrelating to an amount of money held for Miss Wentworth.”
F
Ms Wentworth's primary submission is that any documents brought into
existence or received by Sly & Russell in relation to her litigation were
documents created or received by Sly & Russell in their capacity as agents
for their principal Ms Wentworth, and that, applying ordinary agency
principles, any documents so created or received are accordingly hers. As I
understand their case, the opponents do not deny that any document created
or received by them only as agents for Ms Wentworth would belong to her.
G However they deny that any documents falling within the twelve categories
were so created or received and submit that upon a number of principles
applying to solicitors and other professional people, the documents falling
within those categories are theirs.
Although solicitors may in particular circumstances receive or create a
document as an agent for their client, this is commonly not the case. The
284 Annex 12
352 SUPREME COURT [(1988) 15
distinction between principal and agent and professional person and client isA
well established. In Leicestershire County Council v Michael Faraday and
Partners Ltd [1941] 2 KB 205, a company carrying on business as rating
valuers was employed by a county council for five years to give advice and
assistance in connection with the valuation of land within its area and for
related purposes. At the expiration of the engagement the council brought
proceedings for the recovery of all documents, books, maps and plans which
had been prepared by, or had come into the possession of, the valuers in the
B
course of or for the purpose of the performance of their duties.
Macnaghten J at first instance and the Court of Appeal rejected their claim.
MacKinnon LJ said (at 215-216):
“If there is nothing in the contract on which the plaintiffs can rely to
establish that they are right in saying that these pieces of paper are their
property, by what rule of law otherwise can they assert that that is so? I
know of none. Some reference has been made to, and reliance placed
on, one or two cases which were cited by Mr Macaskie, such as Lady C
Beresford v Driver 20 LJ (Ch) 476; 22 LJ (Ch) 407 and Gibbon v Pease
[1905] 1 KB 810, but I think that those cases are radically different
from the present case, as being concerned with the relative rights and
duties of principal and agent. If an agent brings into existence certain
documents while in the employment of his principal, they are the
principal's documents and the principal can claim that the agent should
hand them over, but the present case is emphatically not one of D
principal and agent. It is a case of the relations between a client and a
professional man to whom the client resorts for advice. I think it would
be entirely wrong to extend to such a relation what may be the legal
result of the quite different relation of principal and agent. These pieces
of paper, as it seems to me, cannot be shown to be in any sense the
property of the plaintiffs, any more, as I suggested to Mr Macaskie
during the argument, than his solicitor client or his lay client could
assert that his notes of the argument he addressed to us could be E
claimed to be delivered up by him when the case is over either to the
solicitor or to the lay client. They are documents which he has prepared
for his own assistance in carrying out his expert work, not documents
brought into existence by an agent on behalf of his principal, and,
therefore, they cannot be said to be the property of the principal.”
Goddard and Du Parcq LLJ agreed. In the course of his short reasons
Goddard LJ referred to the decision of A L Smith J in London School Board F
v Northcroft which apparently was reported in (1889) Hudson's BC, 4th ed,
vol 2, at 147. It was a case where it was held that detinue would not lie for
memoranda which were in the possession of quantity surveyors who had
been employed by the London School Board and which the quantity
surveyors had prepared for their own use in measuring up certain buildings.
A L Smith J (at 149), quoted in [1941] 2 KB 217 said:
“Now I should like to know how it can be said that what I call the G
private memoranda, which were made by Messrs Northcroft for the
purpose of framing that which ultimately became the property of the
plaintiffs, namely, the bill of quantities, ever became the property of the
plaintiffs. The paper belonged to Messrs Northcroft, the ink belonged to
Messrs Northcroft, and the brains that put the calculations on paper
285Annex 12
NSWLR] WENTWORTH v DE MONTFORT (Hope JA) 353
A belonged to Messrs Northcroft, and I want to know how that document
which came into existence ever became the property of the plaintiffs. In
my judgment it never did, and therefore the demand which was made
… for the return of this manuscript was illfounded in law.”
This approach was affirmed by the Court of Appeal in Chantrey Martin
(A Firm) v Martin [1953] 2 QB 286. Martin had been an employee of
Chantrey Martin and had been dismissed for alleged breach of contract.
Chantrey Martin sued their former employee to recover salary which had
B
been paid in advance and otherwise and Martin counter-claimed for
wrongful dismissal. In his particulars Martin made certain allegations about
irregularities he claimed to have found in the books of a company client of
Chantrey Martin. He made an application for the production of certain
documents relating to the auditing of the client company's accounts, but for
which Chantrey Martin claimed privilege on the ground that they were the
property of the company client. The judgment of the Court of Appeal was
C given by Jenkins LJ who, having discussed Leicestershire County Council
and London School Board, concluded that apart from correspondence with
the Inland Revenue and the client company's own ledgers the documents
were the property of Chantrey Martin. His Lordship distinguished Ex parte
Horsfall (1827) 7 B & C 528; 108 ER 820, as turning on the nature of the
services rendered by an attorney or solicitor and the system upon which he
is remuneratedfor those services. His Lordship went on to say (at 293):
D “… Even in the case of a solicitor there must, we should have
thought, be instances of memoranda, notes, etc, made by him for his
own information in the course of his business which remain his
property, although brought into existence in connexion with work done
for clients.”
As regards the Inland Revenue documents, which comprised letters
received from the Inland Revenue and copies of letters written to the Inland
Revenue, his Lordship held that in conducting this correspondence the
E
plaintiffs must have been acting as agents for the client company for the
purpose of settling with the Inland Revenue the client company's tax
liability. It was held that these letters were the property of the client
company.
It thus appears that if a solicitor is acting only as agent for a client who is
his principal in the doing of some act, the ordinary rules of agency apply to
him, and documents brought into existence or received by him when so
F acting belong to the client. However in other cases, different principles
apply, those principles being referable to the relationship between a
professional person and his client.
The principles which are to be applied do not form a coherent whole, and
some of them have been formulated in a context which no longer exists.
However it is clear that documents including financial records which a
solicitor holds relating to the affairs (including litigation) of a client do not
G necessarily belong to the client. The passages which I have quoted from
judgments of the English Court of Appeal clearly establish this position.
There are a number of reports of decisions on particular matters which
throw some light on the question. I have already referred to Ex parte
Horsfall where Lord Tenterden held that drafts and copies of certain deeds
in the custody of an attorney were the property of his client on the ground
286 Annex 12
354 SUPREME COURT [(1988) 15
that: “He who pays for the drafts, &c by law has a right to the possession oA
them.” I have also described the way in which Jenkins LJ distinguished this
decision in Chantrey Martin, and referred to his statement about a solicitor's
ownership of documents made by him for his own information in the course
of his business, although brought into existence in connection with work
done for clients.
In Re Thomson (1855) 20 Beav 545; 52 ER 714; 24 LJ Ch 599, Sir John
Romilly MR held that a client is not entitled to copies of letters written bB
the client's solicitor which have been entered in his letter books. The client is
entitled to copies of those copies, but must pay for them. He also appears to
have held (the reports vary) that the solicitor is entitled to retain letters
written to him from the client. The reports agree that his Lordship held that
letters written by the solicitor to third parties, relating exclusively to the
client's business, are held by the solicitor as the agent for the client and the
client is entitled to them, the solicitor being entitled to make and keep
copies. C
In Howard v Gunn (1863) 32 Beav 462; 55 ER 181, Sir John Romilly MR
again held that a letter written by a solicitor for a client to a third party
belonged to the client. Somewhat later, in Gibbon v Pease [1905] 1 KB 810,
an architect had been employed by a building owner to carry out alterations
to some houses. He prepared plans and superintended the execution of the
work and was duly paid. The building owner demanded that the architect
hand over the plans which he refused to do. The Court of Appeal held that D
the building owner was entitled to the plans. Collins MR (at 813) concluded
that the contract made with the architect resulted in the making of plans the
property in which passed to the building owner on payment of the
remuneration provided under the contract and that he found a difficulty in
distinguishing the case from that of a contract to paint a picture or design a
coat of arms as to which no question of ownership could arise. Cozens-
Hardy LJ (at 814) applied Ex parte Horsfall and also relied upon practical E
considerationsaying:
“… What would be his (that is the building owner's) position after
the building was completed? Unless he has the plans, how is he to know
where the drains, the flues, and many other things are? Is he bound to
go to the architect and make a fresh contract with him with respect to
every matter that arises relating to the structure?”
He concluded that a decision of the Court of Exchequer in Ebdy v F
McGowan, reported only in The Times, 17 November 1870, where a
building owner had been held entitled to the plans drawn by the architect,
was correct, and ought to be followed.
Some light is thrown on financial records by the decision in Re Ellis &
Ellis [1908] WN (Eng) 215. There Ellis & Ellis, a firm of solicitors, acted for
a client in the management of his affairs and over a period of two years
received large sums on his behalf. Out of the money so received they paid G
many of the client's debts and also retained the amount of their costs
charges and expenses as his solicitors. They then ceased to act for him. Later
the client became bankrupt and the trustee in bankruptcy sought an account
from Ellis & Ellis of the moneys they had received in the two year period.
Ellis & Ellis delivered the accounts which the trustee did not dispute, but the
287Annex 12
NSWLR] WENTWORTH v DE MONTFORT (Hope JA) 355
A trustee required that the vouchers for the payments should be handed over
to him which Ellis & Ellis declined to do. Neville J said:
“I think the respondents have misconceived their position. They are
not trustees, but agents who have been paid. The vouchers represent
payments made on behalf of the bankrupt with his money and are his
property, and must be handed over to the trustees; ….”
This decision must be regarded as one based on the finding of fact that the
solicitor was acting as an agent, and not as authority for the proposition that
B
the actions of solicitors are always or even usually to be treated as the
actions of agents for their clients.
Cordery on Solicitors, 8th ed, (1988) propounds a number of principles.
The learned author says (at 89) that documents in existence before the
retainer commences and sent to the solicitor by the client or by a third party
during the currency of the retainer present no difficulty and that the
solicitor holds them as agent for the client or third party. He goes on to say
C that documents which only come into existence during the currency of the
retainer and for the purposes of business transacted by the solicitor pursuant
to the retainer fall into four broad categories:
“(i) Documents prepared by the solicitor for the benefit of the client
and which may be said to have been paid for by the client, belong
to the client.
(ii) Documents prepared by the solicitor for his own benefit or
D protection the preparation of which is not regarded as an item
chargeableagainst the client, belong to the solicitor.
(iii) Documents sent by the client to the solicitor during the course of
the retainer, the property in which was intended at the date of
despatch to pass from the client to the solicitor, belong to the
solicitor.
(iv) Documents prepared by a third party during the course of the
E retainer and sent to the solicitor (other than at the solicitor's
expense), belong to the client.”
He also says (at 90) that where the basis of charging a client enables a
conclusion to be reached that the client has paid for all draft and copy
documents and letters and things such as instructions and briefs in
contentious matters, the client is entitled to the documents. On the other
hand copies of letters written to the client, entries of attendances, tape
recordings of conversations and proofs of evidence, inter-office memoranda,
F
entries in diaries, time sheets, computerised records, office journals and
books of account belong to the solicitor.
A number of considerations can be discerned in these decisions and
statements as being relevant in the determination of ownership. These
include whether or not the client was charged for the creation of the
document, and whether the solicitor created the document for his client's
benefit and protection, or did so for his own benefit and protection. It is
G apparent that in many if not most cases a solicitor would have mixed
reasons for creating a document. Thus if on his client's instructions he writes
a letter of demand to a third party, it would be his duty to keep a copy of
the letter, for the client may have to prove the sending of the letter and its
contents, and the copy kept by the solicitor may be essential for this
purpose. On the other hand the solicitor would want a copy for his own
288 Annex 12
356 SUPREME COURT [(1988) 15
protection in order, for example, to be able to prove to his client that he Aad
sent the letter of demand, and also for the purposes of making up a bill of
costs. In such a case, the clients would be entitled to a copy of the letter and
the solicitor would be entitled to charge him for it. On the other hand the
solicitor would be entitled to keep a copy for his own records and absent
some special agreement would not be entitled to charge the client for making
that copy. Again if on his client's instructions the solicitor pays money to a
third party and obtains a receipt, the receipt is obviously of benefit for the
client for it is evidence that the third party has been paid. It is also evidence
for the solicitor that he has carried out his client's instructions and would be
needed by him if any questions as to payments out of his trust account were
raised. Again in this case I should have thought that the client was entitled
to the original receipt, but that the solicitor was entitled to retain a copy.
Before going to the particular categories of documents which have to be
considered, I should refer to documents relating to a trust account. It was
Ms Wentworth's submission that any records held by the solicitors of their C
dealings with her money in their trust account other apparently than
documents falling within the definitions of cash book, ledger or journal,
belong to her. Sly & Russell, in keeping any relevant record, were acting as
trustees, she was the beneficiary, she was accordingly entitled to any such
document. This submission runs counter to principles applicable to a
solicitor who receives and holds money in trust for his clients. A trustee
must keep proper financial records and in a real sense, as well as keeping
D
them for his own benefit, he keeps them for the benefit of the beneficiary, to
whom he must be ready to render accounts when required. However, while
he is trustee, they are his records and he has the legal title to them. The
beneficiary is entitled to inspect them, and to have information about them,
but they are not the beneficiary's property: Re Londonderry's Settlement;
Peat v Walsh [1964] Ch 594. Normally, when a trustee ceases to hold office,
either on appointment of a new trustee or the determination of the trust, he
would be required to hand over all trust property, including documents and E
financial records, to the new trustee, or to the sole beneficiary or all the
beneficiaries if more than one, if required to do so. In Re Cowin (1886) 33
Ch D 179 at 185, North J quoted with approval the following passage in
Lewin on Trusts, 8th ed (1885) at 975: “All documents held by the trustee in
that character must be produced by him to the cestuis que trust, who in
equity are the true owners.” This position would generally apply to a trustee
who is a solicitor, but there are important qualifications in some cases. IfFhe
is solicitor for the client as well as trustee, he is required by law (as I shall
describe later) to maintain and to retain proper financial records. He is
entitled to retain these records, some of which may refer to other clients as
well as the trust, but the beneficiary should be provided with copies if asked
for. Other records which he makes as solicitor and not as trustee are subject
to the same principles as would apply if he were not a trustee.
I shall now deal with the ownership of the various classes of documents.
G
1. Cheque requisition forms:
When Sly & Russell wish to pay an amount of money for a client or in
respect of the client's matters by cheque, a printed form of cheque
requisition is completed. This requisition form includes the date, an
identification of the matter, the member or employee of the firm making the
289Annex 12
NSWLR] WENTWORTH v DE MONTFORT (Hope JA) 357
A requisition, the name of the client, the nature of the relevant business of the
client, the name of the payee, and the purpose of the payment and the
amount. The requisition then goes to the relevant employee of the firm who
makes out the cheque and enters on the cheque requisition form the date
and number of the cheque. In my opinion this form is the property of the
solicitors. It is an internal record made for their own purposes and benefit
and cannot be said to be a document made by them as agent for Ms
Wentworth. The decision in Re Ellis & Ellis does not apply, for that was a
B case where the solicitor was acting only as an agent. I can see no basis on
which Ms Wentworth can claim to be the owner of any such form.
2. Computer printouts:
The financial records of Sly & Russell are computerised and the firm holds
copies of the printouts of the information stored in the computer, and
presumably can make as many copies of them as it wishes. I do not know
the details of the way in which the computer records information but
C examples of printouts produced by Sly & Russell show that they can relate
solely to Ms Wentworth's affairs. It may be that other computer printouts
relate to the affairs of other clients as well as those of Ms Wentworth. I do
not understand how any distinction in principle can be made between these
records and records in documents such as cash books, ledgers and journals.
Whatever may be the position in relation to ordinary trustees, solicitors who
hold money in trust for their clients have two roles and are subject to special
D duties, and they are entitled to and indeed must retain their financial
records.
Until the Legal Profession (Trust Accounts and Controlled Money)
Regulation 1988 came into force, the trust account regulations made under
the Legal Practitioners Act 1898 required solicitors to keep or cause to be
kept at their registered office the following documents:
(a) a receipt book;
(b) a bank deposit book;
E
(c) a cash book, or receipts cash book and payments cash book;
(d) trust ledger;
(e) a trust cheque book;
(f) trust ledger trial balance statements;
(g) a trust journal.
These records were required to beretained for a period of five years after
F the last entry had been made in them. Although it may not be relevant for
present purposes, I would have thought that this last provision did not mean
that trust account records could be disposed of even though trust money was
still held by the solicitor, simply because nothing had happened requiring
any entry to be made during the last five years. The last entry must refer to
the last entry clearing the account.
Those regulations did not make provision in respect of computerised
accounts. The 1988 regulations enlarge to some extent the nature of the
G trust records to be kept, require records to be retained for a period of six
years, and make special provision in relation to computerised accounts.
As it seems to me the records, whether computerised or otherwise, which
a solicitor keeps in relation to transactions concerning the moneys of a client
held in his trust account and the disbursement of those moneys are his
property and not the property of his client. This result can be arrived at
290 Annex 12
358 SUPREME COURT [(1988) 15
whether the principles which relate to trustees and beneficiaries are appliedA
or those relating to solicitor and client are applied. In so far as the records
are those of a continuing trustee, they belong to the trustee, the beneficiary
is entitled to information concerning their contents and where appropriate to
copies of them but the beneficiary does not own them. In so far as the
solicitor has ceased to be a trustee, he is still required by law to maintain and
to retain proper financial records. Looked at as a solicitor's records, no doubt
they are kept in part for the benefit of the client but they are also kept for
the benefit of the solicitor who must know and be able to establish not only B
to the client but to persons exercising the relevant powers under the Legal
Practitioners Act precisely what he has done with moneys in his trust
account. His liability to account to inspectors and others pursuant to the
Legal Practitioners Act is not a liability which has been created solely for the
benefit of the solicitor's client. It is for the client's benefit, but it is also for
the benefit of the public generally, which has a considerable interest in
ensuring the integrity of solicitors and their observance of their professional
and other obligations.
Accordingly, whilst Ms Wentworth is entitled to information concerning
her financial affairs as appearing on the records kept by Sly & Russell,
whether computerised or otherwise, she does not own those records. Having
regard to technological advances and the ease with which copies can now be
made, I should have thought that the solicitor who keeps computerised
accounts should supply his client with a copy of the relevant printout, but at
D
the client's expense. That however is not the issue in the present case; the
issue is simply whether any printout of the computerised records concerning
Ms Wentworth's affairs belongs to the solicitors. In my opinion it does,
unless it is a copy which has been made for and at the expense of Ms
Wentworth.
3. Notes of Sly & Russell relating to telephone attendances on persons
other than Ms Wentworth: E
The notes made by a solicitor of telephone conversations with persons
other than his client, but relating to the client's affairs, may obviously fall
into an almost indefinite number of classes. On the one hand, a solicitor
could have a telephone conversation with a person whom the client alleges
owes him money. The alleged debtor may give the solicitor his version of the
matter, make admissions, deny his obligation or make a counter-claim. As it
seems to me the solicitor's record of conversations of these kinds, although
made in part for his benefit or purposes, are of primary benefit to the client.
If the client determined the solicitor's retainer and went to another solicitor,
it could be critical to that other solicitor to have the record which the
solicitor has made of the conversation. Again a solicitor may interview a
witness and take a statement from him. I would have thought that such a
statement was taken for the benefit of the client as well as by the solicitor
for his own purposes and undoubtedly the client would be charged for the
taking of the statement. If a new solicitor took over a client's business, the
former solicitor having been paid his fees, I would have thought that the
former solicitor would be bound to hand over the statement to the new
solicitor, although he could keep a copy for which he had not charged.
As I have indicated Cordery suggests that both that “entries of
attendance” and “proofs of evidence” are the property of the solicitor. No
291Annex 12
NSWLR] WENTWORTH v DE MONTFORT (Hope JA) 359
A authority is cited for these suggestions, and I would have thought that they
both fell squarely within the first of the four categories described by Cordery
and that they each belonged to the client. The “Guide to the Professional
Conduct of Solicitors” issued by the (English) Council of the Law Society
(1974) states (at 39) that a memorandum of a telephone conversation with a
third party made by a solicitor is the property of the client, and is
accordingly to be handed over on a change of solicitors. On the other hand,
a solicitor may well make a note of a telephone conversation which he has
B
with a person relating to the work he is doing for a client, but the
conversation may be solely for the benefit of the solicitor and not be
chargeable to the client.
Between this class of case and the former there are no doubt cases where
questions of degree are involved, and where predominant purpose may
resolve the issue. Thus one of the examples provided by Sly & Russell falling
within this category was a note of a conversation with senior counsel in
C respect of the payment of his fees. Counsel look primarily to solicitors for
the payment of their fees and solicitors have a professional responsibility for
their payment. Clients of course have an interest, and a very real interest, in
counsel's fees, but I should think that a record of a conversation by a
solicitor with senior counsel concerning the non-payment of his fees would
be a record belonging to the solicitor. On the other hand a record of a
conversation between the solicitorand the director of a legal aid
D organisation discussing a costs position seems to me to be the property of the
client. If the solicitor had written a letter rather than had a telephone
conversation and received a letter in reply, I would have thought that both
belong to the client although the solicitor would be entitled to retain a copy
of each.
It appears from this discussion that it is not possible to give a single
answer to the question whether a document falling within this category is
E the property of Ms Wentworth or of the solicitors unless its nature and the
relevant facts are known. Some guidance however may be obtained from the
particular examples which I have discussed.
4. Internal Sly & Russell records and memoranda as to work done or
work to be done:
These records in my opinion fall within the category of documents which
are created by solicitors for their own benefit and not for the benefit of their
F client, and there is no principle upon which Ms Wentworth could base her
claim to ownership. If there were no special arrangement as to fees, I do not
think that the solicitor would be entitled to charge for making these records.
If there is an arrangement that fees are to be charged upon a time basis
which would include the time for making these records, I do not think that
on that account alone, the records would become the property of the client.
Thus a barrister may make written notes of arguments he proposes to
G submit to a court and if he charges upon a time basis for out of court work,
the client has in a sense been charged for that work. However I do not think
that that makes those notes the property of the client; they would be made
by the barrister entirely for his own professional purposes even though they
are made in the course of carrying out work for the client. The position is
the same in the case of the internal records as in relation to the analogous
292 Annex 12
360 SUPREME COURT [(1988) 15
internal records of a solicitor. Records falling within this category belonA to
Sly & Russell.
5. Records of personal attendances by Sly & Russell on any person other
than Ms Wentworth or at court:
The ownership of the records of personal attendances on persons other
than Ms Wentworth is to be determined on the same principles as those
applying to records of telephone attendances. As in the case of those records,
it is not possible to give a single answer in relation to the records falling
within this category, but the examples I have discussed in relation to
category 3 are equally applicable to records falling within category 5.
Similarly the question of the ownership of records of attendances at court
do not admit of a single general answer. A record of such a proceeding may
be made for the benefit of both client and solicitor; for the client because it is
important for a client to know and to have a record of what has happened in
court, and his solicitor is a person on whom he must be entitled to rely for
information about what has happened. No doubt also such a record would
be valuable for any new solicitor. On the other hand the solicitor would
want a record for his own purposes in order to be able to establish what has
taken place and as a basis for future action on behalf of the client. In these
cases in my opinion the client is entitled to the original record and the
solicitor is entitled to retain a copy. No doubt there may be some records of
court attendances which are made primarily for the benefit or protection ofD
the solicitor. Thus notes made by a solicitor when at court to remind him of
what matters he should attend to seem to me to be a record wholly or
substantially for his benefit or purposes and not for the benefit of the client.
Such a record would in my opinion belong to the solicitor.
6. Correspondence by Sly & Russell with any person other than Ms
Wentworth:
E
These communications are subject to the same principles as those in
category 3, that is, notes of telephone conversations by Sly & Russell with
persons other than Ms Wentworth. No single answer can be given; as
appears from the authoritieso which I earlier referred, this correspondence
is often sent or received by a solicitor as agent for his client. In such a case
the correspondence belongs to the client. No doubt there are cases where it
would be the solicitor who would be entitled to the property.
F
7. Any document held by Sly & Russell involving counsel:
Generally speaking documents involving counsel would be documents
created or received for the benefit of the client, even though they may also
be for the benefit of the solicitor, and the client would be entitled to the
originals or a copy of them. Thus counsel's brief must belong to the client. If
in the middle of litigation the client changed its solicitor, the new solicitor
would be entitled to a copy of the brief and upon its return the original brief
of counsel. Notes of conferences held by solicitors with counsel, either in
counsel's chambers or by telephone, would likewise generally belong to the
client, as would correspondence between counsel and solicitor. As I have
previously indicated in relation to a record of a conversation about non-
payment of counsel's fees, records and notes of some conversations and
293Annex 12
NSWLR] WENTWORTH v DE MONTFORT (Hope JA) 361
A some correspondence may in particular circumstances belong to the solicitor
but this would not generally be the position.
8. Communications between Sly & Russell and any officer of the court:
Any correspondence between Sly & Russell and officers of the court, and
any note of the conversation by someone on the part of Sly & Russell and
an officer of the court, would be subject to the same principles which I have
discussed in relation to other correspondence or records of conversations
B with third parties. Generally they would belong to the client although the
solicitor would be entitled to keep a copy of them. Here again there may be
some particular letters or records which are solely for the solicitor's benefit
in which event the solicitor would be entitled to them.
9. Photocopy requisitions of any matter in relation to litigation:
In my opinion requisitions made for the photocopying of documents, by
an employee of Sly & Russell are the records of Sly & Russell. They relate
C
essentially to its own internal conduct of its business, and no relevant
principle entitles the client to them. Requisitions to copiers outside the firm
are to be dealt with in accordance with the principles applying to
communications with third parties.
10. Internal Sly & Russell attempted financial reconciliation documents:
These documents belong to Sly & Russell and not to Ms Wentworth.
D They are in effect the working papers of Sly & Russell in relation to their
accounting obligations and are either wholly or predominantly for their
benefit.
11. Any financial records that do not fall within the definition of cash
book, ledger or journal:
I have earlier discussed the principles that apply to these records. In my
opinion, apart from exceptional cases such as receipts for money paid for the
E client to third parties, Sly & Russell's financial records concerning Ms
Wentworth's affairs, all of which relevantly concern litigation, are their
property. In so far as Sly & Russell have records concerning money held in
their trust account for Ms Wentworth, the principles I have referred to
earlier apply. Ms Wentworth is entitled to inspect the records and to have
information about them, and to have Sly & Russell render accounts in
respect of the moneys but the records themselves belong to Sly & Russell.
F 12. All trust account bank statements or any other bank account
statement relating to an amount of money held for Ms Wentworth:
Applying the principles which I have described, these bank statements
(which would normally relate to moneys of other clients, as well as Ms
Wentworth) belong to Sly & Russell, but Ms Wentworth is entitled to
inspect them and to be given information about them.
The parties told the Court that the resolution of the issues as to property
G in the documents would go a long way to resolving most of the issues in the
application by Ms Wentworth to adduce fresh evidence. Hopefully this will
prove to be correct. However I do not think that it is possible for the Court
to make any orders in that application at this stage, save to stand the
application over to a date to be fixed by the Registrar, and to reserve the
costs.
294 Annex 12
362 SUPREME COURT [(1988) 15
SAMUELS JA I agree with the reasons of Hope JA and with his A
proposal for the future conduct of the matter.
MAHONEY JA I agree with what has been said by Hope JA and with
what he proposes.
Summons for leave to adduce fresh evidence adjourned to
date to be fixed
Solicitors for the opponent: Sly & Russell.
B
M L BARR,
Barrister.
C
D
E
F
G
295296Annex 13: Breen v. Williams (1996) 186 CLR 71.
297Annex 13
298Annex 13
299300Annex 14: Leicestershire County Council v. Michael Faraday & Partners Ltd [1941]
2 KB 205.
301Annex 14
302Annex 14
303Annex 14
304Annex 15: Re Thomson [1855] 20 Beav 545.
305Annex 15
306Annex 16: A v. Hayden (1984) 156 CLR 532.
307Annex 16
308Annex 16
309Annex 16
310Annex 16
311Annex 16
312Annex 16
313Annex 16
314Annex 16
315Annex 16
316Annex 16
317Annex 16
318Annex 16
319320Annex 17: North v. Marra Developments Ltd (1981) 148 CLR 42.
321Annex 17
322Annex 17
323Annex 17
324Annex 17
325Annex 17
326Annex 17
327Annex 17
328Annex 17
329Annex 17
330Annex 17
331Annex 17
332Annex 17
333Annex 17
334Annex 17
335336Annex 18: Shearson Lehman Brothers Inc. v. Maclaine, Watson & Co. Ltd.,
International Tin Council Intervening (No. 2) [1988] 1 WLR 16.
The Weekly La Reports8 January 1988
16
!* HaErtfc Shearson Inc. v . Maclae Ltd. (No) (H.L.(E.)) [1988]
LORD GRIFFITHS. M y Lords, for th e reasons given i n th e speec h o A
my noble and learned friend Lord Havers, which I have had th e
opportunity o f reading i n draft, I too would dismis s th e appeal and
answer th e certified question, a s amended, i n th e affirmative.
Appeal dismissed.
Certified question, as amended,
answered in affirmative.°
Solicitors: Crown Prosecution Service, Headquarters; Victor Lissack
& Roscoe.
M. G .
D
[HOUSE O F LORDS]
*SHEARSON LEHMAN BROTHERS INC .
AND ANOTHER PLAINTIFFS
E
v.
MACLAINE, WATSON & CO. LTD. RESPONDENTS AND
AND OTHERS CROSS-APPELLANTS
AND
INTERNATIONAL TIN COUNCIL APPELLANT AND
(INTERVENER) (No. 2) . . CROSS-RESPONDENTS F
[CONSOLIDATED CROSS-APPEALS]
1987 Nov. 2, 3, 4, 5; Lord Bridge of Harwich, Lord Brandonof
Dec. 3 Oakbrook, Lord Griffiths, Lord Oliver of
Aylmertonand Lord Goffof Chieveley,-,
International Law—Treaty—International organisation—Immunity
from suit—Inviolability of official archives—Documents communi-
cated toconstituent members of organisation—Documents commu-
nicated by officers or employees of organisation with actual or
ostensible authority—Whether protected—Burden of proof-
Foreign sovereign immunity—International Tin Council (Immuni-
ties and Privileges) Order 1972(S.I. 1972 No. 120), arts. 7(1),
1
14(lf—Diplomatic Privileges Act 1964(c. 81), Sch. 1, art. 24
The International Tin Council (Immunities and Privileges)
Order 1972 providesby article.7:
1
InternationalTin Council (Immunitieasnd Privileges) Order 1972a,rt. 14(1):see
post,p.26A-B.
2Diplomatic Privileges Act 1964,.S1c,hart. 24: see post,.p24A.
337Annex 18
The Weekly Law Reports 8 January 1988
1 W.L.R. Shearso n Inc. v. Maclaine Ltd. (No. )2(H.L.(E.))
^ "(1) Th e council shall have the like inviolability o f official
archives a s ... i s accorded in respect of the official archives
of a diplomati c mission. ... "
In 1985, the International Ti n Council ("I.T.C.") , a n
internationa l organisation presently constituted under the Sixth
International Tin Agreement, a treat y concluded in 1981, ran
out o f funds i n a n unsuccessful attempt t o support the price o f
tin and collapsed. I n a n action arising out o f the collapse, the
B plaintiff s claime d against the first an d second defendants damages
for breach o f contract an d declarations a s t o the allege d
invalidity o f rul e M o f the rules o f the London Meta l Exchange
and against the third t o tenth defendants damages for allege d
inducement o f breach o f contract , negligence o r breach o f duty
and breaches o f articles 8 5 an d 8 6 o f the E.E.C. Treaty . O n
the fourth day o f the trial o f the action, the I.T.C. obtained the
C leav e o f the court t o intervene, claiming that numerous
documents tha t the parties proposed t o adduce in evidence were
inadmissible b y virtue o f articl e 7(1) o f the International Tin
Council (Immunities and Privileges) Order 1972 a s being
documents, o r copie s o f documents, in respect o f which the
I.T.C. had a statutory inviolability akin t o diplomatic privilege.
The questions arisin g were argued a s a preliminar y issue, and
x-j Webster J . gave rulings o f principle o n whether the documents
would b e admissible. Th e I.T.C. appealed from his rulings, an d
the plaintiff s an d defendants cross-appealed. Th e Court o f
Appeal, having delivered their judgments o n those rulings,
remitted the matter t o Webste r J .
On appeal b y the I.T.C. an d cross-appeal b y the
defendants:—
Held, dismissing the appeal and allowing the cross-appeal ,
E (1) that articl e 7(1) o f the International Tin Council (Immunitie s
and Privileges) Order 1972 was t o b e construed a s conferring
inviolability o n the archives and documents o f the I.T.C. t o the
same extent a s articl e 2 4 o f the Vienna Conventio n o n
Diplomatic Relation s set out i n Schedule 1 t o the Diplomatic
Privileges Act 1964 conferred inviolability o n the archives an d
documents o f a diplomatic mission, "archives an d documents o f
p the mission" in articl e 24 being construed a s thos e belonging t o
or held b y the mission; and that the protectio n conferred b y
article 24 and articl e 7(1) o f the Order o f 1972 was not confine d
to executive o r judicial action by the host state (post, pp. 24B-C,
F, 27E-G , 31F—32A).
(2) That, having regard t o articl e 14(1) o f the Order o f 1972,
the I.T.C. was a n entity distinct from its constituent member s in
the conduct o f its internal affairs; and that, accordingly, onc e a
G document had been communicated b y the I.T.C. t o a member
or a member' s representative , the protectio n afforded t o i t b y
article 7(1) o f the Order o f 1972 cease d to apply (post, pp. 25H —
26A,E , 31F—32A).
(3) That a document communicate d t o a third party b y a n
officer o r employee o f the I.T.C. with actual authority, express
or implied , o r with ostensible authority n o longer belonged t o
H the I.T.C. and accordingly n o longer enjoyed inviolability a s
part o f the official archives; that f an officer o r employee acte d
and was known t o b e acting in the course o f his employment in
communicating documents t o a third part y that would b e strong
prima facie evidence o f ostensibl e authority and rebuttal o f the
inference t o b e drawn therefrom would necessitate evidence o f
absence o f actual authority an d some circumstance such a s t o
put the third party o n inquiry (post, pp. 28A-B,E-F, 29E-G,
31F—32A).
338 Annex 18
The Weekly Lw a Reports8 January 1988
18
Shearson Inc.. Maclaine Ltd. (No.) (H.L.(E.) [1988]
(4) That th e rule o f foreign sovereign immunity, which th e ^
I.T.C. sought t o rely o n by analogy, tha t th e foreign sovereign
claiming immunity was not bound t o prove his title but was only
obliged t o produce prima facie evidence o f i t should not b e
extended further than was strictly necessary; tha t ther e was a
distinction to be drawn between a foreig n sovereign resisting a
claim made against him and his asserting a claim against
another, whethe r t o recover property o r t o assert a right of
property i n a document s o a s t o prevent i t being received i n B
evidence; and tha t production b y th e I.T.C. o f prima facie
evidence that a document had been communicated b y an officer
or employee t o a third party i n circumstances putting th e third
party on inquiry a s to the absence o f authority o f the officer or
employee would not prevent the parties to the action challenging
that evidence o r preclude th e court from adjudicating o n any
such issue, th e legal burden resting o n th e I.T.C. t o prove its ^
case (post, pp.30G—31c,31F—32A).
Juan Ysmael & Co. Inc. v. Government of the Republic of
Indonesia [1955] A.C. 72, P.C. distinguished.
Order of the Court o f Appeal set aside.
The following cases are referred t o i n th e opinio n o f Lord Bridge o f
Harwich: D
International Tin Council, In re [1987] 2 W.L.R. 1229; [1987] 1 All E.R.
890
Juan Ysmael & Co. Inc. v. Government of the Republic of Indonesia [1955]
A.C. 72; [1954] 3 W.L.R. 531; [1954] 3 All E.R. 236, P.C.
The following additional cases were cite d in argument: p .
Buttes Gas and Oil Co. v. Hammer (No. 3) [1982] A.C. 888; [1981] 3
W.L.R. 787; [1981] 3 All E.R. 616, H.L.(E.)
Congreso del Partido, I [1978] Q.B. 500; [1977] 3 W.L.R. 778; [1978] 1 All
E.R. 1169, C.A.
Empson v. Smith [1966] 1 Q.B. 426; [1965] 3 W.L.R. 380; [1965] 2 All E.R.
881, C.A.
Fayed v. Al-Tajir [1987] 3 W.L.R. 102; [1987] 2 All E.R. 396, C.A. p
Goddard v. Nationwide Building Society [1987] Q.B. 670; [1986] 3 W.L.R.
734; [1986] 3 All E.R. 264, C.A.
Intpro Properties (U.K.) Ltd. v. Sauvel [1983] Q.B. 1019; [1983] 2 W.L.R.
908; [1983] 2 All E.R. 495, C.A.
Kavanagh v. Hiscock [1974] Q.B. 600; [1974] 2 W.L.R. 421; [1974] 2 All
E.R. 177, D.C.
Rayner (J. H.) (Mincing Lane) Ltd. v. Department of Trade and Industry ^
(unreported), 2 4 June 1987, Staughton J .
Rose v. The King [1947] 3 D.L.R . 618
Standard Chartered Bank v. International Tin Council [1987] 1 W.L.R. 641;
[1986] 3 All E.R. 257
Triquet v. Bath (1764) 3 Burr. 1478
APPEAL and CROSS-APPEAL from th e Court o f Appeal. H
These were a n appeal b y th e interveners, th e International Tin
Council, and cross-appeals b y th e first defendants, Maclaine, Watson &
Co. Ltd., th e second defendants, J . H . Rayner (Mincing Lane) Ltd., th e
tenth defendants, th e Metal Marketing & Exchange Co . Ltd., and seven
other name d defendants from th e decision o f th e Court o f Appeal
(Dillon and Mustill L.JJ. and Sir Roualeyn Cumming-Bruce) o n 3 1 July
1987.
339Annex 18
The Weekly Law Reports 8 January 1988
19
1 W.L.R. Shearson Inc. v . Maclaine Ltd. (N) (H.L.(E.))
A Th e Court of Appeal, o n an appeal by the interveners from a ruling
of Webster J . given o n 29 June 1987 on a preliminary issue and cross-
appeals by the plaintiffs and b y th e first, second and third t o tenth
defendants from that ruling, mad e n o order save that the matter b e
remitted t o Webster J .
The preliminary issue had arisen i n proceedings b y th e plaintiffs,
Shearson Lehman Brothers Inc. and Shearson Lehma n Metals Ltd. ,
against the defendants claiming against the first and second defendant s
damages for breach o f contract and declarations a s t o th e alleged
invalidity of rule M of the London Metal Exchange and against the third
to tenth defendant s damages for alleged inducement o f breac h o f
contract, negligence or breach of duty and breaches of articles 85 and 86
of the E.E.C. Treaty.
C Th e Court of Appeal refused applications by the interveners and th e
defendants for leave t o appeal t o th e House o f Lords, but o n 1 9
October 1987 the Appeal Committee of the House of Lords (Lord Keith
of Kinkel, Lord Bridge o f Harwich and Lord Brandon o f Oakbrook)
allowedpetitions b y them for leave t o appeal and cross-appeal
respectively. The cross-appeals were consolidated.
D The fact s are set out i n the opinion of Lord Bridge of Harwich.
Nicholas Chambers Q. C., Rosalyn Higgins Q. C. and Peter Irvin for
the interveners .
Sydney Kentridge Q.C., John Higham and Adrian Hughes for the
defendants.
E
Their Lordships took time for consideration.
3 December . LORD BRIDGE O F HARWICH. M y Lords, the action
which gives rise to the present appeal and cross-appeal i s one of many
p proceedings arising out o f the financial collapse of the International Tin
Council ("the I.T.C.") . The hearing o f the action commenced before
Webster J. o n 8 June 1987. O n 11 June the I.T.C. obtained leave t o
intervene to claim that a large number o f documents proposed t o b e
adduced in evidence by the parties were rendered inadmissible by article
7(1) of the International Tin Counci l (Immunities and Privileges) Order
_ 1972 whic h provides:
"The council shall have the like inviolability of official archives as in
accordance with the 1961 Convention Articles is accorded in respect
of the official archives of a diplomatic mission."
The objection t o the productio n of the documents, which must al l be
taken to be relevant t o issues arising in the action, was opposed b y all
" partie s to the litigation. Between 1 1 and 28 June a number o f affidavits
were filed going to the issue of admissibility, but even now the evidence
is not closed. O n 29 June Webster J . delivered a judgment i n which he
records that at an early stage all the parties
"agreed wit h m y suggestion that all questions relating t o the
admissibility of evidence should b e deferred until I have given a
decision on the questions of principle that arise."
340 Annex 18
The Weekly Law Reports 8 January 1988
20
tf HanJich Shearson Inc. v . Maclaine Ltd. (No. 2 ) (H.[1988])
The judge proceede d t o give a number o f "rulings" o n a series o f A
abstract and hypothetical questions of law which had been argued before
him. I well understand th e considerations which prompted th e judge t o
think that the course h e took would b e th e mos t convenient and
expeditious way of disposing of the issues raised b y the intervention o f
the I.T.C. But wit h hindsight on e cannot escape from the conclusion
that great difficulties have arisen from th e attempt t o resolve questions
of law without, first, either finding the facts t o which the law falls to be
applied or requiring the parties, by way of pleading or otherwise, to set
out the fact s they allege wit h sufficient particularity t o raise specific
questions of law for decision.
Neither side was content with the judge's rulings and both appealed
to the Court o f Appeal. The matte r came before Dillon and Mustill
L.JJ. and Sir Roualeyn Cumming-Bruce. O n 3 1 July Dillon an d C
Mustill L.JJ . delivere d separate reserved judgments. Sir Roualeyn
Cumming-Bruce expressed agreement with both. Th e views of Dillon
and Mustill L.JJ. differed significantly from thos e expressed b y
Webster J . and , a t least i n some respects, with each other. The
difficulties arising from the hypothetica l an d academic nature o f the
exercise become fully apparent when one look s a t the formal order ^
which was drawn u p t o give effect t o the decision o f the Court o f
Appeal. Th e order sets out what i s described a s the "ruling" o f
Webster J . i n a series o f 1 1 propositions, some o f them qualified b y
such adverbial phrases a s "prima facie" o r "as I presently think," but
proceeds t o make n o order o n the appeal o r cross-appeal. N o doubt
the intention was that the matte r should g o back t o Webster J.,
leaving him t o extract an d apply a s best h e could th e propositions of ^
law to b e found i n the two main judgments o f the Court o f Appeal.
The discussion a s t o whethe r leave t o appeal t o your Lordship's
House should b e granted, which followed the handin g down o f the
judgments, shows that the members o f the Court o f Appeal were fully
aware of the acute difficulty of dealing with the case i n the absenc e of
any findings or assumptions o f relevant fact. Dillon L.J. observed a t F
one point:
"It is a problem which really needs to be, I would hav e thought, in
a much more final shape before their Lordships could properly b e
invited to give any guidance on it."
The Court of Appeal refused leave t o appeal. G
When the petitions for leave t o appeal, presented b y the I.T.C, o n
the one side, and all th e defendants i n the action, o n the other , came
before m y noble and learne d friends Lord Keit h o f Kinkel, Lord
Brandon of Oakbrook and myself, sitting as the Appeal Committee, w e
fully shared the view expressed b y Dillon L.J. i n the remark quoted.
But our great reluctance t o grant leave t o appeal was overcome b y the J_J
fear convincingly expressed on both sides that the alternative course o f
sending th e matter back t o Webste r J . t o find the facts , with the
probability of fresh appeals t o the Court o f Appeal and t o this House
ensuing, would b e likely t o increase the already considerable and
regrettable delay i n th e disposal o f the action occasioned b y the
intervention of the I.T.C . Leave t o appeal was accordingly granted, but
the Appeal Committee stipulated tha t the parties should attempt t o
341Annex 18
The Weekly Law Reports 8 January 1988
21
1 W.L.R. Shearson Inc. v . Maclaine Ltd. (No. 2 ) (H.L.(E.)) Lri "« ?
or Harwich
A agree assumptions o f fact which i t was hoped would b e sufficient t o
narrow and define th e issues t o b e determined. A first draf t o f th e
agreed assumptions was put before th e Appeal Committee before leave
was granted and a more elaborate version was presented a s the basis for
argument of the appeal. Even now I a m not satisfied, on the one hand,
that the agreed assumptions are, i n all cases, sufficiently precise and
specific to provide a wholly satisfactory foundation for authoritative
preliminary rulings of law nor, o n the other hand , that they d o not, i n
some cases, rais e questions that probably will tur n out t o b e quit e
academic. However, in the way the case has developed, w e can only do
our best with the material before u s to provide an authoritative basis for
the resolution o f the issues.
The "Agreed Assumptions o f Fact" ar e set out i n a document s o
C entitled which I must quote i n full:
"The parties t o the appeal agree t o the assumptions o f fact set
out below for the purposes o f this appeal. I n each cas e the term
'I.T.C. document' refer s to: (a) a n original, or (b) one o f a printed
run, o r (c) a photocopy of: (i) a document o f record, o r (ii) a
document drafted b y th e I.T.C., o r (iii ) a document circulated
D within th e council of the I.T.C, o r (iv) a document received by the
I.T.C.
"1.A n I.T.C. documen t was supplied t o a third party (i) wit h
the consent of the I.T.C. o r (ii) without th e consent of the I.T.C
being asked for or given, by: (a) a member of the I.T.C. t o whom it
was distributed in the ordinary course of the I.T.C's business ; (b) a
g member o f a delegation t o the I.T.C. without the authority o f the
relevant member [of the I.T.C]; (c) a n adviser to a member of the
I.T.C. which obtained th e document a s in (a); (d) a n institution
having observer status a t the I.T.C. t o whom it was distributed i n
the ordinary course o f the I.T.C's business; (e) th e executive
secretary of the Association o f Tin Producing Countries, whose
membership includes producer members of the I.T.C.
F "2. A n I.T.C. documen t was supplied t o a third party b y an
officer or by another membe r of staff of the I.T.C: (a) wit h actual
authority; (b) with ostensible authority; (c) without any authority.
"3.Facts a s in (2), but the document was supplied t o a third
party with whom th e I.T.C. deal t i n order t o reassure that thir d
party of the financial position of the I.T.C.
G "4. Facts a s in (2), but th e document was supplied t o a third
party to assist i n connection with settlemen t negotiations after th e
I.T.C. became unable to meet its commitments.
5. Facts a s in (1), (2), (3) o r (4) but the third party recipient
made a copy o f the document and sent the copy t o another third
party.
H "6. A n I.T.C. document which had bee n discussed or referred
to i n th e settlemen t negotiations between the I.T.C. and third
parties without objection o n the part o f the I.T.C. subsequently
came into th e hands of: (a) a third party with whom i t had bee n
discussed or referred to, o r (b) another third party.
"7. Th e House o f Commons Select Committee published a n
I.T.C. document i n the minutes of evidence of the select committee
inquiry. Those minutes o f evidence were ordered t o be published
342 Annex 18
The Weekly Law Reports 8 January 1988
22
oMrtanlich' Shearson Inc. v . Maclaine Ltd. (No. 2 ) (H.L[1988]
by th e House o f Commons, and ar e publicly available from A
H.M.S.O.
"8. A copy o f an I.T.C . document which had bee n before th e
House of Commons Select Committee was placed i n the House of
Lords Library. I t is there available for inspection b y members of
the public.
"9. A n I.T.C. documen t was released b y the U.S. authorities
under the United States Freedom of Information Act.
"10. A n I.T.C. documen t whose provenanc e was unknown
became widely available i n the market and was referred t o o r
quoted from i n press reports. [ 5 U.S.C. para. 552 , as amended by
the Freedom of Information Reform Act 1986 (Public Law No. 99-
570,paras. 1801-1804).]
"11.A copy o f an I.T.C. documen t was received from a private C
individual. The party who received i t does not know wher e or how
the private individual obtained it.
"12.A document was prepared b y a third party which contained
information derived from a n I.T.C. document and was sent t o the
I.T.C. A copy o f this documen t was subsequently sent out b y the
I.T.C. to member states under cover of an I.T.C. frontsheet marked p
'Confidential.'
"13. Information was derive d b y third parties from I.T.C.
documents in each of the categories referred t o above. Some o r all
of this information was included i n documents prepare d b y third
parties and thos e documents were neither sent t o nor seen b y the
I.T.C."
E
Before addressing th e issues which must b e resolved i n order t o
determine whether documents in the several categories contemplated by
the assumed facts are rendered inadmissible by article 7(1) of the Order
of 1972 it is appropriate t o sketch the background and t o refer t o some
preliminary considerations.
The I.T.C. i s a n internationa l organisatio n presently constitute d p
under the Sixth International Tin Agreement, a treaty concluded i n
1981.There ar e 2 2 members includin g the United Kingdo m and the
European Economic Community. The headquarters o f the organisation ,
as constituted under a n earlier treaty, were established in London under
the Headquarters Agreement, a treaty between the United Kingdo m
and the I.T.C. concluded i n 1972. The Order o f 1972 was made under «- .
the International Organisations Act 1968 t o come into operation when
the Headquarters Agreemen t came into force .
The functions and unfortunate collapse o f the I.T.C. ar e concisely
described and recounted i n th e judgment o f Millett J . i n In re
International Tin Council [1987] 2 W.L.R. 1229, 1233, where he said:
"Its main functions were t o provide for adjustment between world J J
production and consumption of tin and to alleviate serious difficulties
arising from surplus or shortage of tin, whether anticipated o r real,
and t o prevent excessive fluctuations i n the price o f tin and i n
export earnings from tin. To these ends, it maintained and operated
a buffer stock of tin and engaged in the buying and selling of tin by
entering into sale and purchase contracts, both for immediat e and
forward delivery, o n recognised markets includin g th e Londo n
343Annex 18
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23
1 W.L.R. Shearson Inc. v . Maclaine Ltd. (No. 2 ) (H.L.Lord) Bridge
of Harwich
A Metal Exchange. I n 1985, in a vain attempt t o support th e world
price of tin, the I.T.C. ra n out of money and collapsed. In October
1985 th e I.T.C. announced that i t was unable t o mee t its
commitments. Dealings in tin on the London Metal Exchange were
suspended and the I.T.C. ceased t o trade in tin."
For the sequel t o this story I turn to the judgment in the instant case
R
of Dillon L.J. i n a passage which reads:
"The collapse of the I.T.C. achieved considerable notoriety a t the
time, both i n financial circles and among those concerned with tin.
There was some attempt to negotiate a financial rescue package, but
it was unsuccessful. Th e I.T.C. was left with vas t liabilities. Th e
Q effect o f the collapse, and of the suspension of dealings in tin on the
London Metal Exchange, was a drastic fall i n the price o f tin and
financial chaos among dealers and brokers i n tin who were parties
to uncompleted contracts entered into befor e th e collapse. I t also,
it is said, led the tenth defendant in this action, the Metal Market &
Exchange Co. Ltd., which operates the London Metal Exchange, t o
add a new rule M t o th e rules o f th e exchange, whereby al l
outstanding bargains in tin between members of the exchange were
deemed to have been reversed b y reverse bargains at a lower close-
out price prescribe d b y th e exchange. Th e nature o f the presen t
action is that th e plaintiffs ar e seeking t o enforce against th e first
and second defendant s contracts for tin which had before the
collapse of th e I.T.C. been entered into between th e plaintiffs a s
E sellers and those defendants a s buyers at prices well above present
market prices, and th e plaintiffs ar e also seeking t o establish that
the new rule M is not valid or binding on them."
A question which troubled m e and, I believe, others o f your
Lordships i n the course o f the argument was why this insolvent
F organisation should have undertaken the expense o f intervening i n the
present litigation an d what detriment t o any subsisting interest o f the
I.T.C. was apprehended b y the use i n evidence before Webster J . of
the dispute d documents, especially having regard t o the inclusion o f
such categories a s those referred t o in paragraphs 7 , 8 an d 9 o f the
assumed facts. The answer, s o far a s counsel for the I.T.C. were able
Q t o proffer one, seems t o b e that n o detrimen t i s apprehended from
the use of any o f the document s in the present litigation, bu t that the
I.T.C. felt obliged t o intervene lest failure t o do so should preclude i t
from objecting t o the admission o f similar documents i n othe r
litigation in which it may be directly affected an d also to establish that
the protection o f article 7(1) of the Order o f 1972 may be invoked t o
„ prevent the us e i n evidence for probative purposes o f documentary
material notwithstanding that i t is fully available t o the public. That
said, I bear i n mind, o f course, that, i f th e claim t o exclude the
documents is well founded i n law, the I.T.C. are entitled t o assert i t
without having t o satisfy your Lordships that i t will serve an y useful
purpose.
The reference i n article 7(1) o f the Order o f 1972 t o th e "1961
Convention Articles" i s a reference t o th e articles o f the Vienna
344 Annex 18
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24
of Hanrich Shearson Inc. v . Maclaine Ltd. (No. 2 ) (H.L[1988]
Convention on Diplomatic Relations which are set out i n Schedule 1 to A
the Diplomatic Privileges Act 1964. Article 24 of the Vienna Convention
provides: "The archives and documents of the mission shall be inviolable
at any time and wherever the y may be."
In the argument before your Lordship s nothing turned o n the use of
the word "official" i n article 7(1 ) o f th e Order o f 1972 and Mr.
Kentridge Q.C., appearing for all the defendants i n th e action a s
respondents to th e I.T.C.'s appeal and a s cross-appellants (to whom I ^
will simply refer as "the defendants"), was content t o accept that article
7(1) of the Order of 1972 should be construed as conferring inviolability
on the archives and documents o f the I.T.C. t o th e like extent that
article 2 4 confers inviolability o n th e archives and documents o f a
diplomatic mission. Professor Higgins Q.C., for the I.T.C, relied, a s an
aid to construction, o n article 4 o f the Headquarters Agreement which Q
provides:
"The archives of the council shall be inviolable. The term 'archives'
includes all records, correspondence, documents, manuscripts ,
photographs, films and recordings belonging t o o r held b y the
council."
The Court o f Appeal, for reasons which I need not examine, did not
accept that th e definition i n th e Headquarters Agreement could b e
relied o n i n construing th e Order o f 1972. But Professor Higgin s
helpfully drew your Lordships' attention t o a consistent practice i n
domestic legislation, enacted to give effect to treaties concluded b y the
United Kingdom with international organisations, o f referring i n the
domestic enactment to "archives" or "official archives" simpliciter, when E
the corresponding treaty embodied a definition similar to that in article 4
of th e Headquarters Agreement. Nothin g turns o n the terms used i n
the definition except the phrase "belonging t o or held b y the council"
which, Professor Higgins submitted , was available i n the light o f th e
legislative practice t o indicate the meanin g intended b y th e domestic
enactment. Mr. Kentridge presented n o argument to the contrary and I p
am the readie r to accede t o the submission since i t would seem t o me
perfectly natural to interpret the phrase "the archives and documents of
the mission" in article 24 of the Vienn a Convention a s referring to the
archives and documents belonging to or held b y the mission and thus I
am inclined to the view that resort t o the definition in the Headquarters
Agreement only makes explicit what is already implicit in article 7(1) of
the Order o f 1972 interpreted b y reference t o article 24 of the Vienna G
Convention.
We are not in this appeal in any way concerned with documents held
by the I.T.C. E x hypothesi the categories o f documents in the assumed
facts ar e held b y third parties. N o claim i s made agains t th e I.T.C.
requiring them to produce documents which they hold. Thus th e central
question at the heart o f the dispute which has to be asked in relation to H
each category is whether the documents in that category "belong to" the
I.T.C. I n relation t o the categories embraced i n paragraphs 2 t o 13 of
the assumed facts I shall shortly need t o examine a number o f factors
bearing upon that centra l question and t o consider whether light i s
thrown upon the ambit o f the documents which can b e regarded a s
belonging to the I.T.C. b y the concept of inviolability which attaches to
the documents if they do.
345Annex 18
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1 W.L.R. Shearson Inc. v . Maclaine Ltd. (No. )2(H.L.(E.)) Lord Bridge
of Harwich
A But the first and perhaps most importan t categories of documents in
dispute, judging by the central place accorded t o them in argument, ar e
the several categories o f documents embraced i n paragraph 1 o f th e
assumed facts. They raise a special question said t o turn on the peculiar
juristic qualities o f internationa l organisations i n general and o f th e
I.T.C. in particular and upon th e relationship between the I.T.C. and its
constituent members, whether sovereign states o r intergovernmental
organisations. Th e submission for th e I.T.C. was that all documents
relating in any way t o the business of the I.T.C. which originate withi n
the I.T.C. and therefore commence life a s documents which belong t o
the I.T.C. retain that character unimpaire d when they are communicated
to constituent member s o r their representatives. Thus i t was said, for
example, that, when th e official representative o f th e Malaysian
C Government leaves a meeting o f the I.T.C. carrying away in his briefcase
a sheaf of minutes and reports about th e business of the I.T.C, all those
documents remain part o f the official archives o f the I.T.C. and stil l
belong t o th e I.T.C. not only when they are i n th e Malaysian
representative's hotel bedroom i n London, but als o when he returns t o
Kuala Lumpur and hands them over t o his own government. This led t o
j} a n interesting argument a s t o th e exten t t o which United Kingdo m
domestic legislation cn be construed as conferring diplomatic inviolability
of th e kind i n question extraterritorially . But I find i t unnecessary t o
discuss this issue separately since it seems to me that th e case advanced
by the I.T.C. i n relation t o documents communicated by the I.T.C. t o
constituent members or their representatives fails a t an earlier stage.
Article 1 6 o f th e Sixth International Tin Agreement i s headed
k "Privileges and immunities " and provides as follows:
"1. Th e council shall have legal personality. I t shall i n particular
have the capacity t o contract, t o acquire and dispose o f movable
and immovable property and t o institute legal proceedings . 2. The
council shall have i n the territory o f each member, t o th e extent
consistent with its law, such exemption from taxation on the assets,
income and other property o f the council a s may be necessary for
the discharge of its functions under this agreement . 3 . The council
shall be accorded i n th e territory o f each membe r such currency
exchange facilities a s may b e necessary for th e discharge o f it s
functions unde r this agreement . 4 . The status , privileges and
immunities of th e council i n the territory o f th e host government
G shall b e governed b y a Headquarters Agreemen t between th e host
government and the council."
The Headquarters Agreement between the United Kingdo m an d th e
I.T.C. was made in pursuance of paragraph 4 of this article.
I need not cit e in extenso other provisions of the treaty. The I.T.C.
H has its own distinct powers and functions under article 7 o f the treaty,
exercisable in accordance with the procedure laid down by the treaty, in
particular the voting procedure prescribed by articles 14 and 15.
In th e light o f these provisions determining th e constitution o f th e
I.T.C. I found i t difficult to follow Professor Higgins' argument that i n
the conduct o f it s internal affairs the I.T.C. could not b e treated a s
distinct from its constituen t members. But whatever validity that
argument might hav e i n an y other context, i t seem s t o m e t o b e
346 Annex 18
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26
tf Harwich' Shearson Inc. v . Maclaine Ltd. (No. 2 ) (H.L[1988]
conclusively refuted for present purposes by article 14(1) of the Order of A
1972.This provides, so far as relevant:
"Except in so far as in any particular case any privilege or immunity
is waived b y the government o f the membe r country o r b y th e
intergovernmental organisation whom they represent, representatives
of member countries o f th e council and o f intergovernmental
organisations participating i n th e International Tin Agreement i n g
accordance with article 50 of the Fourth International Tin Agreement
or a corresponding article i n any succeeding agreement shall
enjoy:—...(b) whil e exercising their functions and during their
journeys t o and from th e place o f meetings convened b y th e
council . . . th e like inviolability for all their official papers and
documents as is accorded to the head of a diplomatic mission; ..."
C
The Order o f 1972 was made under sectio n 1 o f th e Act o f 1968.
The effect o f section 1(2) i s t o empower Her Majesty b y Order i n
Council to "specify an organisation" to which section 1 applies (here th e
I.T.C.) and t o confer relevant diplomatic immunities and privileges "in
respect of the organisation s o specified." It is perfectly clear, therefore,
that in article 14(1)(6) of the Order of 1972 the phrase "all their official
papers and documents" relates t o documents concerning I.T.C. business
and includes documents emanating from the I.T.C. which ar e now n o
longer documents of th e I.T.C. but documents of th e member country
or intergovernmental organisation. I t i s the member who both need s
and, by virtue of this provision, enjoys a n inviolability in respect of the
documents which is distinct from that attaching t o the "official archives"
of the I.T.C. and, still more significantly, article 1 4 expressly recognises E
that it is the member, not th e I.T.C, b y whom this inviolability may be
waived. It follows that onc e a document has bee n communicated by the
I.T.C. to a member or the representative o f a member the protection of
article 7(1) of the Order o f 1972 ceases to apply t o it. The documents
of th e categories referred t o i n paragraph 1(a), (b) and (c) o f the
assumed facts are not, therefore, rendere d inadmissible a s claimed. I t
p
was, I think, conceded but mus t in any event follow logically that th e
same conclusion applies to the categories in paragraph 1(d) and (e) .
The issues arisin g for consideratio n i n determining whether th e
remaining categories of documents contemplated b y the assumed fact s
are rendered inadmissible by article 7(1) of the Order of 1972 have been
very considerably narrowe d b y concessions which have been mad e a t
different stages in the proceedings up to the conclusion of the arguments G
addressed to your Lordships. As Dillon L.J. recorded in his judgment:
"it has not bee n suggested that any o f the copies of I.T.C. archival
documents which have come into th e possession o f an y o f th e
parties t o the action hav e bee n stole n from the premise s of th e
I.T.C. o r have been illicitly copied withi n those premises o r have
been obtained b y bribing or deceiving members of the staff o f the H
I.T.C."
It was conceded before your Lordships that in these circumstances it was
unnecessary to consider the possibility that any I.T.C. document now in
the hands of a thir d party, or any original I.T.C. documen t referred t o
as the basis of any derivative document, was originally obtained by any
dishonesty either on the part o f the third party who first obtained i t or
347Annex 18
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1 W.L.R. Shearso n Inc. v. Maclaine Ltd. (No. )2(H.L.(E.)) L?},'*8<
of Harwich
A o n the part o f any member o f th e staff o f th e I.T.C. who first
communicated it t o that third party. I t was further conceded before
your Lordships that n o question no w arises with respect t o an y
documents held by third parties o n loan from the I.T.C. o r otherwise as
bailees or agents for th e I.T.C.
There is a danger o f some confusion of thought clouding the issues
for decision from the use o f the term "confidentiality" t o describe that
" which article 7(1) o f the Order o f 1972 protects. Of course in one sense
it is no doubt true that th e purpose o f conferring inviolability o n th e
archives and documents o f a diplomatic missio n and o n th e official
archives of the I.T.C. i s to preserve the confidentiality of the information
which the documents contain. But o n th e other hand i t is now clear ,
and was rightl y accepted b y counsel for th e I.T.C, whatever doubt
C there ma y have been a t any earlier stage in these proceedings, that i f a
document was communicated t o a third party b y or on behalf o f th e
I.T.C. i n circumstances such a s to impose a duty o f confidentiality on
the third party not t o disclose th e information which th e documen t
contained, any breach o f that duty o f confidentiality would b e quit e
irrelevant to the claim which the I.T.C. i s now seeking t o establish. If
n A writes t o B in confidence, A may be able to restrain a breach o f that
confidence in appropriate proceedings, but the imposition o f a duty o f
confidence does not prevent the property in the letter which conveys the
confidential information passing i n the ordinary course from A t o B .
When A writes the confidential letter, it belongs to A. When B receives
it, it belongs to B. I prefer therefore t o speak not of the confidentiality,
but o f the privacy, o f documents which article 2 4 o f th e Vienna
E Convention and article 7(1) o f the Order o f 1972 ar e designed t o
protect.
Mr. Kentridge presented a forcefu l argument for th e defendant s
based on the proposition that th e only protection which th e status o f
inviolability conferred by article 24 of the Vienna Convention and article
7(1) of the Order o f 1972 affords is against executive or judicial action
p b y th e host state. Hence, i t was submitted , even i f a documen t was
stolen, o r otherwise obtained b y improper means, from a diplomatic
mission, inviolability could not be relied on to prevent the thief or other
violator from putting i t in evidence, but the mission would b e driven to
invoke some other groun d of objection t o its admissibility. I need not
examine this argument at length. I reject i t substantially for the reasons
given b y th e Court o f Appeal . The underlying purpose o f
G the inviolability conferred i s t o protect the privac y o f diplomatic
communications. I f that privacy i s violated b y a citizen, i t would b e
wholly inimical to the underlying purpose that th e judicial authorities of
the host stat e should countenance th e violation b y permitting th e
violator, o r any one who receives th e document from th e violator, t o
make use of the document in judicial proceedings.
H A t the heart o f the issue on which the validity of the I.T.C.'s claim
to inviolability for th e categories of document referred t o in paragraphs
2 to 13 of the assumed facts depends lies the question of authority. As I
have pointed out in connection with the question of confidentiality, if A,
an individual, communicates a documen t t o B i n th e absence o f any
relationship of lender an d borrower, bailo r and bailee o r principal and
agent, the ordinary inference must b e that the property in the document
communicated passes to B when h e receives it. If A i s a body such a s
348 Annex 18
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of Ha"!* Shearson Inc. v . Maclaine Ltd. (No. 2 ) (H.L.[1988]
the I.T.C. which can only act through an agent, I see n o reason why the A
same inference should not b e drawn in respect of any communication to
B which A's agent had authority t o make. Accordingl y I have n o
difficulty, in th e light o f the concession s t o which I have referred, i n
concluding that a document i n categories 2(a) o r (b) o f the assume d
facts,sc. a documen t communicated t o a third party b y an officer o r
employee of the I.T.C. with actual authority, express or implied, or with
ostensible authority, n o longer belongs t o th e I.T.C. and hence n o
longer enjoys inviolability a s part of th e official archives. But what i s
here involved i n th e concept o f ostensible authority? The issue o f
ostensible authority normally falls for decision where one party a s agent
has purported t o undertake some obligatio n on behalf of another party
as principal. I n those circumstances th e party seeking t o enforce the
obligation in reliance o n th e agent's ostensible authority will need t o C
show that th e principal held th e agent out a s having th e necessary
authority so as to create an estoppel. But here ther e is no question of
any obligation t o b e enforced. The question i s simply whether a
limitation upon the actual authority o f a n officer o r employee o f th e
I.T.C. who, acting honestly and i n the course of his employment by the
I.T.C, communicates a documen t to a third party prevents the document D
communicated becoming th e property o f the recipient, notwithstanding
that the recipient i s unaware of any lack of authority. I n the real world
it seems t o me that business would come t o a standstill i f persons who
receive documents from clerks o r secretaries , acting i n the course o f
their employment, were not entitled t o assume that those documents
were sent with the authority o f the employer, and i f this is true of the F
ostensible authority of staff i n such humble grades, i t must equally be
true of staff at higher levels. Thus, i n my opinion, the very fact that a n
officer or employee of the I.T.C. was acting and known t o be acting in
the course o f his employment i n communicating documents t o a third
party would be strong prima facie evidence that he had at least ostensible
authority t o d o so. T o rebu t th e inference from that prima facie
evidence it would be necessary, as 1 think, not only t o prove absence of F
actual authority but als o t o show something i n th e circumstances i n
which the transaction took place sufficient t o put the recipient o f the
document o n inquiry that th e I.T.C.'s officer o r employee might b e
acting without authority.
In the light of these considerations I strongly suspect that th e issue
raised as to documents i n category 2(c) o f the assumed facts is purely G
academic. This suspicion is reinforced, first, by the fact that no evidence
has yet been adduced t o suggest any want o f authority o n the part o f
any officer o r employee o f th e I.T.C. who communicated an y of th e
disputed documents to any third party, although the I.T.C. have reserved
the right t o adduce such evidence; secondly, b y th e particular
circumstances in which documents in categories 3 and 4 o f the assumed J J
facts ar e taken t o have bee n communicated. These categories have
presumably been singled out for special consideratio n a s typical cases
where authority migh t b e i n dispute . But t o m y mind i t i s beyond
argument that a n officer o r employee o f the I.T.C. authorised t o
approach a third party t o reassure him of th e financial stability of th e
I.T.C. or, when that assurance was falsified , authorised t o conduct
negotiations for a settlement must thereb y have bee n clothed with
349Annex 18
The Weekly Law Reports 8 January 1988
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1 W.L.R. Shearson Inc. v . Maclaine Ltd. (No. )2(H.L.(E.)) Lord Bridge
of Harwich
A ostensible authority t o supply an y documents t o th e third party which
might assist in promoting the authorised purpose.
I think it is possible t o reach th e same conclusion a s that which I
have sought to express in considering the question of ostensible authority
by approaching the issue from another point o f view. Th e protection
which article 7(1) o f th e Order o f 1972 provides i s expressed b y the
word "inviolability." An infringement of the protection must amount t o
a violation of the protected documents. I t would surely b e a misuse of
language to say that a protected documen t had been violated because an
officer of the I.T.C. supplied i t to a third party without authority, unless
the recipient was o r ought t o have been aware o f th e absence o f
authority. Putting the same point i n other language, which I gratefully
adopt from Mr. Kentridge, the inviolabilit y conferred o n th e archives
C and documents o f a diplomatic mission cannot have been intended t o
protect the mission from th e consequences of errors o n the part o f the
staff whom the mission chose to employ.
Turning to the remaining categorie s of documents which fall t o be
considered i n accordanc e with the assumed facts, the concessions
excluding dishonesty, loan , bailment o r agency a s the basis o f the
j-joriginal transmission from the I.T.C. t o any third party o f I.T.C.
documents embraced within the categories , o r referred to , a s for
example in paragraphs 5 , 12 and 13 , as the source from which othe r
documents were derived, entitl e and indeed oblige you r Lordships t o
assume that the original transmissio n whereby al l these document s
initially passed out o f the possession an d control o f the I.T.C. int o
the possession and control o f third parties was effected b y officers or
E employee s o f the I.T.C. acting i n the course o f thei r employment.
This leads back t o the conclusion that i n every case the determinative
question whether the original communication o f any document s was
authorised o r unauthorised depends upon the considerations already
examined under paragrap h 2.
The conclusions I hav e expressed may seem t o go a long way, a s I
F think they do, towards shutting th e door o n th e I.T.C.'s claim t o
exclude the admission in evidence of any of the disputed documents i n
reliance on article 7(1) of the Order o f 1972. But they must, of course,
since the agreed assumptions d o not admit o f a final ruling, a t least
leave the door ajar. The onl y live issue, however, which, as it seems to
me,will remain for decisio n b y Webster J . i s whether any particular
P documen t proposed t o be put in evidence, or in the case of a derivative
document, the original I.T.C. document communicated b y an officer or
employee o f th e I.T.C. t o a thir d party o n which th e derivative
document is founded, was so communicated without authority, actual or
ostensible.
It was argued for th e I.T.C. that the principle expressed i n Juan
Ysmael & Co. Inc. v. Government of the Republic of Indonesia [1955]
" A.C . 72 would operate t o preclude th e court from adjudicating upo n
any such issue. The questio n which arose in that case appear s from the
following passage i n th e judgment o f th e Judicial Committee o f the
Privy Council delivered by Earl Jowitt, at pp. 86-87:
"The rule accordin g t o a foreign sovereign government immunity
against being sued has been considere d and applied i n many cases.
The basis o f th e rule i s that i t is beneath th e dignity of a foreign
350 Annex 18
The Weekly La w Reports 8 January 1988
30
ofHarwic Shearson Inc. v . Maclaine Ltd. (No . 2) (H.L.[1988]
sovereign government to submit to the jurisdiction of an alien court, A
and that n o government shoul d b e faced with th e alternative o f
either submitting t o such indignity o r losing its property. Th e rule
was stated by Lord Atkin i n The Cristina [1938] A.C. 485, 490 a s
involving two propositions. The first, that th e courts o f a country
cannot implead a foreign sovereign; and the second, that they
would not by their process, whether th e sovereign is a party t o the
proceedings or not, seize or detain property which is his or of which * *
he is in possession o r control. ... I n whichever way th e rule i s
stated i t is apparent that difficulty may arise i n the application o f
the second branc h o f it . Where th e foreign sovereign stat e i s
directly impleaded the writ will b e set aside, but wher e the foreign
state is not a party to the proceedings, but claims that it is interested
in the property to which the action relates and is therefore indirectly Q
impleaded, a difficult question arises a s t o how far th e foreign
sovereign government must go in establishing its right to the interest
claimed."
The Board's answer to the difficult question posed appears at pp. 89-
90 where Earl Jowitt said:
"In their Lordships' opinion a foreign government claiming that it s u
interest in property will be affected by the judgment in an action to
which it i s not a party i s not bound a s a condition o f obtaining
immunity to prove its title t o th e interes t claimed, but i t must
produce evidence t o satisfy the court that it s claim i s not merel y
illusory, nor founded o n a titl e manifestly defective. The court
must b e satisfied tha t conflicting right s have t o b e decided i n £
relation to the foreign government's claim. When th e court reaches
that point i t must decline t o decide th e rights and mus t stay th e
action, but i t ought not t o stay the action before that point i s
reached."
If the Juan Ysmael principle falls to be applied, I a m of opinion, for
the reasons I have already explained , that eve n th e limited evidential F
burden imposed upon a sovereign claiming immunity, o n the ground
that he is indirectly impleaded by a claim to property to which he asserts
title, could only b e discharged here b y the I.T.C. i f they could adduce
some evidence t o show that the original communication o f a disputed
document t o a third party was effected i n circumstances putting th e
recipient on inquiry a s to the absence o f authority o n the part o f the Q
officer or employee of the I.T.C. t o make such a communication. But,
for my part, while I recognise the propriety o f safeguarding th e dignity
of foreign sovereigns b y securing that they ar e neither directly nor
indirectly impleaded, I should b e extremely reluctant t o see the rule i n
Juan Ysmael extended any furthe r than i s strictly necessary for that
purpose. I t i s one thin g for the courts t o decline jurisdiction t o
adjudicate upon a clai m b y a plaintiff t o recover from a defendant H
property to which a foreign sovereign asserts a titl e which he is able to
support by prima facie evidence. I t would be an entirely different thing
for the court to decline jurisdiction to adjudicate on a claim by a foreign
sovereign or any other organisation entitled to invoke the inviolability of
diplomatic documents t o prevent th e court from receiving otherwise
relevant and available evidence in proceedings to which the sovereign is
not a party. All other distinctions apart, i n the first case the sovereign is
351Annex 18
The Weekly Law Reports 8 January 1988
31
Lo r Bg
1 W.L.R. Shearson Inc. v. MaclaineLtv. (No. 2) (H.L.(E.)) , i !5 f
o f Harwich
A resisting a claim made agains t him, in the second he is asserting a claim
against another. I f a sovereign wishes t o recover his property from a
third party in possession of it, he must choose between saving his dignity
or invoking and thereb y submitting t o the jurisdiction o f th e court. I
cannot see why it should make any difference that the sovereign, instead
of seeking t o recover his property, is, i n effect, asserting a right o f
property in a document in the possession of a third party as a ground for
° preventing th e cour t from receiving that documen t i n evidence .
Accordingly, i n m y opinion, i f the I.T.C. d o produce prima facie
evidence to the effect I have indicated, that will not b e the end of the
matter, but the parties t o the action will be entitled to challenge and, if
they can, t o controvert that evidence and th e legal burden will rest o n
the I.T.C. t o establish that th e relevant document was communicated to
Q the third party without authority, actual o r ostensible, with th e
consequence that i t did not cease t o be part o f the official archives of
the I.T.C.
Having regard t o th e way i n which this matter reached your
Lordships, i t i s not perhaps surprising that one cannot identify wit h
precision the issues raised by the appeal and the cross-appeal respectively.
But the effect of the conclusions I have expressed is that the I.T.C. have
D faile d an d th e defendants hav e succeeded o n all th e issues save that
raised by the separate argument advanced by Mr. Kentridge with respect
to inviolability which I have rejected. I n the event th e rejection of that
argument turns out t o be of minimal significance in the context o f th e
overall dispute. I t seems t o me, therefore, that the appropriate order
would be that the appeal be dismissed and the cross-appeal allowed, that
£ th e order of the Court of Appeal b e set aside, that ther e be substituted
therefor an order that th e matter be remitted to Webster J. to determine
the admissibility o f th e disputed documents i n accordance with th e
opinions expressed in your Lordships' House and that th e costs of th e
proceedings before th e House b e paid b y the I.T.C. I would not think
it appropriate t o make any order with respect t o the cost s in the Cour t
of Appeal, wher e many of the defendants were separately represented ,
F and th e costs o f th e proceedings o n th e I.T.C.'s intervention befor e
Webster J. will, of course, remain i n his discretion.
LORD BRANDON OF OAKBROOK. My Lords, I hav e had th e advantage
of reading in draft the speech prepare d by my noble and learned friend
Lord Bridge of Harwich. I agree wit h it, and for the reasons which h e
P gives I would make th e orders i n respect o f both th e appeal and th e
cross-appeal proposed by him.
LORD GRIFFITHS. M y Lords, I hav e had the advantag e of reading in
draft the speec h prepared by my noble and learned friend Lord Bridge
of Harwich, and for th e reasons that h e gives I to o would dismiss th e
appeal and allow the cross-appeal.
H
LORD OLIVER O F AYLMERTON. My Lords, I have had th e advantage
of reading in draft the speech delivered by my noble and learned friend,
Lord Bridge of Harwich. I agree with i t and concur i n the order which
he has proposed.
LORD GOFF O F CHIEVELEY. My Lords, for the reasons given i n th e
speech of my noble and learned friend Lord Bridge o f Harwich, which I
352 Annex 18
The Weekly La w Reports 8 January 1988
32
rfChievdey Shearson Inc. v . Maclaine Ltd. (No. 2 ) (H.[1988])
have had th e opportunity o f reading i n draft, I to o would dismiss the A
appeal and allow the cross-appeal.
Appeal dismissed and cross-appeal
allowed.
Order of Court of Appeal of 31 July
1987, as amended on 11 August
1987, set aside save as to costs. ^
Cause remitted to Webster J. to
determine admissibility ofdisputed
documents in accordance with
speeches delivered; original appeal
dismissed.
Interveners to pay defendants' costs Q
in House of Lords. Costs of
proceedings on intervention before
Webster J. to remain at his discre-
tion.
Solicitors: Cameron Markby; Allen & Overy; Clyde & Co.; Linklaters
& Paines. D
M. G.
F
353354Annex 19: Westminster City Council v. Government of the Islamic Republic of Iran
[1986] 1 WLR 979.
355Annex 19
356Annex 19
357Annex 19
358Annex 19
359360Annex 20: Controller and Auditor-General v. Sir Ronald Davison [1996] 2 NZLR
278.
361Annex 20
362Annex 20
363Annex 20
364Annex 20
365Annex 20
366Annex 20
367Annex 20
368Annex 20
369Annex 20
370Annex 20
371372Annex 21: Precision Data Holdings Ltd v. Wills (1991) 173 CLR 167.
373Annex 21
374Annex 21
375Annex 21
376Annex 21
377Annex 21
378Annex 21
379380Annex 22: Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous
Workers’Union of Australia (1987) 163 CLR 656.
381Annex 22
382Annex 22
383Annex 22
384Annex 23: Attorney-General (Commonwealth) v. Alinta Ltd (2008) 233 CLR 542.
385Annex 23
386Annex 23
387Annex 23
388Annex 23
389Annex 23
390Annex 23
391Annex 23
392Annex 23
393Annex 23
394Annex 23
395Annex 23
396Annex 23
397Annex 23
398Annex 23
399Annex 23
400Annex 23
401Annex 23
402Annex 24: R v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd
(1970) 123 CLR 361.
403Annex 24
404Annex 24
405Annex 24
406Annex 24
407Annex 24
408Annex 24
409Annex 24
410Annex 24
411Annex 24
412Annex 25: Grollo v. Palmer (1995) 184 CLR 348.
413Annex 25
414Annex 25
415Annex 25
416Annex 25
417Annex 25
418Annex 26: Love v. Attorney-General (NSW) (1990) 169 CLR 307.
419Annex 26
420Annex 26
421Annex 26
422Annex 26
423Annex 26
424Annex 27: Rose v. The King [1947] 88 CCC 114.
425Annex 27
426Annex 28: Fayed v. Al-Tajir [1988] 1 QB 712.
712
GlidewellL.J. D.P.P. v . Richards (D.C.) [1988]
right, even though they have arrived a t court i n th e first place, to A
disregard tha t and t o leave a s this defendant did. Sectio n 7(2) i s there t o
deal with such cases.
FRENCHJ . I agree.
Appeal dismissed.
Solicitors: Crown Prosecution Service, Manchester; Treasury Solicitor.
[Reported by BARBARA SCULLY, Barrister-at-Law]
C
[COURT OF APPEAL] Q
FAYED v . AL-TAJIR
[1983 F. No. 596]
1986 Dec. 9 , 10, 11, 15; Kerr, Croom-Johnson and Mustill L.JJ.
1987 Feb. 1 9 E
Conflict of Laws—Sovereign immunity—Diplomatic immunity—
Embassy internal memorandum—Memorandum severely critical of
plaintiff—Action by plaintiff fordamages forlibel—Memorandum
disclosed on discovery—Whether memorandum protected by
absolute privilege
The defendant was a former ambassador of a friendly foreign F
state. At the material time h e was not a n accredited diplomat,
but he was regarded by the embassy staff and by his government
as having authority. He was subsequently re-appointed ambassa-
dor. His name was subscribed t o a n internal embassy
memorandum, which was later admitted t o have been sent o n
his orders, although not written or sent by himself, addressed to
the counsellor a t th e embassy. The memorandum pointed out „
the counsellor's misconduct i n granting th e plaintiff embassy "
concessions and informed him of his transfer to another post. I t
was severely critical o f th e plaintiff. Th e plaintiff brought a n
action claiming damage s for libel allegedly contained i n th e
memorandum, alleging publication to, inter alios, th e charge"
d'affaires a t th e embassy and t o th e country's foreign
affairs ministry. The defendant accepte d responsibility for th e
memorandum and pleaded diplomatic immunity, but purported H
to waive the immunity for th e action. H e also pleaded that the
memorandum was the subject of absolute privilege. The judge
held that there had been n o publication outside th e embassy,
accepted the plea of absolute privilege and dismissed the action.
427Annex 28
713
1 Q.B. Fayed v . Al-Tajir (C.A.)
A O n appeal by the plaintiff:—
Held, dismissing the appeal, tha t where an action was based
on th e contents and publication o f a n embassy document th e
court faced conflicting aspects o f public policy, namely, th e
need to confine t o a minimum curtailmen t of a litigant' s right
to seek redress for a wrong committed in England and the need
to confine to a minimum meddling by the court in the affairs of
a foreign sovereign; tha t normally th e latte r aspect should
B prevail unless th e circumstances of a particular case warranted
its disregard (post, pp. 730F-H, 731A-B); tha t th e concept o f
international comity and inviolability o f diplomatic documents
led t o th e conclusion that th e dispute was not justiciable i n
English courts; and that, accordingly, the judge had rightly held
that the memorandum was protected by absolute privilege (post,
pp. 732G-H, 733E-F , 735B-E).
P Chatterton v. Secretary of State for India in Council [1895] 2
Q.B. 189, C.A. and Rose v. The King [1947] 3 D.L.R. 618
considered.
Per Kerr L.J . The waive r o f th e immunity from suit o f
the defendant did not destroy th e claim for immunit y o f
the document, since tha t was justified b y the character o f th e
document, irrespective o f th e defendant's submission t o th e
court's jurisdiction against him personally (post, 737B-C).
D Decision o f Stocker L.J., sittin g as an additional judge o f
the Queen's Bench Division, affirmed.
The following cases are referred to in the judgments:
Anderson v. Hamilton (Note) (1816) 8 Price 244
E Buttes Gas and Oil Co. v . Hammer [1982] A.C. 888; [1981] 3 W.L.R. 787;
[1981] 3 All E.R. 616, H.L.(E.)
Chatterton v. Secretary of State for India in Council [1895] 2 Q.B. 189, C.A.
Congreso del Partido, 1 [1983] 1 A.C. 244; [1981] 3 W.L.R. 328; [1981] 2
All E.R. 1064, H.L.(E.)
Dickinson v. Del Solar [1930] 1 K.B. 376
F Gibbons v. Duffell (1932) 47 C.L.R. 520
Hart v. Gumpach (1872 ) L.R. 4 P.C . 439, P.C.
Hasselblad (G.B.) Ltd. v. Orbinson [1985] Q.B. 475 ; [1985] 2 W.L.R. 1 ;
[1985] 1 All E.R. 173, C.A.
Home v. Lord Bentinck (1820) 2 Brod. & B. 130
Isaacs (M.) and Sons Ltd. v. Cook [1925] 2 K.B. 391
Jackson v. Magrath (1947) 75 C.L.R. 293
G Merricks v. Nott-Bower [1965] 1 Q.B. 57; [1964] 2 W.L.R. 702 ; [1964] 1
All E.R. 717, C.A.
Peerless Bakery Ltd. v. Watts [1955] N.Z.L.R. 339
Reg. v. Lewes Justices,Ex parteSecretary of State for the Home Department
[1973] A.C. 388; [1972] 3 W.L.R. 279; [1972] 2 All E.R. 1057, H.L.(E.)
Richards v. Naum [1967] 1 Q.B. 620; [1966] 3 W.L.R. 1113; [1966] 3
All E.R. 812, C.A.
H Rose v . The King [1947] 3 D.L.R. 618
Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson
[1892] 1 Q.B. 431, C.A.
Szalatnay-Stacho v. Fink (1945 ) 174 L.T. 191; [1947] K.B. 1 ; [1946] 2
All E.R. 231, C.A.
428 Annex 28
714
Fayed . Al-Tajir (C.A.)[1988]
The following additional cases were cii argument: A
Alcorn Ltd. v. Republic of Colombia [1984] A.C. 580; [1984] 2 W.L.R. 750;
[1984] 2 All E.R. 6, H.L.(E.)
Baccus S.R.L. v . Servicio Nacional del Trigo [1957] 1 Q.B. 438; [1956] 3
W.L.R. 948; [1956] 3 All E.R. 715, C.A.
Empresa Exportadora de Azucar v. Industria Azucarera Nacional S.A.
[1983] 2 Lloyd's Rep. 171, C.A.
Empson v. Smith [1966] 1 Q.B. 426; [1965] 3 W.L.R. 380; [1965] 2 All E.R.
881,C.A.
Mellenger v. New Brunswick Development Corporation [1971] 1 W.L.R.
604;[1971] 2 All E.R. 593, C.A.
Reg. v. Madan [1961] 2 Q.B. 1 ; [1961] 2 W.L.R. 231; [1961] 2 All E.R.
588,CCA.
Sengupta v. Republic of India [1983] I.C.R. 221 , E.A.T.
C
APPEAL from Stocker L.J., sitting a s a n additional judge o f the
Queen's Bench Division.
On 3 May 1983 th e plaintiff, Mr. Muhammed Fayed, issued a writ
seeking damages for libel containd in a memorandum dated 7 September
1982 which was published, or caused to be published by the defendant,
Mr. Mohammed Mahdi al-Tajir, t o Mr. Nabil Hijazi who was counsellor ^
at th e Embassy of the United Arab Emirates. The defendant was th e
head o f th e embassy a t th e time pending his re-appointment a s th e
ambassador. Copie s o f the memorandum were sent t o the charge"
d'affaires and the foreign affairs ministry of the Emirates. The defendant,
in his defence, pleaded that h e had diplomatic status but state d that h e
waived i t for th e present proceedings. H e als o pleade d that th e
memorandum, being an internal document of the embassy of his country, E
was privileged. However, th e memorandum was disclosed on discovery
in the proceedings.
Stocker L.J. dismissed the action holding that th e memorandum was
protected by absolute privilege.
By a notice of appeal dated 1 4 March 1986 the plaintiff appealed on
the grounds, inte r alia, that (1) th e judge erred i n law in holding that
the communication by the defendant of the words complained of to Mr.
Nabil Hijazi was protected by absolute privilege, the sole reason why he
did not give judgment for th eplaintiff; (2) the judge erred i n apparently
holding, for the first time, that th e class of absolute privilege applied by
the Court o f Appeal i n Chatterton v. Secretary of State for India in
Council [1895] 2 Q.B. 189, 190, 192-193, t o "officers of state" and t o
communications "relating t o matters o f state," i n the contex t o f th e
British Crown, would extend t o cover communication s between th e
diplomats or other servants o f a foreign state, that being th e only class
of absolute privilege relied upon b y the defendant; (3) i n particular, the
judge erred i n law in apparently treating th e memorandum complained
of in that action a s a communication "relating t o matters of state" an d
the individuals concerned, the defendant and Mr. Nabil Hijazi, a s being
"officers of state " within the Chatterton principle; (4) whether o r not
absolute privilege should b e s o extended was a question bes t left t o
Parliament, in the absence of any case law directly in point, particularly
in view of the foreign policy implications which would in effect require r-""
429Annex 28
715
1 Q.B. Fayed v . Al-Tajir (C.A.)
A t o b e assessed d e novo; (5) i n any event, even if, contrary t o th e
plaintiffs submissions, communications passing between the ambassador
of a friendly foreig n stat e and one o f the senior embassy officials
ordinarily did require t o be protected by absolute privilege, th e judge
erred on the facts before him i n upholding the defence because a t the
time the memorandu m was published th e defendant, i t was conceded,
was neither the ambassador nor accredited t o the Court of St. James i n
° an y other capacity ; (6) th e appropriate tes t t o apply i n deciding
whether t o extend th e Chatterton principle was whether ther e were
"overwhelmingly strong reasons o f public policy" which rendere d i t
necessary so to do: Gibbons v. Duffell (1932 ) 47 C.L.R. 520, 534, and
thus the judge erred i n holding that there was such a necessity for the
hitherto very limited and special protectio n of absolute privilege in the
Q circumstances confronting him; (7) i n particular, no such necessity could
be demonstrated i n circumstances where (a) qualified privileg e would
ordinarily attach t o official embassy documents and (b) th e authors o f
such documents would b e protected b y diplomatic immunity from suit
arising under th e Vienna Convention, a s embodied i n the Diplomatic
Privileges Act 1964, which the instant case the sovereign state concerned
had chosen t o waive; (8) th e judge further failed t o take an y o r any
D sufficient account o f th e following considerations: (a) th e principle
described b y Lopes L.J . i n Royal Aquarium and Summer and Winter
Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431, 451, t o the effect
that "[absolute privilege] seem s rather t o attac h t o the person o r
character o f th e person writing o r speaking the defamatory matter ,
whereas [qualified privilege] to the occasion when the defamatory matter
£ i s written or spoken," (b) th e doubts expressed by the Court o f Appeal
in Szalatnay-Stacho v. Fink [1947] K.B. 1 and Richard v. Naum [1967] 1
Q.B. 620 as to whether the absolute privilege enjoyed by communications
relating to matters of state would extend to documents published by the
officil o f foreign governments, (c) th e unchallenged evidence o f Mr.
Nabil Hijazi that i t would not have been within th e scope o f th e
defendant's authority , even i f he had been ambassador a t the material
F time, t o order Mr. Hijazi's transfer back t o the United Arab Emirates ,
which purported t o be the object o f the memorandum complained of;
and (9) th e judge misdirected himself a s to the effect o f the passages
cited from the speech of Lord Wilberforce in Buttes Gas and Oil Co. v.
Hammer [1932] A.C. 888, 930-932. Those related to the entirely separate
question of jurisdiction t o review th e transactions o f sovereign states ,
Q whic h was so remote from th e present issue of absolute privilege a s to
afford no guidance one way o r the other and i n the present case i t was
not disputed that th e judge had jurisdiction t o determine th e issues in
accordance with English law.
By a respondent' s notice the defendant sought t o have th e judge's
judgment affirmed on the grounds, inter alia, that (1) if, contrary t o the
judge's decision and t o the defendant's submissions, th e public interest
H o f the United Kingdom did not require that absolute privilege should be
attached to the communication of the words complained of to Mr. Nabil
Hijazi, absolute privilege shoudl nonetheless attach to that communication
as an aspect o f the state immunity which was enjoye d b y the United
430 Annex 28
716
Fayed v. Al-Tajir (C.[1988]
Arab Emirates in respect of all documents and archives of its embassy in \
the United Kingdom and i n particular communications emanating from
that embassy concerning the employment of the officers of that embassy
and the absolute privilege claimed in the defence survived the waiver of
the diplomatic immunity on whichever of those two bases that privilege
was properly to be founded; and (2) if, as was the plaintiffs submission,
only a qualified privilege were t o be attached t o the communication of
the words complained o f t o Mr. Nabil Hijazi , that privileg e would b e"
defeasible upon proof o f malice ye t a n inquiry a s to th e presence o r
absence of malice would involve a n examination of the motives of the
United Arab Emirates i n the person of its officers in effecting Mr. Nabil
Hijazi's transfer from its embass y i n London t o its foreign affairs
ministry in Abu Dhabi and that was not a n inquiry on which a United
Kingdom court should embark. Q
The facts are set out i n the judgment of Mustill L.J.
David Eady Q.C. and Stephen Suttle for the plaintiff. The scope o f
absolute privilege as a defence in defamation actions has been stated a s
the privilege attached "to communication s a t th e highest level o f
government and civil service, but i t i s uncertain how far down th e ^
official scale the protection extends:" Duncan and Neil on Defamation,
2nd ed. (1983), para. 13.29, p . 88. Inhatterton v. Secretary of State for
India in Council [1895] 2 Q.B. 189, 191-192, 194, th e Court of Appeal
held that a communication from th e Secretary of State for India t o the
Parliamentary Under Secretary for India, i.e. from one government
minister to another, was protecte d by absolute privilege see alsoFraser
on Libel and Slander (Law and Practice), 7th ed. (1936), p . 127. Here, E
the defendant and Mr. Nabil Hijaz i were not "officers o f state" within
the Chatterton principle nor was th e memorandum a communication
"relating to matters of state."
Absolute privilege cannot exten d t o officer s o f state and t o
communications relating t o matters o f state between th e diplomats o r
other servants of a foreign state. M.Isaacs and Sons Ltd. v. Cook [1925]
2 K.B. 391 has been the only authority where a communication made by
the High Commissione r o f Australia i n th e United Kingdom t o th e
Prime Minister of Australia under th e High Commissioner Act 1909 of
the Commonwealth o f Australia was held t o be protected b y absolute
privilege. But since that case was decide d befor e th e Statute o f
Westminster 1931 and th e Diplomatic Immunities (Commonwealth
Countries and Republic o f Ireland) Act 1952 i t should no w b e G
distinguished. In Szalatnay-Stacho v. Fink [1947] K.B. 1 and Richards v.
Naum [1967] 1 Q.B. 620 the Court of Appeal declined to afford absolute
privilege to communications between the officials of foreign governments
relating to matters o f state. [Reference was mad e to Hart v. Gumpach
(1872) L.R. 4 P.C. 439.]
The defendant here, b y invoking privilege, is seeking an extension of
the Chatterton principle s o wide that only Parliament ought t o effect it.
In any case, absolute immunity requires "overwhelmingly strong reasons
of public policy:" Gibbons v. Duffell (1932 ) 47 C.L.R. 520, 534. There
was no necessity, whether resulting from public policy or otherwise, for
431Annex 28
717
1 Q.B. Fayed v . Al-Tajir (C.A. )
A a n extension o f absolute privilege t o the memorandum complained of.
Protection would have been available to the defendant under articles 3 1
and 32 of th e Vienna Convention o n Diplomatic Relations, which was
given the force o f law by Parliament i n section 2(1) of the Diplomatic
Privilege Act 1964, b y means o f diplomatic immunity and b y qualified
privilege, subject to malice. [Reference was made to Jackson v. Magrath
(1947) 75 C.L.R. 293.] Th e absolute privilege would run counter t o the
B Act o f 1964. If foreign diplomats ar e to be accorded the strict privilege
so that ther e would b e no remedy eve n in cases of express malice o r
abuse that would involve fundamental issues of foreign policy and would
best be left to Parliament.
Moreover, the defendant here lacked th e official status in making the
publication complained o f and absolut e privilege i s attached t o the
Q person o r character o f th e person writing o r speaking th e defamatory
matter: Lopes L.J . in Royal Aquarium and Summer and Winter Garden
Society Ltd. v. Parkinson [1892] 1 Q.B. 431, 451.
The judge observed that h e was influenced b y parts o f Lord
Wilberforce's speech in Buttes Gas and Oil Co. v. Hammer [1982] A.C.
888,930-932. But Lord Wilberforce was considering an entirely separate
principle, namely th e unwillingness of the English courts t o adjudicate
D o n the transactions of foreign sovereign states.
"Immunity" in the Act o f 1964 i s to b e contrasted with th e ter m
"inviolable." The former connotes immunity from suit which relates only
to persons. The latte r is used to cover physical inviolability, that is, th e
host state will not, through any o f its agencies "break in upon" archives,
correspondence and such like: Anderson v. Hamilton (Note) (1816 ) 8
g Price 244. However, diplomats ar e protected both by physical inviolability
(see article 2 9 of th e Vienna Convention ) and b y immunity from suit:
see article 30. Documents need, and are given, only physica l inviolability.
The Convention does not mak e it unlawful to sue i n respect o f words
contained i n an embassy document nor t o make reference t o words in
such a document i n any legal proceedings. Documents o f state can b e
protected also b y public interest immunity from subpoena o r discovery:
F Chatterton v . Secretary of State for India in Council [1895] 2 Q.B. 189,
applying Anderson v. Hamilton (Note), 8 Price 244, and Home v. Lord
Bentinck (1820) 2 Brod. & B . 130. But neither o f these principle s is
relevant, since publication was admitted.
No aspect o f sovereign o r state immunity i s involved here . The
action has not been brought against the state. Ther e is no question of an
Q act o f state in the sense of Buttes Gas and Oil Co. v. Hammer [1982]
A.C. 888 and Empresa Exportadora de Azucar v. Industria Azucarera
Nacional S.A. [1983] 2 Lloyd's Rep. 171. [Reference was mad e t o
Dickinson v. De Solar [1930] 1 K.B. 376, 381.]
If, however, state immunity does arise i n the instan t case under
section 2(3) of th e Act o f 1964 th e waiver i s an intervention b y the
United Arab Emirate s i n these proceedings. Section 2 o f th e State
H Immunity Act 1978 does not exemp t such intervention. Thus i t would
constitute a submissio n t o the court. I t i s impossible t o construe
"intervention" as referring to a party , since parties d o not "intervene. "
[Reference was made to Baccus S.R.L. v. Servicio Nacional del Trigo
432 Annex 28
718
Fayed v. Al-Tajir (C.A[1988]
[1957] 1 Q.B. 438; Reg. v. Madan [1961] 2 Q.B. 1 and Empson v. Smith A
[1966] 1 Q.B. 426.] Thus th e only question here i s whether ther e
extends t o th e defendant, i n respect o f his admitted publication, a
defence of absolute privilege b y reason o f some imperative of English
public policy.
E. C. Evans-Lombe Q.C., Geoffrey Shaw and Lady Hazel Fox for
the defendant. The classes o f documents and types o f circumstances are
not closed where th e English courts will afford absolut e privilege o n "
grounds of public policy: Merricks v. Nott-Bower [1965] 1 Q.B. 57, 73,
and Hasselblad (G.B.) Ltd. v. Orbinson [1985] Q.B. 475. [Referenc e
was made to Reg. v. Lewes Justices, Ex parte Secretary of State for the
Home Department [1973] A.C. 388.] The limits of privilege are different:
M. Isaacs and Sons Ltd. v . Cook [1925] 2 K.B. 391 and Gibbons v .
Duffell (1932) 4 7 C.L.R . 520. [Reference was mad e t o Anderson v. Q
Hamilton (Note), 8 Price 244.] Acts o f an official of a foreign embassy
should be considered acts of the foreign government: Mellenger v . New
Brunswick Development Corporation [1971] 1 W.L.R . 604. [Reference
was made t o Peerless Bakery Ltd. v. Watts [1955] N.Z.L.R. 339 a s an
example of the application of Chatterton v. Secretary of State for India in
Council [1895] 2 Q.B. 189 an d Alcorn Ltd. v. Republic of Columbia
[1984] A.C. 580.] D
An embassy document which is made public by an act of an embassy
official is not covered b y diplomatic o r stat e immunity. I f that i s not
correct then the judge was right i n holding that th e memorandum her e
was inter-departmental documen t which deal t with the transfer o f a n
officialf the embassy back to his own country. As such the memorandum
was a record o f a public act o f a foreign sovereign acting within it s £
sovereign powers: Sengupta v. Republic of India [1983] I.C.R. 221. Even
though the document in the instant case was mad e in West Germany i t
was signed on behalf of the defendant and though the defendant a t the
time was not formally appointed a s the ambassador, h e was treated as
such b y his country. The plaintiff onl y came t o know about th e
memorandum because it was disclosed to him by the person to whom it
was addressed. The memorandum thus i s a diplomatic document: Rose F
v. The King [1947] 3 D.L.R. 618. Under section 1 of the State Immunity
Act 1978 a foreign sovereign state's immunity extends to such documents
and they are immune from the jurisdiction of the English courts by rules
of international law and comity which form par t o fthe English law:
Halsbury's Laws of England, 4th ed., vol. 1 8 (1977), para. 1548, p. 794.
The Act o f 1978 does not withdraw such immunity: sections 6 and Q
16(1)(6).
Accordingly, unless the United Arab Emirate s waive its immunity in
respect of the memorandum an action for libel founded o n it cannot be
brought in English courts. Here, there i s no waiver by the Emirates.
The plaintiff seems to be accepting that the memorandum came into
existence in the circumstances of qualified privilege. A defence plea o f
such a privilege could have been answered with a plea of malice. In such "
a situation the court would have had t o investigate the defendant's
motives in dismissing Mr. Nabil Hijazi from his post and his transfer.
That would have amounted t o an investigation into the motive s of an
433Annex 28
719
1 Q.B. Fayed v . Al-Tajir (C.A.)
A officer o f th e Emirates i n the exercise of the sovereign power o f that
state. Th e English courts d o not embark upo n such a n investigation
Buttes Gas and Oil Co. v. Hammer [1982] A.C. 888 . This supports th e
judge's view that th e memorandum should b e given th e protection of
absolute privilege.
Eady Q.C. replied.
Cur. adv. vult.
19 February. The following judgments were handed down.
MUSTILL L.J . This curiou s case springs from a dispute withi n th e
London Embassy of the United Arab Emirates.
C Th e defendant is Mr. Muhammed Mahdi al-Tajir. For some year s he
was ambassador of the United Arab Emirate s ("the Emirates" ) t o the
Court of St. James . The Emirates ar e a federation o f Arab states, one
of which is the Emirate o f Dubai. At the material time, H . H . Sheikh
Rashid was ruler o f Dubai and vice-president o f the Emirates. During
August 1982 the defendant resigne d as ambassador of the Emirates i n
T-JLondon, for reasons whic h suggest that i t was contemplated throughout
that in due course h e would resume his office. For about th e next 12
months he continued to concern himself with the affairs of the Emirates
in two ways. First, h e maintained his position a s adviserto the ruler of
Dubai, a role which h e had performed for many years. Second, h e
appears to have acted for internal purposes a s de facto head of mission.
During this period ther e was n o person occupying th e office o f
E ambassador. Although, upo n the defendant's resignation as ambassador,
he ceased to be on the list of those recognised as diplomats accredited to
the Court of St. James, his status was such that, in the words of the trial
judge, he was regarded both b y the foreign ministry in the United Ara b
Emirates and by the staff at the embassy in London as having authority.
On 15 November 1983 the defendant was re-appointed as ambassador in
London, and h e continued to hold that post until November 1986, when
F he once more resigned : a n event which occurred after th e trial o f th e
present action but before th e argument of the appeal.
During the interregnum between th e resignation of the defendant in
August 1982 an d his re-appointment i n November 1983 ther e was n o
ambassador in post. Th e senior official in the embassy and formal chef
de mission was Mr. Mirza al-Sayegh, th e charge" d'affaires. The second
G i n command was th e counsellor, Mr. Nabil Hijazi. The third secretary
was Mr. Al Hashimi.
The plaintiff, Mr. Muhammed Fayed , i s a businessman with
substantial interests i n the United Kingdom. H e had for a number o f
years been prominent i n the affairs o f the Emirates , and had been o n
close terms with the defendant. One o f the fruits of this relationship had
been the procurement by the defendant on his behalf of certain privileges
" a t Heathrow Airport, notably concerning the use o f the V.I.P. lounge ,
and access for his limousines to various restricted areas. These privileges
had been renewe d for him from year t o year through the intermediacy
of Mr. Nabil Hijazi.
434 Annex 28
720
Mustill L.JFayed v . Al-Tajir (C.A.[1988]
In course o f time th e relationship between th e plaintiff and th e A
defendant took a turn for th e worse: s o much so that o n 7 September
1982,during th e interval between the resignation o f th e defendant a s
ambassador and his subsequen t re-appointment, a memorandum came
into existence in terms sharply critical of theaintiff. I return a t a later
stage to the circumstances in which this document came to be written. It
is sufficient for present purposes t o say that i t was addressed t o Mr.
Nabil Hijazi (the counsellor), wit h copies t o Mr. Mirza al-Sayegh (the ^
charge" d'affaires) and to the ministry of foreign affairs i n Abu Dhabi.
The document was subscribed with the word "ambassador" followed by
the Arabic equivalent o f "per pro," then th e signature o f Mirza al -
Sayegh, and finally the name of the defendant.
Since this memorandum is the document in suit in the present action
I must set out its text i n full. In translation, it read:
"EMBASSY OF THE UNITED ARAB EMIRATES
"Inter-departmental memorandum
"From: H.E. Th e Ambassador
"To: Counsellor Nabil Hijazi
"Ref:
"Date 7/9/1982 D
"Greetings,
"I was dismayed t o learn that you have contacted th e airpor t
authorities for th e purpose o f granting Mr. Muhammed Fayed tw o
passes to enter Heathrow Airpor t i n his car i n the name o f th e
embassy. I was extremely annoyed t o receive such a report a s I
have personally warned you o f th e consequences o f having any
dealings with that person under the name of the embassy. You have E
promised to cancel all the arrangements made by the embassy in his
favour. You mad e that promis e several weeks ago i n the presenc e
of Mr. Mirza Al-Sayegh. However, this has not been fulfilled. I was
surprised t o lear n from m y colleagues i n th e embassy that Mr.
Fayed started t o use the V.I.P. lounge a t the airport impersonating
the identity of the adviser of Sheikh Zayed. In addition he used two p
car passes. This has caused great embarassmen t t o me and t o the
embassy staff, as it happened without thei r knowledge. The matter
has come to the notice of the British Foreign Office and also to the
notice of the ministr y of foreign affairs i n Abu Dhabi. W e have
rectified the situation by withdrawing the above status and cancelling
the tickets. You ar e well aware of the outcome i f Mr. Fayed had
managed to enter prohibited goods into this country using the above G
capacity and i n the name o f the embassy. This could hav e caused
deterioration i n th e relationship between th e embass y an d the
authorities concerned, relationships which we were able to strengthen
since the establishment of this embassy till the present, let alone the
deterioration o f th e relationship between the embassy and H.H.
Sheikh Zayed a s a result o f impersonating th e identity o f the
adviser of His Highness by an unknown person. "
"Therefore, I have decided t o transfer you t o the head office of
the ministry of foreign affairs i n Abu Dhabi, referring the whol e
matter to the ministry to take whatever action they deem necessary.
435Annex 28
721
1 Q.B. Fayed v . Al-Tajir (C.A.Mustill L.J.
A I have informed th e departments concerned i n th e embassy that
your diplomatic status has now been withdrawn and instructed them
to claim any possessions under your charge which ar e the property
of the embassy, such as the car and the house leased for your use.
"This takes effect from today's date.
"I have also notifed the British Foreign Office of this action.
"Finally, would you please accept m y sincere thanks and
° appreciation o f your previous service in this embassy which I hope
will continue in the ministry of foreign affairs in the future,
"Ambassador
"p.p. (Signature)
"Mahdi Al-Tajir
^ "Copy t o Mr. Mirza Sayegh, Charge d'Affairs t o put this into
effect and then take full charge o f the responsibilities of Mr. Nabil
Hijazi.
"Copy t o th e ministr y o f foreign affairs i n Abu Dhabi t o
complete the arrangements o f transfer i n accordance with normal
procedure."
As contemplated b y its terms, this documen t was delivered t o and
read by Mr. Nabil Hijazi, and als o by certain officials in the ministry at
Abu Dhabi. This led t o th e temporary recall o f Mr. Nabil Hijazi for
discussions, but ultimately h e returned t o his post a s counsellor i n
London. Meanwhile, Mr. Nabil Hijazi has show n the memorandum t o
the plaintiff. His motives for doing so were controversial, but there is no
E suggestion that his act was th e consequence of any express authorisation
by the defendant or anyone else.
On 3 May 1983, th e plaintiff issued the writ i n the presen t action,
claiming damages for libel contained i n the memorandum, and alleging
publication to Mr. Nabil Hijazi. A n injunction was also claimed. Th e
writ was followed on 27 May 1983 by a statement o f claim also alleging
that the defendant wrote and published th e letter t o Mr. Nabil Hijazi or
F caused i t to be so written and published. I t was pleaded that th e plain
and ordinary meaning of the words was that:
"(i) Th e plaintiff had obtained two passes t o enter Heathrow
Airport in his car under false pretences , that is to say by pretending
to be acting on behalf of the embassy of the United Arab Emirates.
(ii) The plaintiff had impersonated th e identity of an adviser Sheikh
G Zaye d in the V.I.P. loung e at Heathrow Airport, (iii) The plaintiff
had been using these devices with a view t o importing unlawfully
prohibited goods into the United Kingdom."
Next, o n 28 June the defendant swore an affidavit setting out that he
had in the past resigned as ambassador, but that his re-appointment was
awaiting confirmation from the United Kingdom authorities. He went on
H t o summarise his relationship with the ruler. He concluded:
"10. I t will b e observed from the statement o f claim that the
plaintiff complains o f a document purporting t o b e a n inter-
departmental memorandum published within the [United Arab
436 Annex 28
722
Mustil) L.J.Fayed v . Al-Tajir (C.A.[1988]
Emirates] embassy and dated 1 September 1982. A t that date I was A
no longer ambassador and had left th e country the previous month
to return t o Dubai, and I was a t that time visiting Germany with
H.H. Sheikh Rashid who was undergoing medical treatmen t i n
Baden Baden. I neither wrote nor signed th e memorandum. I hav e
no knowledge of the circumstances in which it came to be written.
"11.I a m advised that, sinc e I have arrived i n this country t o
take up my appointment as ambassador, th e Foreign Office having ^
been notified of my appointment, I am immune from the jurisdiction
of this court . . .
"13. I n any event i t is my respectful submission tha t this . . .
court should decline to investigate in these libel proceedings o r at
all an internal communication made withi n a foreign embassy. I f
there are t o b e proceedings i n respect o f such a communication, Q
then in my respectful submission they would b e more conveniently
dealt with, with less oppressive consequences for me, i n the courts
of Dubai where, so my solicitors advise me having made inquiries of
their own, civil remedies for falsehoods and penal provisions for
defamation exist, i n addition t o th e remedies available vi a th e
Sharia o r religiou s law where a person's reputation has been
injured." D
This affidavit was followed b y a n application t o a Queen's Bench
master for an order to set aside service on the ground:
"the defendant having been out o f jurisdiction when th e writ was
issued and/or serving and striking out th e endorsement on the writ
and/or th e statement o f claim and/or dismissing o r staying this
action, upon th e grounds that th e defendant i s immune from th e ^
jurisdiction of this . . . court and/or that t is oppressive for this
action t o b e brought i n England when i t would b e deal t with
conveniently by a court i n the United Arab Emirates and/or that
the content and circumstances o f publication o f the memorandum
complained of in this action ar e such that its author i s protected by
an absolute privilege and/or that this . . . court cannot o r should not
inquire into it, should be dismissed."
The application was dismissed on 11 July 1983, and although a notice
of appeal was lodged, i t appears that this was never proceeded with.
One month later th e defendant's reinstatement a s ambassador became
effective.
The next step took place during January 1984, when a defence was Q
served, denying that the defendant had written o r published or caused to
be written or published the letter in question. The pleading concluded:
"6. Further o r in the alternative, th e document reproduced i n
paragraph 1 of the statement o f claim appears on its face to be an
inter-departmental memorandum o f th e embassy o f th e United
Arab Emirates. Communications relating t o matters of state, made
by one officer o f stat e t o another, ar e absolutely privileged and"
cannot be made the subject of an action for libel.
"7. The defendant was th e ambassador o f the United Arab
Emirates to the Court o f St. James until 1 August 1982, and since
437Annex 28
723
1 Q.B. Fayed v . AI-Tajir (C.AMustill L.J.
A his re-appointment i n 1983 is again th e ambassador of the United
Arab Emirates. For th e avoidance of doubt, and for th e purpose of
this action only, h e hereby expressly waives any claim o f his t o
diplomatic immunity.
"8. Further o r in the further alternative , this . . . court shoul d
decline jurisdiction upon the ground that i t is not the convenient or
appropriate forum for th e resolution of this action. Each party i s a
" citizen o f th e United Arab Emirate s and ordinarily resident i n
Dubai. The plaintiffs complaint i s in respect of a document which
appears on its face t o be in his own language and t o have passed
from one fellow countryman o f his t o another, within th e embassy
of his own country. Th e Emirate o f Dubai has courts and a law o f
defamation."
C Nothin g of any materiality then happened until 1 5 November 1985,
when the plaintiff re-amended his statement of claim to allege publication
to a list o f 1 2 persons: i t i s unnecessary t o state th e details. Soon
afterwards, in response to an interrogatory the defendant deposed:
"As to Nabil Hijazi I did not send th e said memorandum to him. A
memorandum containin g th e said words was written and sent t o
D Nabil Hijazi b y Mirza Al-Sayegh Charge d'Affaires o n or about 7
September 1982. At a meeting between, inte r alia, myself and th e
said Mirza Al-Sayegh h e sought m y advice as to whether such a
memorandum should b e sent. I advised him that h e should act in
what h e considered t o b e th e best interests o f th e United Ara b
Emirates and its embass y for which, after m y resignation a s
F ambassador h e was then responsible and did not seek t o dissuade
him from his proposed course. I have therefore given instructions to
my solicitors to amend my defence so as to accept responsibility for
publication of the said memorandum to Nabil Hijazi."
There was then a consequential amendmen t t o th e defence,
maintaining the denial that th e defendant wrote o r sent th e letter , but
„ admitting that h e caused it to be sent.
Thus matters stood when the action came to trial. A substantial issue
which had t o be explored b y the judge, but which di d not arise before
us, was whether ther e was publication in the United Kingdom to any of
the persons named in the lis t added t o th e statement o f claim b y re-
amendment: fo r it was conceded that the defence o f absolute privilege
could not b e established if such wider publication occurred and was a
G natural consequence o f th e initial publication t o the addressee. I n the
event, the judge held that so far as there was any publication outside the
embassy, this was neither intended by the defendant nor th e natural and
probable consequence o f th e publication b y him t o Mr. Nabil Hijazi.
There was no appeal against this finding.
Accordingly, the issue left for decision was whether th e publication
by a person acting as ambassador although not accredited as such, to the
counsellor o f the embass y wit h a copy t o charge 1d'affaires, o f a
document concerning the conduct of the addressee in his official capacity,
and th e termination o f his posting, was actionable a t th e suit o f th e
plaintiff in the English court. The judge held that i t was not, o n the
438 Annex 28
724
Mustill L.J.Fayed v . Al-Tajir (C.A.)[1988]
ground set out in paragraph 6 of the defence—namey l that the document, A
being a communication by one officer of state to another, relatin g to a
matter of state, was th e subject o f absolute privilege and coul d not b e
made the subject of an action for libel.
On the hearing of the appeal, the arguments on both sides were cast
in wider terms than befor e th e judge. Accordingly, i t is convenient t o
begin with a survey o f the statutes and reported decisions touching o n
this branch o f th e law. These may b e arranged according t o subject
matter, as follows.
1. Th e immunity from production o f certain categories o f state
documents. It is unnecessary to enter here into th e complexities, not yet
fully resolved, of "class privilege." I t is sufficient to say tha t since th e
18th century th e courts have recognised th e nee d t o abstai n from
requiring the production o f communications addressed b y o r t o high C
officers of stat e relating t o matters withi n thei r competence. A s Lord
Ellenborough C.J. said, i n relation t o letters from the Unde r Secretary
of State for the Colonial Department to the Secretary of State, "I do not
like the breaking i n upon this correspondence:" Anderson v . Hamilton
(Note) (1816) 8 Price 244, 246.
2. The refusal by the court t o allow certain categories of documents, Q
or copies o f them , t o be proved and put i n evidence a t the trial: see
Home v. Lord Bentinck (1820 ) 2 Brod. & B . 130 and Chatterton v.
Secretary of State for India in Council [1895] 2 Q.B. 189.
3. Th e recognition, b y treating th e publication a s the subject o f
absolute privilege, that th e publication o f certain categories o f state
documents does not found a cause of action in damages. Such publication
has been referred t o as an "act o f state." Tha t documents of this kind E
may be the subject o f absolute privilege i s undoubted, and i t is clear
that th e cour t must take into accoun t th e position occupied b y th e
sender and th e recipient, and th e nature and subject matter o f th e
communication. The precise boundaries of the protection have, however,
yet to be established: contrast Chatterton v. Secretary of State for India
in Council (despatch by Secretary of State to Under Secretary concerning p
the removal o f th e plaintiff t o the half pay list); Royal Aquarium and
Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431
(oral report b y member of London County Council t o a meeting of the
council concerning th e grant of licences); M. Isaacs and Sons Ltd. v.
Cook [1925] 2 K.B. 391 (report b y Australian High Commissioner t o
Prime Minister o n commercial matters involving th e interest s o f the U
Commonwealth); Gibbons v. Duffell (1932) 4 7 C.L.R. 520 (report o n
subordinate by police inspector t o superintendent); Jackson v. Magrath
(1947) 75 C.L.R. 293; Peerless Bakery Ltd. v . Watts [1955] N.Z.L.R.
339 (communication b y Minister o f Industry and Commerc e t o the
Secretary of the Wheat Commission); Merricks v. Nott-Bower [1965] 1
Q.B. 5 7 (minute b y deputy commissioner o f police t o commissioner
regarding transfer o f senior officers); Reg. v. Lewes Justices, Ex parte H
Secretary of State for Home Department [1973] A.C. 388 (letter b y
assistant chief constable t o Gaming Board i n response t o a request for
information concerning a n application for a gaming licence) and
439Annex 28
725
1 Q.B. Fayed v . Al-Tajir (C.A.Mustill L.J.
A Hasselblad (G.B.) Ltd. v. Orbinson [1985] Q.B. 475 (letter o f complaint
to Commission of European Community).
4. The immunity from suit o f an officer of the Crown in respect of
acts done abroad otherwise than unde r colour of legal right. This also is
referred to as immunity in respect of an "act of state." I t is unnecessary
to cite the authorities since they are far from the present point.
5. The refusal of the court, save i n exceptional cases, to inquire into
" th e validity and policy of foreign municipal legislation so far as it relates
to matters done purportedly i n furtherance of such legislation within the
territory of the foreign state. This also is often referred to as an example
of "act of state." Here again, citation i s unnecessary.
6. Th e abstention b y th e court, i n certain circumstances, from
adjudication upon the act of a foreign sovereign state—at least when the
Q act i s done within the territory o f the foreign state. This doctrine , also
described as being concerned with "act of state," was discussed in Buttes
Gas and Oil Co. v. Hammer [1982] A.C. 888.
7. The refusal b y the court t o entertain any claim agains t a foreign
sovereign or state, o r a diplomatically accredited officerthereof, except
in respect of certain types of transaction, unless th e immunity is waived
by the sovereign or a person having the power t o communicate a waiver
D o n his behalf: th e State Immunity Act 1978 . This principle does not
deny the existenc e o f a cause o f action agains t the sovereign o r his
officer, but rather makes i t impossible for th e cause of action t o b e
enforced: see Dickinson v. Del Solar [1930] 1 K.B. 376, 381.
8. The recognition b y the state and b y the courts that th e person of
the foreign sovereign and his accredited officers shoul d b e protected
£ from affront: article 2 9 o f th e Vienna Conventio n o n Diplomati c
Relations, a s set out i n Schedule 1 t o th e Diplomatic Privileges Act
1964.
9. As an aspect o f the principle just stated , the recognition b y the
state and by the courts that the correspondence o f the sovereign and the
documents of his diplomatic mission touching on its functions should be
kept inviolate, in the sense that they must b e protected from harm , and
F from perusal and use without th e sovereign's consent: see for a partial
re-enactment o f this long establishe d principle o f international law ,
article 24 of the Vienna Convention.
I have divided the cases and statutes into categories t o illustrate why
in my judgment th e application of them b y analogy to a new situation
should be embarked o n with caution. Thus, the doctrine that certain
Q types o f document are invulnerable has developed over the years from a
notion that they should not b e taken out of the hands of high officers of
state, to a refusal to allow them to be given in evidence, and finally to a
ruling that such documents (or more accurately the publication of them)
are th e subject o f absolute privilege. Thes e consequences ar e not th e
same, as was pointed out b y Roche J . in M. Isaacs and Sons Ltd. v .
Cook [1925] 2 K.B. 391 , 398, and Starke J . in Gibbons v. Duffell, 4 7
H C.L.R. 520, 529. Granted, i t is usually of no moment t o either party
whether the plaintiff fails for want o fproof, or because the publication
is incapable of founding a cause of action: see the observations of Lord
Wilberforce in Buttes Gas and Oil Co. v. Hammer [1982] A.C. 888, 930,
440 Annex 28
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MustiU L.J. Fayed v . Al-Tajir (C.A. [1988]
and Starke J . i n Gibbons v . Duffell, 4 7 C.L.R. 520, 530 . But th e A
distinction may be important i n a case such a s the present, where th e
document, its contents and its publication ar e admitted in the pleadings,
and where the document is disclosed on discovery and put in evidence at
the trial without objection.
Again, ther e i s a risk that the terminolog y may prove misleading.
The types o f case identified a s items 4 , 5 and 6 above hav e all been
discussed in terms of the label "act o f state." Yet they are really quite °
unrelated, a s regards thei r effect, boundaries and underpinnings o f
policy. There is a temptation to believe, because the events wit h which
the present action is concerned were in one sense "foreign" and becaus e
they bear some resemblanc e t o th e type o f English communication
which has been characterise d a s an "act o f state" i n the passage from
Fraser on Libel and Slander (Law and Practice), 7th ed. (1936), p. 127, Q
quoted in more than one of the cases, that we are here concerned with a
"foreign act o f state." This might encourage the court t o explore th e
limits of that doctrine , such as were discussed in / Congreso del Partido
[1983] 1 A.C. 244, and trea t them a s applicable here. I n my judgment
this would be a mistake.
Furthermore, although i t is quite clear that th e protection is derived
in every one o f these case s from considerations o f public policy, i t is D
equally clear that these considerations ar e not th e same throughout.
Thus the rationale of cases such a s Chatterton v. Secretary of State for
India in Council [1895] 2 Q.B. 189, i s that th e direct interests o f the
community in the United Kingdo m demand that a n officer of a certain
status should b e able t o communicate candidly o n certain subjects
without running the risk of being brought before th e court as defendant g
or witness, and examine d o n th e accuracy o r honesty o f what h e has
written. Plainly, there i s no such direc t interes t where the documen t
passes between two persons quite unconnected with the government and
administration of the realm, on matters which are equally so unconnected.
If ther e is to be the protection now claimed b y the defendant i t must
either rest o n th e grounds o f comity which i n one shape o r another
underlie items 5 to 9 above, or on some other ground altogether. F
For these reasons I would prefer not t o venture any extension of the
principle exemplified b y Chatterton v. Secretary of State for India in
Council, to documents created within and for th e purposes of a foreign
diplomatic mission. Rather , I would look t o see whether there i s any
ground upon which immunity shoul d b e granted because th e United
Kingdom has a n interest i n conceding t o other states thos e privileges Q
which it would i n kindred circumstances wish t o b e accorded b y the
foreign state.
Before addressing this question i t i s convenient t o deal wit h four
reported cases which might be said to shed light on the present problem.
The first is Hart v. Gumpach (1872) L.R. 4 P.C. 439. The defendant
was the inspector general o f customs of the Chinese government a t a
time when a unique condominium existed after th e Treaties of Tientsin. "•
The plaintiff had bee n professor o f mathematics and astronomy a t a
college of western language and scienc e which had bee n established by
the Chinese government. The plaintiff raised a n action before a court in
441Annex 28
727
1 Q.B. Fayed v . Al-Tajir (C.A.Mustill L.J.
A China, whic h had jurisdiction over disputes between British subjects.
Amongst his complaints was an allegation that the defendant had libelled
him in a letter written t o the head of a body called the Foreign Board at
Peking. On appeal to the Privy Council against a verdict in favour of the
plaintiff it was held that the communication was a t leas t subject t o
qualified privilege. Th e Board did not, a s I understand thei r opinion,
reach a distinc t conclusion o n whether i t was als o entitled t o absolute
° privilege, there being insufficient fact s upon which to decide the question,
and since a retrial was ordered it must, I think, b e taken that a case for
absolute privilege was not made out. But this cannot i n my judgment be
regarded as any authority against the defendant i n the present case, for
the circumstance s o f trie two actions ar e quite different. The one
concerned a claim by one British subject agains t another i n respect of
Q act s done abroad, i n fulfilment of an office in a government which, s o
far as the court was concerned, was in one sense "local," and i n another
not. Here b y contrast the claim springs from dealings between foreigners
in England i n relation t o the business of a government which i s not i n
any sense local, but which has an embassy here entitled to the protection
of the English state and the English court.
Next, there was M. Isaacs and Sons Ltd. v. Cook [1925] 2 K.B. 391.
D Th e plaintiffs carried on business in London as auctioneers of fruit. Th e
defendant was High Commissioner of the Commonwealth of Australia in
the United Kingdom. I n the course of his duties h e wrote a report o n
the outcome o f sales o f Australian fruit, i n terms whic h th e plaintiffs
alleged were defamatory o f themselves. The defendant contended that
the report was absolutely privileged. The plaintiffs argued for th e
£ contrary view, primarily o n th e ground that th e matter was o f a
commercial nature and did not concern a state matter , such a s was
involved in Chatterton v. Secretary of State for India in Council [1895] 2
Q.B. 189. O n a preliminary issue, Roche J . held i n favour o f th e
defendant. I n m y judgment, there ar e two reasons why this decision
does not point t o any conclusion in the present case. First, becaus e the
question whether th e principle stated i n Fraser on Libel and Slander
F (Law and Practice), 1st ed. (1893), p.95, and adopted i n Chatterton v.
Secretary of State for India in Council [1895] 2 Q.B. 189, 191, and other
cases had an y application a t all t o a communication between persons
who were not, i n the most direct sense, officers of the Crown, does not
appear t o have been canvassed. Second, because the closenes s of th e
relationship between th e Commonwealth o f Australia and th e United
Q Kingdom involved considerations o f public policy much more immediate
than those called forth b y th e nee d t o maintain cordially reciprocal
relations with foreign states. I think it unsafe to make any assumption as
to what Roche J . would have held i f the suit had concerned th e
transactions of persons, who owed no allegiance to the Crown, regarding
the business of a foreign state.
At first sight, th e next case i n chronological sequence, namel y
" Szalatnay-Stacho v. Fink [1947] K.B. 1 , appear s much closer t o th e
present point. I t is, however, necessary to examine rather carefully what
the case actually decided. The plaintiff, a Czech national , was th e
Czechoslovak diplomatic representative i n Egypt during th e second
442 Annex 28
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MustiU L.J. Fayed v . Al-Tajir (C.A.[1988]
world war. The defendant, als o a Czech national, was th e chief military A
prosecutor of the Czech army. The defendant had received a number o f
written statements concernin g th e activities o f th e plaintiff whilst o n
diplomatic service. He forwarded these statements t o the Military Office
of the President of the Czech Republi c (in exile), with a coverin g letter
which explained that since th e plaintiff was a civilian the defendant had
no jurisdiction t o bring criminal proceedings against him, but that th e
charges made i n the statements were s o grave that h e considered it his "
duty to bring them to the attention of the President. He then went on to
enumerate sections o f th e Czech crimina l law which were alleged t o
have been contravened. Ultimately this letter cam e to the notice of the
plaintiff,who brought a n action i n libel i n the English court, t o which
the defendant responded with a plea o f absolute privilege.
At first instance, this plea was upheld. Henn-Collins J . took little Q
time to dispose of arguments that th e publication was privileged because
the dossier was an act of state, o r a step in the proceedings of a military
tribunal, so as to bring it within the protection afforded by the reported
cases. A s t o th e former, the communication did not take place a t a
sufficiently high level t o qualify a s a stat e matter, o f the kind
contemplated i n Chatterton v. Secretary of State for India in Council
[1895] 2 Q.B. 189. As to the latter, i t had nothing to do with disciplinary D
proceedings, and did not touch an y matter over which th e military
tribunal had any jurisdiction.
The judge did however give effect t o another consideration . Expert
evidence had establishe d that a n action such a s th e one before him
would be inconceivable i n Czechoslovakia, since th e defendant was a
state official and acting a s such. Having reached this point, th e judge c
continued (1945) 174 L.T. 191, 193:
"That raises th e question whether , b y the comity of nations, His
Majesty's courts shoul d extend t o communications such a s this ,
passing between Czech nationals o n Czech affairs, th e same
protection a s thei r own domestic courts would afford. I t is, o f
course, only by comity that protectio n could b e afforded, even t o _
the act s of state o f a foreign govenment , for we, here, have n o
direct interest i n th e good government o f any foreign power,
however friendly—but equally , o f course, w e hav e a n indirect
interest; and it has been indicated in Hart v. Gumpach, L.R. 4 P.C.
439,that i n some circumstances i t may b e agains t th e public
interests of this country t o entertain a suit involving a n inquiry into
reports made b y an officer in the service of a foreign state t o the G
government of that state, and that one o f those circumstances would
be the fact that such a communication would b e protected i n the
foreign state. That, a s I hav e found, i s th e case with this
communication. Is it proper in this case to apply the doctrine which
the Privy Council thought i t might be proper t o apply in the very
circumstances which have arisen here ? If the comity o f nations i s
ever to be applied, it should surely be applied where the document "
in question was published i n this country only because th e foreign
government, being our allies, were our guests while thei r unhappy
country was occupied b y our common enemy. I therefore think I
443Annex 28
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1 Q.B. Fayed v . Al-Tajir (C.A.Mustill L.J.
A ought t o apply it, and t o hold that this dossier i s absolutely
privileged."
On appeal, th e case took a rather strange course . Counsel for the
defendant expressly disclaimed th e ground of comity o n which Henn-
Collins J. had decided in his favour, and also any argument based on act
of state, th e sole ground relied upo n being that th e defendant's report
B was a step i n judicial proceedings . The Court o f Appeal rejected this
argument for very much th e same reasons a s were given i n the court
below. I t was , however, considered necessary also t o discus s th e
argument which the defendant had disclaimed. Delivering the judgment
of the court, Somervell L.J . said, at p. 11:
"Before considering this reasoning, i t is necessary, in order to deal
C with Mr. Slade's first argumen t under this issue, t o consider th e
question on somewhat wider lines . The application of the principle
of absolute privilege t o foreign official documents is one o n which
there i s little, i f any, direc t authority. The principle i n our law i s
based o n public interest , and, a s i t seems t o us, would not
necessarily apply t o corresponding foreign documents. A t th e
material time th e Czechoslovak government was in this country a s
^ our ally i n th e war. This was a n unprecedented stat e o f affairs.
Whatever may be the position in normal circumstances it may well
be that i n these circumstances th e public interest would justify th e
application t o Czechoslovak official documents o f the principle
applied to our own documents."
p Somervell L.J . then went o n t o discus s th e question whether the
document was th e first step i n criminal proceedings, an d after dealing
with this continued, at p. 12:
"Henn-Collins J . based his decision, a s w e hav e stated , o n a
different principle. Although the document was made and published
in England, he felt that h e must consider what would have been the
_ rights o f the parties if the action had come before a Czechoslovakian
court. In Hart v. Gumpach, L.R . 4 P.C. 439, the observations were
obiter and the position was, as it seems to us, essentially different.
The action was brought before Her Majesty' s Supreme Court for
China. It was between tw o British subjects, both i n the service of
the Chinese Government, and was based o n false representations
alleged to have been made b y the defendant i n his official capacity
G i n China. I n that case , therefore, everything had happened i n
China, the country whose law i t was suggested might be applied to
the documents. Here everything happened i n England. Having due
regard to the exceptional position of the Czechoslovak Government,
we do not think that th e principle of the comity of nations compels
or entitles th e courts of this country t o apply Czechoslovak law t o
acts done here, i n proceedings i n tort between Czechoslovak
citizens, that la w giving a general protection i n civil suits t o acts
done by officials, which is not afforded under our law. This would
be to make a n inroad o n a ver y fundamental principle. I f there is
to be such an application of foreign law in the circumstances set out
Q.B. 1988—30
444 Annex 28
730
MustlU L.J. Fayed v . Al-Tajir (C.A. [1988]
it would , i n our opinion, hav e t o b e expressly provided for b y A
legislation. We , therefore, decide that this document was not
absolutely privileged."
Although these passages might perhaps b e regarded a s obiter dicta
since they were dealing with a proposition which had not been advanced,
I would have thought i t right t o give effect t o them, i f they had been
directly in point. But I d o not think that they are. Th e document in suit B
here is not just a "foreign official document" but a n embassy document;
the issue i s not whether th e court should allo w to the defendant such
immunities from liability o r suit a s he would hav e enjoyed i f h e had
been sued i n his own country under his ow n law, but whether th e
litigation is of a kind upon which th e English court should engage itself
at all. This being so, I believ e thatzalatnay-Stacho v. Fink [1947] K.B. p
1, does not preclude this cour t from tackling th e present problem d e
novo.
Finally, there was Richards v. Naum [1967] 1 Q.B. 620. Th e subject
matter of th e alleged libel was a report b y a colonel i n the office o f
special investigations i n th e United States Air Force, stationed i n
England, to a general in that force, concerning the continued employment
of the plaintiff, a civilian investigative officer. I f the court had decided D
whether absolute privilege attached t o such a document, the case would
have been o f th e greatest interest. But i t did not, th e sole conclusion
expressed being that the law was insufficiently certain, and the facts and
the law s o likely t o b e intertwined, that th e issue was not one which
could appropriately b e decided a s a preliminary point. Unfortunately,
therefore, Richards v. Naum does not advance th e present discussion. p
In these circumstances, I am unable to find in any statute or decided
case a rule o f law which leads directl y t o a solution o f the issue now
before the court. Specifically, there i s to my mind nothing materia l in
the cases i n th e first thre e categories listed above, all o f which are
concerned with what may be termed "United Kingdom act of state," for
these are founded o n considerations o f public policy which have n o
bearing on the presen t case. I therefore d o not pause t o discuss th e F
questions, much pressed i n argument, whether i f this lin e of authority
had been relevant the positions occupied b y the defendant, Mr. Nabil
Hijazi and th e plaintiff, and the nature and circumstances o f th e
document and publication sued upon, were such a s to bring this action
within its scope. If there is to be immunity from liability, it must rest on
the other aspect of public policy, described briefly by the word "comity." Q
Here it seems to me that ther e are matters which provide an important
background t o any consideration o f the problem, even though not
pointing unequivocally to a solution, namely that (i) th e law of nations,
as reflected i n th e Vienna Convention treats embassy documents a s
sacrosanct, and (ii) there ar e situations in which the English court will
find i t inexpedient t o investigate th e actions o f a foreign state o r
legislature, even though they fall within its formal jurisdiction.H
Against this background, one returns t o the question: Should the
English court engage upon an inquiry as to the merits of a letter written
or caused t o b e written b y on e person exercising high supervisory
445Annex 28
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1 Q.B. Fayed v . Al-Tajir (C.A.Mustill L.J.
A functions i n a foreign embassy t o a senior official o f that embass y
concerning th e latter's continued employmen t a t the embassy, an d
raising questions as to the conduct of the plaintiff (a foreign national) in
relation to privileges obtained for him by the embassy? We are here, a s
elsewhere in this field, faced with conflicting aspects of public policy: the
need to confine to an absolute minimum any curtailment of the right of
a litigan t t o brin g a n action for recompense i n respect o f wrong
committed in England, and th e need to confine to an absolute minimum
any meddling by the English court i n the affairs of a foreign sovereign.
In general , i t would seem t o m e that th e latte r consideration shoul d
prevail, unless there is some objection in general or in the circumstances
of this particular case.
So far as concerned the general objections, the plaintiff relied on the
C following. First, that ther e was n o need t o grant absolute privilege t o
communications of this kind , since qualified privilege would furnish the
defendant with all the protectio n which i n justice he could reasonably
require. I n my view, whilst this objection might have force i f we were
considering immunity based on "act of state," it is beside the point here,
since the issues of justification and malice which would often be opened
j-ju p by a plea o f qualified privilege would requir e precisely that inquiry
into th e workings o f th e foreign embass y which (if I a m right i n th e
general approach suggested above) an English court ought to abjure.
Next, it is urged that diplomatic immunity i s sufficient to secure th e
interests of justice and t o maintain the dignity of the foreign sovereign,
and that ther e is no need to superimpose on this a doctrine which would
enable a perso n t o publish damaging material i n England without any
E cause o f action even coming into existence. I ca n see much more force
in this argument, but I must disagree. The respect owed b y one state to
the sovereign of another and t o his diplomatic representatives is allied to
but not the same as a voluntary abstention by the courts of the receiving
state from inquiring into the conduct of his embassy. A foreign sovereign
might well take the view that his dignity would b e impaired rather than
F maintained b y insisting on a personal immunity for one o f his officers in
respect of a civil suit, and I believe that i n practice such an attitude i s
nowadays by no means uncommon. But this i s not inconsistent with an
attitude o n th e part o f th e cour t that th e matter i s not ap t for
investigation, and that th e author o f an embassy document such a s the
present should b e answerable (if a t all) for what h e says only i n th e
c court s of his own country.
Allied t o the argument just discussed i s the point that whereas th e
statutes confe r o n th e diplomat, both inviolability o f person and
immunity from suit , ther e i s i n the case o f documents a n express
reference only to inviolability. I d o not find this argument convincing.
The statutes and conventions d o not form a complete cod e for th e
operation of public policy in the field of comity, as witness the various
H versions o f the doctrine of foreign act of state, all of which are creations
of the common law. I ca n see n o reason why the fact that a particular
ground of policy does not have statutor y recognition should prevent th e
court from giving it whatever weight may be thought fit.
446 Annex 28
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MustiU L.J. Fayed v . Al-Tajir (C.A.[1988]
Finally, it is contended that i f immunity is granted in circumstances A
such as these, th e net will b e cast wider than i f the subject had bee n a
communication between officers of the Crown. This i s factually correct,
in the sens e that persons o f less rank than the high officer s o f state
contemplated b y the Chatterton line o f authority would b e enabled t o
avoid liability. I d o not however regard this a s a valid objection, since
the considerations of policy are quite different, and may b e expected to
yield different results in the individual case. °
Those were the grounds upon which th e plaintiff contended that
communications of this general type were not th e subject of immunity.
There were i n addition certain aspects o f this particular case where, s o
it was argued, the court should not uphold th e pleaded defence. First, i t
was submitted that since th e document in suit has not bee n the subject
of any contested application for disclosur e and adduction i n evidence, Q
but has rather bee n disclose d voluntarily i n th e lis t o f documents,
admitted in the pleadings and put i n evidence without objection: so that
no question o f violating embass y documents can arise. This i s true
enough, but th e conduct o f th e trial has lai n i n th e hands o f th e
defendant individual, not o f th e Government o f th e Emirates. N o
renunciation by the government of its right to be free from the inspection
of its affairs by the English court (if indeed such a renunciation could be D
effective) is to be inferred merely from the fact that i t has taken no step
to intervene: and i n any event, I have not founded m y conclusion in
favour of the defendant directly o n article 24 of the Vienna Convention,
but have rather used i t a sa part o f th e general background agains t
which the considerations of public policy are to be assessed. Similarly, I
do not regard i t as conclusive that in this particular instance n o inquiry g
into the merits o f the dispute will be required, since there are n o pleas
of justification or qualified privilege; for it seems to me that the decision
by th e cour t a s t o whether o r not a n action o f this kind shoul d b e
entertained ought not t o depend o n a decision by the individual parties
as to the way in which they choose to contest it.
Equally, I d o not thin k it an answer that the defendant was not a n
ambassador at the relevant time. This would indeed have been important F
if the case were t o be assimilated to the Chatterton line of authority, for
as Lopes L.J . observed i n Royal Aquarium and Summer and Winter
Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431 , 451, that kind o f
immunity appears t o attach t o the person rather than th e character o f
the document. However, for th e reasons already stated I believe that the
reverse is true when questions o f comity are involved, and if I am right Q
in treating this a s the type o f document which the English court ought
not t o admit a s the foundation o f a suit, th e formal position o f th e
writer should not be conclusive.
For these reasons therefore I would arrive a t the same conclusion as
the judge, albei t b y a rather different route. Since th e matter i n fact
proceeded to trial I would give effect t o the conclusion by holding that
the document was subject t o absolute privilege. Whether a t an earlier "
stage the court's unwillingness to enter on the matter could have been
demonstrated by staying the proceedings need not now be discussed. (In
this connection I should mentio n that neither party contende d that the
447Annex 28
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1 Q.B. Fayed v . Al-Tajir (C.A.Mustill L.J.
A interlocutory proceedings before the master durin g 1983 had the result
of creating a n issue estoppel, or otherwise affecting the outcome o f the
trial itself).
In conclusion, I must draw attention t o the waiver o f diplomatic
immunity contained i n paragraph 7 o f the defence which had been a
source of concern in two respects, both arising from the defendant's dual
capacity as head o f th e mission (which consequent authority t o waive
° diplomatic immunity for all member s of the mission, including himself)
and as litigant (with consequent power t o determine th e shape o f th e
issues before the court). First, becaus e of the apparent inconsistenc y
between the waiver of immunity and the assertion of absolute privilege.
I say "apparent" becaus e on reflection I d o not consider that there i s
any real conflict between th e two; since although both immunities derive
Q ultimately from th e same general concept of comity, the means by which
this concept is put into effect are not indentical, and d o leave room for a
stance enabling the foreign sovereign a t th e same time t o permit his
representative to put himself formally in peril of a judgment, and ye t to
permit him also to raise a defence which will maintain the assertion that
embassy transactions are not a proper subject for inquiry.
The second ground for hesitation was the form i n which the waiver
D o f sovereign immunity was expressed. I have n o doubt that this was
inappropriate. The defence was a document formulated o n behalf of the
defendant qua individual litigant , not ambassador, and was not th e
correct vehicle for a renunciation o f the immunities belonging t o
the foreign sovereign. If my conclusion on the main issue had been that
the appeal ought t o be allowed, and judgment given for th e plaintiff, it
£ would have been for careful consideration whether th e court of its own
motion should make inquiries s o as to satisfy itself that th e defendant
did indeed have authority t o convey the waiver. In the event, however,
the waiver has n o potential effect o n the outcome o f the proceedings.
Bearing in mind that th e defendant was not a n accredited diplomat a t
the time when th e action was commenced, and that i t proceeded to trial
and judgment without any question being raised, I think i t legitimate to
F allow th e matter to rest.
For these reasons, therefore, I would dismiss th e appeal.
CROOM-JOHNSON L.J. I have read th e judgments of both Kerr and
Mustill L.JJ. I agree with them and have nothing to add.
G KERR L.J. Th e memorandum whose contents and publication form
the basis of this action for libel was i n every respect a "diplomatic" o r
"embassy" document in the sense that i t appertained t o the embassy in
this country o f a friendly sovereign state. I t was the property o f th e
embassy o r o f the foreign state. I t was a n inter-departmental
memorandum o n embassy paper addressed b y one embassy official t o
another, both acting within the course of their official duties. Publication
" o f its contents b y or on behalf of the defendant took place onl y within
the embassy and t o its ministry of foreign affairs. And th e contents of
the documen t relate d t o th e plaintiff only i n th e context o f matters
which were of concern to the embassy, t o the dignity of the state which
448 Annex 28
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Kerr L.J. Fayed v . Al-Tajir (C.A.[1988]
it represented, and t o their join t relations with H.M. Government. The A
fact that the contents may not hav e been of a high degree of importance
to the foreign state in comparison with their seriousness for the plaintiffs
reputation must b e irrelevant t o the status o f th e document a s such.
Even without each an d every o f th e attributes o f the documen t
enumerated above—and I express n o opinion about the point a t which
the line fall s t o b e drawn—there can be n o doubt that the documen t
falls within article 24 of the Vienna Convention on Diplomatic Relations ^
which provides (Schedule 1 to the Diplomatic Privileges Act 1964): "The
archives and documents o f th e mission shall b e inviolable at any time
and wherever they may be." A s Mustill L.J. said at the beginning of his
judgment, this is a curious case. It is curious that a dispute arising out of
a document o f this nature shoul d have found it s way into our courts.
Since it did, i t i s not surprising that this resulted from a curious Q
combination of circumstances. The document, or a copy of it, came into
the possession of the plaintiff. When he issued his writ , the defendant
was not the ambassador. He had been th e ambassador and knew that h e
would shortly be re-appointed. I n the interim h e exercised the authority
of head of mission internally, to the knowledge of all concerned. He had
neither written nor dictated th e memorandum. But h e had discussed the
problems reflected in its contents in the course of his position as de facto D
head of mission. H e was therefore i n a doubly ambivalent situation.
First, he was not th e author o f the memorandum. But when a n action
for defamation was brought upon it, h e felt that h e mus t accept
responsibility for it in the circumstances. Secondly, when he was then re-
appointed to the post o f ambassador and his defence fell t o be served,
this expressly waived his diplomatic immunity , for reasons and i n £
circumstances which are unclear, as mentioned below. At the same time,
however, and more o r less i n the same breath , h e has maintained
throughout, o n various grounds and i n different ways, tha t a n action
founded upon this embass y document is not properly justiciable i n our
courts. This i s n o doubt a situation without precedence i n our
jurisprudence. But in the upshot, because of this curiou s combination of
circumstances, it is necessary to decide as a matter o f principle whether F
or not this action i s properly maintainable and shoul d b e allowed t o
proceed, in which case our courts would have to adjudicate on the issues
raised by the contents and publication of this document.
What would that involv e i n practice? I n the normal course o f
an action o f this kind i t must involv e th e truth o r otherwise o f
the allegations concerning the plaintiff; the circumstances in which these Q
allegations were made, for th e purpose o f seeking to establish a prima
facie defence of qualified privilege; and then no doubt the usual issue as
to the good faith o r possible malice of the person responsible for them.
Having regard to the contents of the document, the full ventilatio n and
exposure o f these issues, and th e decision o f our courts upon them ,
would be bound t o intrude upon th e internal policies and practices o f
this embassy, and thereby reflect upon the Unite d Arab Emirate s in a "
manner which might affect relations with this country.
However, the embarrassment for th e United Arab Emirate s which
could result from the public discussion of the issues likely to be raised in
449Annex 28
735
1 Q.B. Fayed v . Al-Tajir (C.A.Kerr L.J.
A this particular case i s not i n itself any ground for deciding whether this
dispute i s properl y justiciable i n our courts . That question must b e
decided as a matter o f principle by reference to the nature and status o f
the document o n which the claim is based. But th e likely consequences
of justiciability for the dignity of a foreign friendly state and its embassy
in this country illustrate th e need for the application o f a rule o f public
policy in order to decide that question.
° I share entirely th e views of Mustill L.J. that th e justiciability of the
dispute raised b y this document cannot b e determined b y a process o f
attempting to put the present case into one o f the categories o f related
issues raised b y earlier cases i n different contexts i n times when
international relations may have bee n less sensitive. The present case i s
sufficiently unparalleled in our corpus juris t o require a n independent
Q approach , undeterred b y th e traditional reluctance o f our courts t o
create new applications of rules of public policy. In that connection, and
in the same way as Mustill L.J., I have reached the clear conclusion that
the broad concep t o f international comity, i n combination with th e
settled rule withi n that concep t expressed b y th e "inviolability" o f
diplomatic documents, require u s t o hold that this dispute i s not
justiciable in our courts . In the context of an action for defamation this
D consequence ca n b e expressed b y holding that th e publication o f this
document i n th e circumstances o f this case i s protected b y absolut e
privilege; and I so hold. But the appropriate terminology is secondary to
the non-justiciability o f this dispute a s a matter o f principle. I n that
connection I think that i t i s irrelevant a t what point and b y what
procedural means the objection to its justiciability is raised; viz. whether
£ b y a n application t o strike out th e action, o r b y objecting t o th e
production or admissibility of the document on discovery or in evidence,
or b y a defence o f absolute privilege. The principles o f comity and
"inviolability" must b e th e same i n all cases, a t any rate where the
action i s founded upon th e contents and publication o f a n embassy
document.
Despite the novelty o f the issue raised b y this case, i t seems to me
F that this conclusion i s consistent with the general tenor of the authorities
to which w e were referred and not inconsistent with any o f them . I
derived the greatest direc t assistance from the learne d discussion of this
question i n th e judgment o f Bissonnette J . i n th e Supreme Cour t of
Quebec in Rose v. The King [1947] 3 D.L.R. 618, with which the other
members o f th e court agreed . The fact s were briefly a s follows. Th e
Q defendant was a Canadia n subject who had been convicte d on charges
of conspiracy with a group o f Russian and Canadia n subjects to violate
the provisions o f the Official Secrets Act 1939 i n various ways which
were prejudicial t o the safety o f Canada. Part o f the evidence agains t
him was contained in documents which Gouzenko, a cypher clerk in the
Russian embassy in Ottawa, had stolen from the embassy files o f th e
Russian Military Attache , Zabotin, th e central figure i n a sp y ring,
" which Gouzenko had handed over t o th e Royal Canadian Mounted
Police. The documents were produced b y Gouzenko as a witness at the
trial and formed a n important part o f the evidence for the prosecution.
The defendant Rose thereupon claimed that the documents were
450 Annex 28
736
Kerr L.J. Fayed v . Ai-Tajir (C.A. [1988]
inadmissible on the ground that they were privileged and immune from A
use in any legal proceedings. Bissonnette J . summed up this argument,
at p. 639:
"He maintains, and I feel well seized o f his argument, both i n his
statement and a t th e hearing, that immunity , being a n absolute
privilege resulting from jus gentium, every court o f justice, as soon
as the matter sub judice permits establishing that this privileg e is g
put in peril, is, erga omnes, without jurisdiction o r competence t o
hear or to receive the deposition of a diplomatic agent and t o take
cognizance of documents which h e offers i n evidence, without th e
consent of the state that he represents."
The judgment continues with a lengthy and detailed review o f th e
principles of international la w relevant t o this argument, with copiou s C
citations from text books o f high authority. The fact that mos t of these
were French is irrelevant, since the principle s are those of jus gentium,
and it was expressly pointed out that ther e was n o relevant Canadian
statute which affected th e issue. The judge's conclusion that diplomatic
documents were "inviolable" anticipated the use o f the same term in the
Vienna Convention o f 1961, a s do many passages from his judgment.
The interesting point for present purposes, however, i s the width of his ^
conclusion about the concept of inviolability. He said, at p. 646:
"International la w creates a presumption o f law that documents
coming from an embassy have a diplomatic character and that every
court o f justice must refuse t o acknowledge jurisdiction o r
competence in regard to them."
E
This conclusion i s supported b y Denza on Diplomatic Law (1976),
(published b y Ocean a Publications Inc. and th e British Institute o f
International and Comparative Law) i n the author's commentary o n
article 24 of the Vienna Convention, a t p . 110, to which we were also
referred.
In Rose v. The King [1947] 3 D.L.R. 618 Bissonnette J . went o n to „
hold that th e immunity o f diplomatic documents from use i n legal
proceedings was not absolute and that i t did not avail th e defendant in
that case. H e held that it could not b e invoked by a Canadian citizen in
litigation between his government and himself; nor when the documents
revealed an abus e o f diplomatic privilege b y the foreign state which
constituted a threat t o the safety of the receiving state; nor—semble and
quaere—in cases where n o one connecte d with the foreign state o r its G
embassy claimed an y privilege for the documents. But none o f these
considerations applies here. Having read and re-read the judgment o f
Bissonnette J. I find that i t fully supports my instinctive conclusion that
the contents and publication o f this embassy document must be treated
as immune from the process of our courts for the purposes o f an action
such as the present. I t falls within the concep t of "inviolability" in the
wide sense stated above, and n o possible exception to that concept can
be of any relevance in the present case.
I equally agree with the remarks o f Mustill L.J. expressing doubts
about the circumstances concerning the defendant's waiver of diplomatic
451Annex 28
737
1 Q.B. Fayed v . Al-Tajir (C.A.Kerr L.J.
A immunity. These involve two aspects which need t o b e emphasised.
First, ther e i s n o inconsistency i n principle between a waiver o f the
diplomatic immunity o f a defendant and the assertion o f a clai m for
immunity of a diplomatic o r embassy documen t whose contents are
sought to be introduced into th e proceedings against him. Admittedly,
the co-existence of th e waiver and o f the assertion i s extraordinary i n
the present case, becaus e every issue raised agains t th e defendant,
** whose personal immunity has been waived , stems from the contents and
publication of a documen t whose immunity has been asserted i n th e
same breath. But I cannot see that this make s any difference
in principle. I t merel y produces a n extraordinary and apparently
unprecedented situation. Th e waiver o f the immunity from suit o f th e
dependent does not destroy th e claim for immunity o f th e document,
Q since this i s justified b y the character o f the document, irrespective o f
the defendant's submission t o th e court's jurisdiction agains t him
personally.
The second aspect is that the fact and circumstances of the waiver of
the defendant's immunity ar e perplexin g and unsatisfactory. I t i s
elementary that only th e sovereign can waive the immunity o f its
diplomatic representatives. They cannot d o s o themselves. For that
D reason alone th e defendant's defence filed i n th e proceedings agains t
him is not an appropriate vehicle for the manifestation of the sovereign's
decision to waive the defendant's immunity. Moreover, a waiver which
only purports to be manifested in this manner gives rise to doubts as to
whether i t really represent s the act and will o f th e sovereign. I n th e
present case I have remained throughout i n the gravest doubt about th e
g knowledge and understanding o f the sovereign, th e United Arab
Emirates, concerning the issues and perhaps even the pendency of these
proceedings. But, in the same way as Mustill L.J., I d o not see that an y
purpose would b e served a t this stage b y taking these aspects any
further. I would only add that i f I had felt any doubt about the
correctness of the judge's decision in favour of the defence o f absolute
privilege, then I would—for myself—not have been willing to reverse his
F decisio n and allow this action t o proceed without having mad e a n
attempt, through th e Foreign and Commonwealt h Office, t o ascertain
the attitude of the United Arab Emirates t o this action.
I agree that this appea l should be dismissed.
Appeal dismissed.
Defendant's costs of appeal.
" Costs below undisturbed.
Leave to appeal refused.
Solicitors: McKenna & Co.; Fox & Gibbons.
8 April 1987. The Appeal Committee o f the House o f Lords (Lord
Bridge of Harwich, Lord Templeman and Lord Olive r of Aylmerton)
H dismissed a petition b y the plaintiff for leave to appeal.
A. R.
452
Counter-Memorial of Australia