HCASJ|2025-11-10|Before: Steward J, Gordon J

The application for a proposed constitutional or other writ states that on six occasions the applicant produced to the Office of the United Nations High Commissioner for Human Rights ("the OHCHR") an individual communication for submission to a specified committee. The applicant states that the defendant variously "failed to bring [the communications] to resolution in compliance with relevant treaty provisions", "made known his refusal or failure to deal with the issues raised in the [applicant's] communications" or has not acknowledged the communications.
The applicant's complaint is, in substance, that the defendant has "refused or failed, and intends to continue to refuse or fail, to properly discharge his duties under [the] Privacy Act 1988 [(Cth)] and treaties to which Australia is a State Party" and that Ch III of the Constitution empowers this Court to command the performance of any duty imposed on any person by any treaty to which Australia is a party.
In correspondence exhibited to the applicant's affidavit, the registry of this Court expressed concerns to the applicant that he previously sought to file a related application that sought "almost identical relief and [was] drafted in substantially similar terms" and that leave to file that prior application was refused on the basis that it was "manifestly untenable" and would be an "abuse of process".[2] The applicant stated that he seeks, in his current application, different relief because his current claim is based on the defendant's refusal or failure to deal with his complaints, as opposed to the defendant's delay in dealing with his complaints.
Neither the application for a constitutional or other writ against the defendant, nor the applicant's supporting affidavit, discloses any rational legal argument that could support the relief sought. The claims set out in the proposed application against the defendant are manifestly hopeless and, therefore, an abuse of process. The applicant's contentions proceed on fundamental misunderstandings.

"Neither Art 22 of the Convention nor the Optional Protocol impose a duty on the defendant to resolve the relevant complaints without delay. The applicant has not identified any other basis for finding a duty owed by the defendant to resolve the complaints without delay. Accordingly, on the face of the application, the applicant is seeking to invoke this Court's jurisdiction on a basis that is 'manifestly untenable'."

Given that a document the subject of an application for leave to issue or file under r 6.07.3 of the High Court Rules is to be considered "on its face",[14] it is implicit that the application falls to be determined without an oral hearing.[15] The ex parte application filed on 1 October 2025 for leave to issue or file an application for a constitutional or other writ is refused.

[1] The applicant filed ex parte applications for leave to issue or file a constitutional or other writ in Matter Nos M65 of 2023, M8 of 2025, and M16 of 2025. The applicant filed applications for leave to appeal in Matter Nos M71 of 2023 and M30 of 2025. See also In the matter of an application by Jan Marek Kant for leave to issue or file [2025] HCASJ 5 and In the matter of an application by Jan Marek Kant for leave to issue or file [2025] HCASJ 16.

[2] See In the matter of an application by Jan Marek Kant for leave to issue or file [2025] HCASJ 16 at [10].

[3] See In the matter of an application by Leonard William Clampett for leave to issue or file [2024] HCASJ 5 at [7], citing Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 at 234 [35], [37], 246-247 [72]-[73].

[4] See Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 478.

[5] Industrial Relations Act Case (1996) 187 CLR 416 at 480-481.

[6] Constitution, s 51(xxix). See Industrial Relations Act Case (1996) 187 CLR 416 at 476.

[7] See, eg, International Covenant on Civil and Political Rights (1966); International Covenant on Economic, Social and Cultural Rights (1966); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).

[8] See, eg, Optional Protocol to the International Covenant on Civil and Political Rights (1966); Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2002).

[9] For example, Australia is a party to complaints mechanisms under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).

[10] Australian Human Rights Commission Act, s 3 definition of "human rights".

[11] See, eg, Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366.

[12] Privacy Act, s 12B(1) and (2), read with s 6(1) definition of "agency" and s 6C definition of "organisation".

[13] In the matter of an application by Jan Marek Kant for leave to issue or file [2025] HCASJ 16 at [10], citing Re Young [2020] HCA 13; (2020) 94 ALJR 448 at 451 [13]; [2020] HCA 13; 376 ALR 567 at 570.

[14] High Court Rules, r 6.07.1.

Human Rights Commission Act 1986

In the matter of an application by Jan Marek Kant for leave to issue or file [2025] HCASJ 40 (10 November 2025)

In the matter of an application by Jan Marek Kant for leave to issue or file [2025] HCASJ 40 (10 November 2025)

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In the matter of an application by Jan Marek Kant for leave to issue or file [2025] HCASJ 40 (10 November 2025)