East Timor institutes proceedings against Australia in relation to documents seized from office of Australian lawyer

On 17 December 2013, East Timor instituted proceedings against Australia in the International Court of Justice (ICJ) in relation to documents seized by the Australian Security Intelligence Organisation (ASIO) from the office of an Australian lawyer representing East Timor in an upcoming arbitration with Australia. By its application, East Timor requests a declaration that the seizure and continued detention of documents violates its sovereignty and property rights under international law, an order that Australia return the documents, and a formal apology. The ICJ will hear the parties on provisional measures on 20-22 January 2014.

Seizure of documents by ASIO

The proceeding relates to a raid conducted by ASIO on 3 December 2013 at the office of Australian lawyer Bernard Collaery in the Australian Capital Territory. Mr Collaery was in the Netherlands at the time of the raid. The documents relate to a pending arbitration between East Timor and Australia, which concerns allegations by East Timor that Australia engaged in spying during negotiations to sign the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). In that arbitration, East Timor contends that Australian espionage invalidates CMATS, a $40 billion gas and oil treaty.

The Federal government’s response

The raid and seizure generated significant controversy in Australian and global media. The day after the seizure, Australian Attorney-General Senator George Brandis stated that a warrant had been issued to ASIO authorising the raid pursuant to section 25 of the Australian Security Intelligence Organisation Act 1979 (Cth). Section 25 requires that the Attorney-General be satisfied that information seized will substantially assist in collecting intelligence for the purpose of national security. Senator Brandis stated that he believed the documents satisfied statutory requirements on the basis of ASIO intelligence provided to him, and that he had instructed ASIO that the documents are not under any circumstances to be communicated to those conducting the proceedings on behalf of Australia.

East Timor’s application

East Timor has invoked declarations made by Australia and East Timor pursuant to Article 36(2) of the ICJ Statute as the basis for the ICJ’s jurisdiction to hear its claim in relation to the seized documents. Article 36(2) allows States to make declarations accepting the Court's jurisdiction as compulsory.

In addition to the relief outlined above, East Timor seeks a number of provisional measures including that Australia:

• deliver the seized documents and data into the custody of the ICJ;
• deliver to East Timor and the ICJ a list of the documents and data seized in the raid that have been disclosed or transmitted to any person (including employees of the Australian Government) and a list of the identities and current position of those persons;
• deliver a list of any copies made of the seized documents and destroy any copies made of the documents to date; and
• give an assurance that it will not intercept communications between East Timor and its legal advisors.

Pending a provisional decision, East Timor has requested that the President of the ICJ exercise his powers under Article 74(4) of the ICJ Statute to call on Australia to immediately:

• deliver a list of the documents and data seized to East Timor and the ICJ;
• seal the documents;
• deliver the sealed documents to Mr Collaery’s office or the ICJ; and
• refrain from intercepting communications between East Timor and its legal advisors.

The Court’s response

On 20 December 2013, the President of the ICJ, Judge Peter Tomka, issued an urgent communication to the Prime Minister of Australia indicating the date for the hearing on provisional measures. Judge Tomka also reminded the Australian government of the need to act in such a way as to ensure that any Order made by ICJ in relation to request for provisional measures could have its appropriate effects, in particular the need to refrain from any act which might cause prejudice to the rights claimed by East Timor.

The full text of the Court’s communication is available at:

http://www.icj-cij.org/docket/files/156/17846.pdf

The press release issued by the ICJ in relation to the proceeding is available at:

http://www.icj-cij.org/docket/files/156/17844.pdf

This article was prepared by Leon Chung, Partner, Alexandra Payne, Solicitor and Alice Gardoll, Vacation Clerk.

For further information, please contact, Leon Chung, Partner, or your usual Herbert Smith Freehills contact.