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 Whistleblowers Need Protection


Immunity in Australia from Torture

By David Matas
Revised remarks prepared for a press conference 4 November 2010
Queens Square,Sydney, Australia

An Australian citizen, Cui Ying Zhang, on a visit to China in 2000, was arrested, beaten and tortured over a period of eight months because she practised Falun Gong and opposed its banning1. She sought redress in the New South Wales courts against her torturers by a lawsuit commenced in September 2004.

The defendants were Jiang Zemin, Luo Gan and the 610 office. At the time of the torture, Jiang Zemin was General Secretary of the Communist Party of China (CPC) and President of China. The 610 office, named after the date of its establishment, 6.10.1999, is a Communist Party organ responsible for repression of the practice of Falun Gong. Luo Gan, at the time of the torture, was a member of the governing body of the CPC and a leading advocate within the Party for the repression of Falun Gong.

The New South Wales Court of Appeal rejected her lawsuit in October this year relying on the Australian Foreign States Immunities Act and a certificate of the then Minister of Foreign Affairs Stephen Smith. In the view of the Court, the former Chinese officials Ms. Zhang sued as well as the office in charge of repression of Falun Gong were immune from civil suit because of that legislation and certificate.

On its face, state immunity was not relevant, since it was Communist Party officials and their relevant bureaucracy which were sued. The 610 office is a Party office, not a state office. Luo Gan had at the relevant time a couple of state functions, but they were unrelated to the persecution of Falun Gong which he led. Jiang Zemin was head of both the Party and the State at the relevant time, but it was in his capacity as head of the Party that he acted to spearhead the repression of Falun Gong.

The Foreign Affairs Minister stated in written form to the Court:

    "Having considered the following facts and matters:

      d. the Australian Government's long-standing official recognition, including through diplomatic practice, of CPC officials and organs as part of the Government of the People's Republic of China;

      e. the established international recognition, through the practice of the international community, of CPC officials and organs as part of the Government of the People's Republic of China;...

    I further certify, that Jiang Zemin, the 610 office (Falun Gong Control Office) and Luo Gan were all part of the government of a foreign State within the meaning of the FSI [Foreign State Immunities] Act at the time of the alleged acts which form the basis of the plaintiff's claim."

The legislation states that a certificate is conclusive as to the facts and matters in the certificate2. So once the certificate stated that the 610 office is part of the Government of China, the courts could not have found differently, even though the office is not in fact part of the Government of China.

It might seem that it was open to the courts to find that, though Jiang Zemin and Luo Gan were part of the Government of China at the time of the torture, they were responsible in their Party and not their Government capacities for the torture of Ms. Zhang. However, Spigelman CJ reasoned that the immunity provisions in the legislation "would have no work to do" if they could be avoided in this way3.

I am not an Australian lawyer. I do not feel it is appropriate for me to question the interpretation the New South Wales Court of Appeal has given to Australian law. But I am an international lawyer. It is clear to me the judgement puts Australia in violation of international law.

Australia is a signatory to the United Nations Convention against Torture which provides4

    "Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation..."

The Committee against Torture established under the Convention has concluded that this provision obligates states parties "to ensure the provision of compensation through its civil jurisdiction to all victims of torture" and to enact "effective measures to provide civil compensation to victims of torture in all cases"5. Justice Allsop in the Court of Appeal in the Zhang case explicitly agreed with this interpretation of this provision of the Convention, writing that it "remove[s] the immunity of foreign States for civil liability for torture"6.

That did not happen here. Australia has not ensured in its legal system that Ms. Zhang, the victim of an act of torture, was able to obtain redress and to have an enforceable right to fair and adequate compensation.

The situation calls for an immediate remedy. One solution is legislative. The United States under its Foreign Sovereign Immunities Act allows for redress for torture against states designated as sponsors as terrorism7. In Canada, there is no exception to state immunity for redress for torture, but at least there is legislation pending in Parliament to that effect introduced as a private member's bill by a former Minister of Justice, Irwin Cotler, now a member of the Liberal opposition in the Canadian Parliament8.

Australia has a second option, regulatory change. It need not wait for the legislative process. Its current Immunities Act provides9:

    "Where the Minister is satisfied that the immunities and privileges conferred by this Act in relation to a foreign State differ from those required by a treaty, convention or other agreement to which the foreign State and Australia are parties, the Governor-General may make regulations modifying the operation of this Act with respect to those immunities and privileges in relation to the foreign State so that this Act as so modified conforms with the treaty, convention or agreement."

China is a party to the Convention against Torture. So the current situation falls four square within the regulation.

The New South Wales Court of Appeal has determined in the Zhang case that the immunities conferred by the Immunities Act in relation to China differ from those required by a convention to which China and Australia are parties, that is to say the Convention against Torture. The Convention against Torture requires effective measures for redress for torture. The legislation prevents redress. The Government, accordingly, may make regulations modifying the operation of the Immunities Act with respect to China so that the operation of the Act conforms with the Convention against Torture.

Specifically, the Government could, under the present legislation, enact a regulation providing that China could be sued for torture in Australian courts. That, in my view, is what should happen. I call on the Government of Australia to do just that.

The current situation is most odd. Both China and Australia have signed a treaty agreeing that there would not be, that there could not be, state immunity from civil actions for torture. Australia, through the Zhang decision, insists on giving China immunity even though China by treaty with Australian has waived any right to immunity it might have absent the treaty. For Australia to insist on giving China an immunity both have agreed by treaty it could not have is indefensible.

The current situation, flowing from the decision in the Zhang case, puts Australia in violation of its treaty obligations to all signatory states to the Convention against Torture. Australia has promised every state party that it would not give civil immunity for torture. Yet, the effect of the Zhang case is to do just that.

This consequence of the Zhang decision should not be dismissed lightly. The official foreign policy stance of Australia is that states should respect international law in general and their treaty obligations in particular. This position is undermined when Australia violates its own treaty obligations.

The issue here is broader than allowing compensation for torture. The question becomes whether Australia is going to respect or violate the rule of law internationally. For Australian foreign policy to be coherent, there needs to be a remedy. The simplest, quickest and best remedy in the circumstances would be a regulation allowing China and all other states parties to the Torture Convention to be sued for torture in Australian courts.

When Ms. Zhang was in detention in China, the Australian consulate in Guangzhou did the best they could to alleviate her inhumane treatment and secure her release. It is perverse for Australia to make such splendid efforts to help their citizens victimized abroad and yet to prevent their seeking a remedy once they have returned home.

The Australian government and Parliament have the power to determine what happens in Australia. For the Australian government to combat torture abroad but provide an immunity in Australia to foreign torturers is both inconsistent and cruel.

David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada.

2. Section 40(5)
3. Paragraph 65
4. Article 14(1)
5. 7 July 2005 UN Document number CAT/C/CR/34/CAN paragraphs 4(g) and 5(f)
6. Paragraph 172
7. Section 1605(a)(7)
8. Bill C-483
9. Section 42(2)
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