Zhang v. Zemin (2010) NSWCA 255 (5 October 2010).

AuthorMills, Dale
PositionLiability of a foreign state in tort for alleged acts of torture

Introduction

The issues raised in Zhang v Zemin, (1) heard in the NSW Supreme Court in 2008, have been revisited by way of appeal to the NSW Court of Appeal. (2) The case concerns the liability of a foreign state in tort for alleged acts of torture. The Court of Appeal approved the lower court's judgment and examined a number of issues not previously addressed. The judgment will not find favour with those wishing to see actions in tort available for acts of torture conducted by foreign states.

  1. Facts

    The Appellant, Cuiying Zhang, is an artist. She now lives on the Gold Coast, Australia, but used to live in the People's Republic of China (PRC). While in the PRC, she was a member of the Falun Gong meditation group. Ms Zhang alleges that it was due to her membership of Falun Gong that she was subjected to torture, assault, false imprisonment and wrongful arrest. Ms Zhang says that those responsible for her ill treatment were the (then) President of the PRC, the Falun Gong Control Office (the so-called '610 Office') and Mr Luo Gan. The 610 Office is a PRC government department and Mr Gan a member of the Politburo of the Chinese Communist Party who was in charge of law enforcement. The three parties were named, respectively, as the First, Second and Third respondents.

    There was no appearance by any of the named respondents. The Commonwealth Attorney-General was granted leave to join the proceedings in the lower court (becoming Fourth respondent) and sought a declaration that Ms Zhang could not bring an action against the first three respondents on the basis of foreign state immunity. This was appealed and the appeal was dismissed.

    Foreign state immunity is dealt with in Australia under the Foreign States Immunities Act 1985 (Cth) ('the Act'). The Act states that a 'foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.' There is a list of (uncontroversial) exceptions, reflecting the position at international law, (3) in relation to matters such as commercial transactions. (4) Provision is made for a notification process to the Commonwealth Attorney-General when actions are brought against foreign states. (5)

    The nub of this case is whether there should be another exception to foreign state immunity in relation to torture. Surely, as a jus cogens norm, it is not right that a person can be tortured and yet not have a remedy in tort?

    The Act allows for the Attorney-General to provide a certificate, under section 40 of the Act, certifying that parties were part of the government of another state. The Attorney-General did so, thus arguing that the PRC, the Falun Gong Control Office and Mr Luo Gan were immune from the process of the Australian courts. (6) It was argued by the Appellant that foreign state immunity could not apply to jus cogens norms, such as the prohibition against torture.

  2. Who has to Raise Immunity?

    Spigelman CJ gave the lead judgement, with Allsop P and McClellan CJ at CL concurring. The first ground of appeal may be dealt with quickly. It stated that the lower court erred in finding immunity because it was not claimed by any of the respondents. (7) This ground of appeal was rejected. Spigelman CJ spends considerable time reviewing the Act (8) and the case law (9) to show that courts must satisfy themselves that they have jurisdiction over the matters before them, and that it is not necessary for a party immune from jurisdiction to attend court to assert that immunity. The finding of immunity' without the attendance of the PRC at Court was correctly decided.

  3. Does Immunity Refer to Former Heads of State?

    The second ground of appeal relates to the interpretation of 'foreign State' and whether immunity extends to a former head of state. (10) The definitions section (11) of the Act states, without much illumination, that a 'foreign State' is a country (other than Australia) 'that is ... an independent sovereign state ...' To assist matters, section 40 of the Act allows the Minister for Foreign Affairs to certify in writing that 'for the purposes of this Act ... (a) a specified country is, or was on a specified day, a foreign State ...'.

    As will soon become relevant, the Attorney-General under the same section may also certify that a 'specified person' is, or was at a specified time, a foreign head of government. Such certifications are to be treated by the Courts as 'conclusive' as to the facts and mattes stated therein. (12)

    The Appellant submitted that the terms of immunity in respect of heads of state...

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