(v) International law does not recognise acts which are jus cogens to be acts done in a public or official capacity.
124 Accordingly, it is no part of the public capacity of the executive government or of the head of state to torture the citizens of that state and the words "foreign State" in s 9, as further defined in s 3, do not extend to such conduct.
125 Where, as here, an Australian statute applies to circumstances to which international law also applies, an Australian court must apply the local statute in accordance with its terms, even if doing so may conflict with a principle of international law. The court applies all principles of statutory interpretation, including the principle that, where permissible, the court will seek to give effect to Australia's international obligations, including rules of customary international law. (Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 at 363; Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 74-77, 79, 81; Koowarta v Bjelke-Peterson (1982) 153 CLR 168 at 203-204, 211-212, 224; Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 303-305; Kartinyeri v The Commonwealth (Hindmarsh Island Bridge Act Case) [1998] HCA 22; (1998) 195 CLR 337 at [97].)
126 This principle affects the interpretative tasks that arise in the course of statutory interpretation, including:
Deciding the meaning of ambiguous or obscure words.
Deciding whether to read down general words.
Deciding whether a definition does not apply on the basis of a strained construction.
Considering whether to depart from the natural and ordinary meaning of words by adopting a strained construction.
Giving qualificatory words an ambulatory operation.
Drawing implications from the text.
Reading words into a statute by filling gaps.
127 I have discussed those processes on other occasions. See, eg, R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 and the authorities discussed in J J Spigelman, Statutory Interpretation and Human Rights: The McPherson Lecture Series Vol 3 (2008) Queensland University Press, esp at pp 47, 117-143.
128 There must, however, be some ambiguity, in the broad sense of the term, in the legislative scheme which permits the court to interpret the legislation consistently with customary international law or Australian treaty obligations. (See, eg, Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.)
129 As Mason CJ and Deane J, with whom Gaudron J agreed, said in Teoh supra at 287-288:
"In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations."
130 Section 9 of the Immunities Act commences with the words "Except as provided by or under this Act …". The Act goes on to identify a number of specific exceptions. In my opinion, the words "except as provided by or under this Act" do not allow for any exception based upon international law, even if that law is of the character for which the appellant contends.
131 Lord Bingham's analysis in Jones v Ministry of Interior supra, is precisely in point. Section 1(1) of the State Immunity Act 1978 (UK) provides:
"A state is immune from the jurisdiction of the courts in the United Kingdom except as provided in the following provisions of this Part of the Act."
132 Sections 2-11 of the UK Act identify proceedings from which a state is not immune. They are the equivalent of ss 10-20 of the Immunities Act. In my opinion, s 1(1) of the UK Act is indistinguishable from s 9 of the Immunities Act.
133 Lord Bingham's analysis is applicable to the Australian legislation. He said at [13]:
" … On a straightforward application of the 1978 Act, it would follow that the Kingdom's claim to immunity for itself and its servants or agents should succeed, since this is not one of those exceptional cases, specified in Part 1 of the 1978 Act, in which a state is not immune, and therefore the general rule of immunity prevails. It is not suggested that the Act is in any relevant respect ambiguous or obscure: it is, as Ward LJ observed in Al-Adsani v Government of Kuwait (No 2) (1996) 107 ILR 536, 549, 'as plain as plain can be'. In the ordinary way, the duty of the English court is therefore to apply the plain terms of the domestic statute. …"
134 The only reason why the House or Lords felt it necessary to go beyond this interpretation is because of the impact of the Human Rights Act 1988 (UK). This is not necessary in Australia.
135 I note that the Supreme Court of the United States reached the same conclusion with respect to a similarly worded provision in Samantar v Yousuf supra at 7. So did the Ontario Court of Appeal in Bouzari supra at [42]. (The Supreme Court of Canada refused leave to appeal.)
136 In my opinion, there is nothing ambiguous, even in the broad sense of that term, about the words: "Except as provided by or under this Act" in s 9. By enacting Part II of the Immunities Act, Parliament intended to remove the uncertainty in the state of both international law and the common law by creating, in s 9, an absolute immunity and providing, in subsequent sections, for a precise and complete list of exceptions. It would, in my opinion, undermine this objective to introduce a limitation of the kind for which the appellant contends upon the natural and ordinary meaning of the words "Except as provided by or under this Act" in s 9 or the words "in his or public capacity", with reference to the head of state, in s 3(3)(b) and the equivalent limitation which may be implicit in the references to the various manifestations of executive government in s 3(3)(c).
137 I find the introductory words in s 9 - "Except as provided by or under this Act" - intractable. For this reason alone, this ground of appeal should be rejected. The position is like that described by Mason CJ, Wilson and Dawson JJ, in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 519:
"[W]e are concerned with an Act which purports to cover the field … and we do not think there is any room for international law to make up any deficiency, whether the result of inadvertence or not, which may appear in the law."
138 Section 9 is not, in my opinion, ambiguous or obscure, within the meaning of s 15AB(1)(b)(i) of the Acts Interpretation Act 1901 (Cth). It is not necessary to have regard to extrinsic material pursuant to that section. Nevertheless, as the parties emphasised the significance of the ALRC Report, which proposed legislation in the precise form of the Immunities Act, it is appropriate to refer to that report in order to identify its purpose in the sense of the mischief to which the Act was directed. (See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.) The Report confirms that the meaning of s 9 is its natural and ordinary meaning, within s 15AB(1)(a).
139 At the time that the ALRC Report was presented and acted upon by the Commonwealth Parliament, there was no clarity in the principles of international law which determined what kinds of official conduct were entitled to immunity. As Lord Denning put it in Nizam of Hyderabad supra at 417-418, in a judgment which was disapproved by other Law Lords in that case, but which has subsequently been very influential:
"Search as you will among the accepted sources of international law and you will search in vain for any set of propositions. There is no agreed principle except this: that each State ought to have proper respect for the dignity and independence of other States. Beyond that principle there is no common ground. It is left to each State to apply the principle in its own way, and each has applied it differently. Some have adopted a rule of absolute immunity which, if character which logical extreme, is in danger of becoming an instrument of injustice. Others have adopted a rule of immunity for public acts not for private acts, which has turned out to be a most elusive test. All admit exceptions. There is no uniform practice. There is no uniform rule. …"
140 The ALRC Report emphasised at pp xv-xvi that the common law had developed considerably in recent times. The Report went on to outline in some detail the nature of that recent development and the issues that had arisen because of it. It specifically noted the enactment of legislation in a number of common law jurisdictions in the light of these developments. (See at [16].)
141 The general nature of the development at common law was described (at [9]-[11]) as the substitution of the traditional "absolute immunity" approach by a "restrictive immunity" approach. The latter reflected the development of exceptions to state immunity which had arisen primarily because of the expansion of governmental conduct beyond traditional roles into commercial and trading activities. (For the progression of the UK case law see the analysis by Lord Cross of Chelsea in The Philippine Admiral v Wallem Shipping [1977] AC 373 esp at 391-393 and 397-399 and the analysis by Lord Denning in Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529 at 552-557. See also I Congreso del Partido supra per Lord Wilberforce at 261-267. The parallel development of United States law is set out in Verlinden supra at 48.)
142 The principal problem with the emergence of restrictive immunity was the degree of uncertainty that existed with respect to the kind of conduct that would be found to be exempt from immunity under the restrictive approach. As the ALRC Report put it:
"[62] … The present law is uncertain in a number of respects. It proceeds upon a distinction between governmental and private or commercial which is inadequate to deal with the full range of issues upon which it is proper that local plaintiffs should be able to bring foreign states before Australian courts. In the interests of avoiding possible future foreign relations problems Australia should articulate to foreign states more precise rules governing their liability to the jurisdiction of Australian courts."
143 In its analysis of the current state of the law, the ALRC Report referred to matters of uncertainty in the context of determining whether or not to recommend legislation, as distinct from leaving the matter to the common law. For example, the Report said:
"None of the Australian cases is recent, and none of them is accordingly helpful in assessing the present Australian law. At least one can say that the Australian courts would be likely to follow a common law position established by English courts …"(at [17])
With respect to the English common law: "Because the focus is on the dichotomy between commercial and governmental transactions, the distinction gives no guidance, and neither does the case law, as to when non-commercial torts committed by the foreign state will be immune." (at [18])
"The question of execution against foreign state property (other than trading ships) has not been carefully considered in any of the recent English cases." (at [19])
"Apart from a basic distinction between immune and non-immune conduct or transactions, the most vexed question in foreign state immunity has been what entities apart from the state, head of state and central government should be entitled to the shield of foreign state immunity. This is not an area in which executive significance are available to resolve doing all this … No precise test has emerged as to when immunity is available." And in referring to a particular statement: "… such a test does not lend itself to precise application." (at [20])
With respect to the method of waiving immunity: "It is not clear that a modern Australian court would follow these decisions, but until they are overruled, the position remains uncertain and unsatisfactory." (at [21])
The Report also discussed the difficulties of service of process. (at [30])
144 The ALRC summarised the position as follows:
"[34] As this survey indicates, the English courts have been seeking to develop the common law in line with what they perceive as developments in international law and practice. This process has been most marked in relation to the area of substantive immunity from jurisdiction, although even there it is by no means complete. It may be that a similar process will occur in those jurisdictions, such as Australia, where the common law still regulates the subject, in relation to matters such as waiver and submission, and execution. However, until this does happen considerable uncertainty will remain and is increased by the fact that in the most important common law jurisdictions the matter is now regulated by statute. Rapid clarification of the issues which remain unsettled at common law is, therefore, not to be expected."
145 The ALRC Report went on to recommend a particular approach in the legislation which it proposed and which has become the Immunities Act. It rejected an approach identifying territorial sovereignty as the starting point and also considered certain other suggestions. It said:
"[63] … The basic principle could be stated as one of absolute immunity with enumerated exceptions for which immunity will not be available."
146 The ALRC Report concluded:
"[65] … Accordingly the proposed Australian legislation should provide that a foreign state is immune except as provided in the legislation. The exceptions should be designed so as to reflect not a single governmental/commercial dichotomy but rather the full range of considerations outlined in Chapter 3."
147 The uncertainty identified by the ALRC, and by numerous other commentators at the time, was resolved in both the United Kingdom and Australia by legislation adopting a general statement of immunity subject to a detailed list of exceptions. (Sections 10-20 of the Immunities Act.)
148 The reference to "absolute immunity" in the extract from [63] of the ALRC Report is a reference to s 9. This was the approach which the ALRC recommended and which has been adopted.
149 The provision of a higher degree of certainty in this area of the law was a principal objective of the legislation as enacted. The means by which this was done, as indicated above, was to enact the traditional form of absolute immunity, subject to clearly stated exceptions. Section 9 should be so interpreted. Accordingly, the introductory words of s 9 affirmed the traditional position at common law - being absolute immunity - subject to the adoption of restrictive immunity in the respects, and only in the respects, set out in the Act itself. Certainty would be undermined by inviting disputation about the legitimacy or otherwise of official conduct. Similarly, certainty would be undermined if the legislative regime could have an ambulatory operation, in order to accord with subsequent developments in international law.
150 An argument of the character now advanced was rejected by the House of Lords in I Congreso del Partido supra, which was decided under the common law, rather than under the then recent State Immunity Act 1978 (UK). Lord Wilberforce said at 272:
"It was argued by the respondents that even if the Republic of Cuba might appear to be entitled to plead the state immunity, it should be denied that right on various grounds: that its acts were contrary to international law or, to good faith, or were discriminatory, or penal. From the view which your Lordships take these argument do not arise, but I would wish to express my agreement with the judge and with Waller LJ as to their invalidity. The whole purpose of the doctrine of state immunity is to prevent such issues being canvassed in the courts of one state as to the acts of another."
151 In the Court of Appeal Lord Justice Waller agreed with what the first instance judge had said in this regard. (See I Congreso del Partido [1980] 1 Lloyd's Law Reports 23 at 36.) The trial judge was Justice Robert Goff (later Lord Goff of Chieveley). Justice Goff said in I Congreso del Partido [1977] 1 Lloyd's Law Reports 536 at 556:
" … the acceptance until so recently in this country of the absolute doctrine of sovereign immunity has hitherto precluded ventilation of matters of this kind in the English courts … The submission appears to run contrary to the whole principle of sovereign immunity; the sovereign is immune from process precisely because the domestic court will not adjudicate upon his actions."
152 I agree with Lord Wilberforce that an important "purpose of the doctrine of State immunity", both at common law and as enacted by the Immunities Act, is to "prevent … issues" such as whether a foreign State was in breach of its obligations under international law "being canvassed in the courts" of the forum. That is what s 9 affirmed to be law applicable in Australia. In this respect also, the Immunities Act did not change the common law.
153 The Immunities Act established a definitive statement of the immunity, and a comprehensive statement of exceptions, to be applied by Australian courts. In my opinion, it is not possible to infer an additional exception from international law, either directly or by means of narrowly construing the text of the Immunities Act.
154 It is not possible to read down the words "foreign State" in s 9, as defined in s 3(3), in the manner for which the appellant contends.
155 Mr Gleeson SC's argument, set out at [123] above, fails at the first proposition. It is not possible to interpret s 9 of the Immunities Act consistently with what he contends international law requires. The third ground of appeal should be rejected.