Chow Hung Ching v The King

What happened?

Two Chinese nationals were convicted in the Supreme Court of Papua-New Guinea of assaulting and unlawfully detaining a local man, Pondranei, at Manus in January 1948. Four of them had believed he had stolen their cigarettes; they tied his hands behind his back with wire, drove him along a road, and in a hut suspended him by a cable from the roof so that only his toes touched the ground. They left him there and he fainted. The two appellants got three months and six months.

They did not dispute the facts. They said the Supreme Court had no jurisdiction over them at all, because a friendly foreign force present by consent is immune from local jurisdiction. Their position, though, was a good deal weaker than that argument assumed. They were among about 300 people recruited by China's Board of Supplies and sent to Manus to collect supplies purchased from the United States. They bore no arms; one did carpentry and the other shoemaking. They had had military training and were subject to Chinese military law, but as civilian employees of the army rather than as soldiers. Latham CJ found them "simply a body of labourers ... not part of any military force" (at 468); Starke J, that they "were not an armed force nor an organized military force in any sense" (at 473). Each appellant was sentenced to three months for the assault and six months for the detention.

What did the Court decide?

The appeals were dismissed. On Dixon J's approach the immunity does exist in Australian law — "the case depends upon the area covered by the immunity and upon the descriptions of bodies to which the immunity applies" (at 482) — and these two men fell outside it. What was required was that the body "come as part of what may be called the fighting forces representing the armed power of the sovereign state" (at 485), whereas here "a band of labourers employed by a supply authority ... is permitted to be there in order to work at what is predominantly a civilian task" (at 486). His Honour was careful about the limit of that: with "a large armed force coming for military purposes there might be within the command personnel who were not soldiers but were under military discipline, and in such a case the invitation to them might be taken to imply an immunity for the entire body" (at 486). Williams J decided the case on a narrower ground and declined to reach the broader immunity question.

Getting there took Dixon J into a prior question, and one the case is now cited for far more often than the immunity: what status international law has when an Australian court is asked to apply it. His Honour set out his answer at 477, and dealt with treaties separately at 478, starting from the Crown's authority to deal with foreign powers being "the act of the whole nation" while the consequences for individuals "vary according to the nature of the thing done". Williams J decided the case on the narrower ground and did not reach it, so what follows is Dixon J's formulation and not a joint holding.

Why does this case matter?

Because it is the reason a great many international law arguments have to be made sideways. Counsel who wants to rely on an obligation Australia has assumed usually cannot say "this binds the decision-maker". The argument has to be routed: through the presumption that Parliament does not intend to legislate inconsistently with international obligations, through the relevance of an instrument to how a discretion is exercised, or through the slow development of the common law. Each of those routes has its own conditions, and each is weaker than the direct claim — which is exactly why the direct claim is so often attempted.

It is also worth noticing what the case was actually about. Nobody was arguing about human rights treaties. A shoemaker and a carpenter who had strung another man up in a hut were arguing that an Australian court could not touch them, and the structural principle came out of Dixon J's working through why not. Doctrine about the sources of law tends to get made in cases like that rather than in the ones it is later used in.

Exam and application relevance

Separate the two questions before you answer either. If the instrument is a treaty, say that ratification creates an international obligation and no domestic rights, and then go looking for legislation that picks it up — the Migration Act, the Racial Discrimination Act, and so on. If what you are relying on is a rule of customary international law, the question is different: it is whether that particular rule has been received into the common law, which is decided case by case and is not answered by pointing to state practice alone.

Then work the indirect routes separately, because that is where the marks are. Name which one you are using, and say what it requires. A single sentence gesturing at "Australia's international obligations" does nothing.

Check your understanding

Australia ratifies a convention this morning. Your client's case is heard this afternoon. Name two ways the convention might still affect the result, and say what each would require you to establish.