Lone precedent comments on use of Minister's certificates

A quiet and discreet tussle with interesting legal considerations has been going on in Canberra for nearly a year now, between Falun Gong "practitioners" (how they describe themselves) and Alexander Downer, the Minister for Foreign Affairs and Trade (DFAT).

The practitioners, who espouse a traditional exercise and study regime said to bring about physical and spiritual health, have been seeking to direct public attention to the persecution of Falun Gong in China by erecting placards in front of the Chinese Embassy in Canberra, by broadcasting taped announcements when a busload of Chinese tourists appears and by playing music.

Certificates forbidding these "prescribed objects" have been issued by the Minister - on three successive occasions at the time of LSJ's going to press.

The Minister is empowered to issue the certificates by regulations under s.15 of the Diplomatic Privileges and Immunities Act 1967.

In the 35 years since the Act was promulgated, for the first 25 years no Minister saw occasion to issue certificates banning "prescribed objects' at public demonstrations targeting diplomatic missions, but the past decade has shown two Ministers resort to the executive power.

The first was Grareth Evans, once an academic lawyer specialising in civil liberties and a Foreign Minister (1988-1996) in various Labor governments üC

In 1992 Evans issued a certificate ordering the removal of a prescribed object (white wooden crosses) from their location within 50 metres of the Indonesian Embassy (Magno and another v Minister for Foreign Affairs and Trade and others, Federal Court of Australia-General Division).

East Timorese community members who had been protesting outside the Indonesian Embassy in Canberra, went to court to argue the invalidity of Special Regulation no 7 1992, made under s.15 of the Diplomatic Privileges and Immunities Act 1967 and enabling the Minister to authorize removal of the crosses.

At the first hearing Olney J ruled the regulation was invalid and ordered an injunction staying the Minister's action.

This decision was set aside on appeal to the full court, Gummow and French JJ. (Ein-feld J dissenting.)

Generally the tenor of the judgments was that the exercise of Ministerial power outside the consensual ambience of Parliament is to be deplored, and that a statute should be demonstrably deficient in achieving its objectives before a Minister starts creating regulations to authorize taking executive action.

There is no dispute that missions require protection and Australia is signatory to the Vienna Convention on Diplomatic Relations 1961. More than that, Australia, through section 15 of the Diplomatic Privileges and Immunities Act 1967 has given Articles 22 and 29 of the Vienna Convention, the force of law.

These articles oblige the Government to take all appropriate steps to protect another State's diplomatic mission from damage to its premises, from attacks on the freedom, person or dignity of its personnel, and from any disturbances of the peace that impair the mission's dignity.

Falun Gong's prohibited activities are said to "impair the mission's dignity".

One argument to surface in the judgements was that an offended government's behaviour may do far more to impair its dignity, than actions by protesters outside its mission gates.

Falun Gong practitioners are allegedly the subject of vigorous persecution in China where the movement originated and where it did for a time gain government approval until its precepts began to prove troublesome.

Significant numbers of practitioners have reportedly been imprisoned, tortured and beaten to death for refusing to "renounce their faith in Falun Gong". Independent human rights groups corroborate reports of persecution.

In Canberra, Falun Gong are a constant presence outside the Chinese Embassy, originally standing right in front of it, but now across the street.

According to spokesperson, John Deller, an Australian architect who started practising Falun Gong two years ago, their banners and broadcasts castigate the government official said to be responsible for the persecution, Luo Gan and Jiang Zemin. Deller said they are aware that they mustn't interfere with the mission's ability to carry out its routine functions. "Truth, compassion and forbearance," "The World knows Falun Dafa is good" and "Peaceful appeal to end the persecution of Falun Gong in China" are said to be the translation of the Chinese characters on the banners.

Deller says the banners are heavy and to hold them aloft is more than the aged practitioners among the demonstrators can manage. Moreover, many of the Falun Gong work full-time and they want the banners to be erected so that their message has a continuous presence.

Falun Gong does not intend to contest the Minister's action in court but has laid a complaint with HRECO whose staffer, Stephen Duffield, said HREOC will attempt conciliation and if that fails, they may have to turn to Parliament.

John Deller said he thought an earlier misunderstanding with DFAT, that Falun Gong were opposed to compromise, had been resolved and he was optimistic that continuing dialogue with the Minister and bureaucrats would produce a compromise acceptable to all parties.

The extension of executive power is currently attracting attention associated with criticism of anti-terrorist legislation and the trade-off between alleged dangers and freedom. For that reason, some of the see-saw judicial comments in Magno are of interest.

One judge observed that the regulation allows the Minister to form an opinion -- but does not authorise them to be the arbiter -- of what constitutes a threat to the peace of the mission. To achieve that would require very specific powers in the Act itself.

However, carrying out their obligations under the Vienna Convention does not confine Australian governments to enforcing existing law but can ex tend to imposing or extending "additional legal obligations upon the community".

But having done the deed, the Minister might be scrutinized for motive: did he act for a purpose outside the Act? (Falun Gong believes their certificates could have been issued to protect Australia's trade with China).

And was his opinion his own? As one judge put it, while the source of the Act is an international convention, we don't want governments known to be autocratic, authoritarian or military in nature contributing to, let alone determining the extent of freedom of expression in Australia. (According to Falun Gong, the decision to issue a certificate seemed related to a visit to Australia by China's Foreign Minister.)

Some views of mission dignity that came up in Magno citations are pretty robust: Missions are after all, political bodies, said one judge, three years after the Diplomatic Privileges and Immunities Act was passed. They're used to a bit of rough and tumble and to strong verbal expressions of disagreement with their government policies.

Britain's judges in particular might have held Falun Gong's modus operandi to be small beer.

One UK decision hold that "the peace of the mission can not be given so wide an interpretation as to require the mission to be insulated from public opinion within the receiving State -- provided that the work at the mission can continue normally" and another opined that "impairment of the dignity of the mission required abusive or insulting behaviour and political demonstrations do not themselves amount to such".

It's no secret that a statute pushed and publicized by Parliamentarians can serve to mollify constituents while regulations that weaken or effectively disable the same statute, can be created to serve powerful interests.

Alexander Downer's certificates last for only 30 days and have to be re-issued, presumably a cautious qualifier of Ministerial discretion, as well as providing an opportunity for political protesters to cool down.

Falun Gong pride themselves on being cool. Hot-heading is not for the likes of John Deller, a quiet, dignified person with a calm manner.

But meek doesn't mean weak and the practitioners are anticipating a long vigil.

Mary Rose Liverani
She is a senior writer in The Law Society of New South Wales, Australia. This article was published in Law Society Journal in June 2002.