//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1997] HCA 21
High Court of Australia
1997-05-21
Kirby J, Brennan CJ
Original judgment source is linked above.
High Court of Australia Kirby J Thorpe v Commonwealth (No 3) (M15/97S 97/003) [1997] HCA 21
Summary Aborigines - Declarations sought by plaintiff - Whether Commonwealth owes fiduciary obligation to Aboriginal people as original people of the land - Whether obligation owed by reason of alleged illegal invasion of the land, genocide and other wrongs - Whether obligation extends to require the Commonwealth to move United Nations General Assembly to obtain Advisory Opinion from International Court of Justice as to separate rights and legal status of Aboriginal peoples including their territorial sovereignty - Whether such fiduciary relationship requires the Commonwealth to negotiate with plaintiff with respect to obtaining Advisory Opinion - Whether declarations could or should be made. High Court - Practice and procedure - Jurisdiction - Constitution, ss 75, 76 - Whether a "matter" - Whether justiciable - Whether reasonable cause of action - Whether plaintiff has standing - Whether abuse of process. Constitution, ss 75, 76. Genocide Convention Act 1949 (Cth). ORDER
Mr Robert Thorpe (the plaintiff) is an Aboriginal Australian. He invokes the original jurisdiction of this Court. By a writ and statement of claim (the proceedings), he asks the Court to make three declarations concerning the Commonwealth of Australia.
Upon receipt of the writ the Commonwealth filed a summons (later amended) seeking various orders which would have the effect of terminating the proceedings. Mr Thorpe has made application for the issue of subpoenas and for other interlocutory relief. These depend on the outcome of the Commonwealth's summons. If the proceedings are stopped, or permanently stayed, the ancillary matters no longer arise.
Upon the first return of the Commonwealth's summons in Canberra, Mr Thorpe sought an adjournment and transfer of the proceedings to Melbourne. Over the opposition of the Commonwealth, I granted these requests. [1] When the proceedings were returned in Melbourne, Mr Thorpe sought a further adjournment. Alternatively, he sought orders that the case or questions raised by the summons be referred to a Full Court [2] or that the Commonwealth be directed to plead before the summons was determined. I refused Mr Thorpe the further adjournment and the other relief claimed. [3] I directed that the argument on the Commonwealth's summons proceed forthwith. So it did.
As in the earlier proceedings, out of respect for Mr Thorpe's stated difficulties and at his request, I permitted a legal practitioner (Mr Len Lindon) to supplement Mr Thorpe's own oral submissions and to assist him in the presentation of his arguments. Shortly after the summons was filed a further summons was lodged requesting that two Aboriginal Australians, Ms Elizabeth King and Ms Beryl Booth, be permitted to speak to the Court to supplement what Mr Thorpe said. That summons also sought an order that they be permitted to intervene in the proceedings. The summons was returned before me and considered before the proceedings in Melbourne commenced. The request for intervention was not insisted upon. However, with the consent of Mr Thorpe, Ms King and Ms Booth were allowed to speak. The Commonwealth did not press objections to the informal procedures thus adopted. My purpose was to ensure that, although Mr Thorpe was not formally represented by a legal practitioner, he could, with the assistance provided, put before the Court his essential submissions and respond to the matters put to him by the Court. So he did.
Mr Thorpe's writ makes claims for declaratory relief. Three declarations are sought. They state:
Declaration as to the Existence of the Fiduciary Obligation
a. the recently-admitted illegal invasion of their lands and the commission of war crimes; and
b. the general and continuing pre-meditated criminal genocide of their people; and
c. the genocidal effect of the longstanding official lie of terra nullius and the complicity of lawmakers and the judicial system in this fictitious and deceptive and only-recently-overturned claim.
Declaration as to the Extent of the Fiduciary Obligation
a. the common law entitlement to, and legal recognition of, their radical territorial sovereignty; and
b. whether there is any evidence that there has ever been their fully-informed consent, demonstrably free of duress and undue influence, to the jurisdiction of the Commonwealth of Australia and its Constitution, laws and courts; and
c. whether, in the absence of any such consent, their customary law (including trade, immigration and maritime matters) presently applies to, and is binding upon, the Commonwealth of Australia.
Declaration as to the Fiduciary Relationship in Preparing and Representing
a. the terms of the resolution to the UNGA seeking an Advisory Opinion from the ICJ, and
b. the form and consent of the preparation and presentation of the defendant's case before the ICJ, and
c. the plaintiff's desire to appear before the ICJ at the hearing for the Advisory Opinion to present evidence and legal submissions on the question.
In the writ, there follow assertions as to the jurisdiction of this Court. Subject to what I will later say, as the Commonwealth of Australia is a party sued by Mr Thorpe, this Court would have jurisdiction to determine Mr Thorpe's claim pursuant to s 75(iii) of the Constitution. Under the High Court Rules, and perhaps by virtue of its inherent jurisdiction, the Court has the power to make declaratory orders. [4]
Mr Thorpe's statement of claim states that he is "an original person of this land seeking clarification of my legal status and the legal status of my people, our law and the land". It then recounts the facts alleged to give rise to the dispute. These include assertions that the Commonwealth has "attempted through force of arms and deceit at all material times to impose its laws, courts and law enforcement upon the original peoples of this land" and has "failed to recognise" the rights of those peoples, including the rights of Mr Thorpe. In support of such allegations the statement of claim asserts that the Commonwealth had failed to negotiate a treaty with the "original peoples", failed to comply with their customary law and failed to "stop the genocide against the indigenous peoples of this land". The particulars of the genocide alleged include allegations of killings of members of Mr Thorpe's family, kin, clan, neighbours and people, and various other alleged wrongs including "[f]orcibly transferring children of the group to the defendant".
The statement of claim contains particulars of recent admissions allegedly made by or on behalf of the Commonwealth. It identifies a statement made by the then Prime Minister of Australia (the Hon P J Keating) at Redfern Park, Sydney on 10 December 1992. [5] As particulars of genocide, it refers to statements to the Human Rights Commission of the United Nations on 6 April 1997. It also relies on allegations concerning the previous law of terra nullius. The statement of claim cites the decision of this Court in Mabo [No 2]. [6] It then proceeds to contend that the foregoing assertions:
give rise to a perpetual fiduciary obligation on the Commonwealth of Australia to act in the best interests of the original peoples of this land with utmost good faith. 1. As quoted in the statement of claim, par 7, Mr Keating said: "[I]t was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion We failed to ask how would I feel if this were done to me? As a consequence, we failed to see that what we were doing degraded all of us." Keating, Launch of International Year for the World's Indigenous Peoples, Redfern, Sydney, 10 December 1992. 2. Mabo v Queensland [No 2] (1992) 175 CLR 1
There follows a statement that the Commonwealth cannot be trusted "to recognise and declare the sovereignty (customary law) of the indigenous peoples in accordance with international law and the laws of other civilised nations". Various other allegations and complaints are made about foreshadowed legislation allegedly designed to extinguish native title. This is said to arise out of political discussions following the decision of this Court in Wik Peoples v Queensland . [7] The statement of claim goes on to recite that this Court has "consistently ruled" that it has no jurisdiction to decide questions such as Mr Thorpe wishes to agitate. It states that, as provided by the Charter of the United Nations and as a member State of the United Nations Organisation, the Commonwealth, acting for Australia, has the power to propose a resolution to the General Assembly that it seek an Advisory Opinion from the International Court of Justice concerning the matters raised in the statement of claim. [8]
The statement of claim concludes with assertions that the Commonwealth is obliged by its fiduciary duty, "upon a request or demand by indigenous people", to act in the utmost good faith to secure "the best outside advice and opinion" and to negotiate with Mr Thorpe for the purpose of doing so. There is a reference to the consequences if the Commonwealth does not act speedily to "stop the genocide". The particulars of the loss claimed include "[r]eligious and spiritual violation"; "[e]motional and psychological trauma"; "[r]ent moneys owing from 29 April 1770 to 28 April 1997 and continuing"; "[i]nterest thereon"; "[e]conomic loss"; and general damages. A claim is made for aggravated and punitive damages on the basis of the Commonwealth's alleged "previous bad faith". Mr Thorpe also claims costs. The statement of claim ends as the writ began with the assertion of an entitlement to the three declarations set out above.
To a lawyer's eye a writ and statement of claim in the foregoing terms is highly irregular. It breaches many of the rules of pleading. However, Mr Thorpe is a litigant in person. The question is therefore whether, despite defects as to form, a viable claim exists which can stand against the Commonwealth's summons.
Mr Thorpe tendered a great deal of affidavit evidence. This related to various aspects of the statement of claim including the alleged acts of genocide, admissions made by or for the Commonwealth, wrongful removal of Aboriginal children from their families, actions of the Australian Human Rights and Equal Opportunity Commission, the Council for Aboriginal Reconciliation, the Standing Advisory Committee on Aboriginal Affairs to the Government of Victoria and opinions of historical and anthropological experts. By coincidence, Mr Thorpe's proceedings in Melbourne were heard on the day on which it became publicly known that the Human Rights and Equal Opportunity Commission had delivered to the Government of the Commonwealth its report upon the removal of Aboriginal and Torres Strait Islander children from their families. Although that report was then unavailable and could not be tabled in court, Mr Thorpe drew attention to newspaper reports concerning its findings. Since the hearing copy of the report has become available. [9]
The Commonwealth objected to all of the evidence tendered by, or read for, Mr Thorpe. It argued that none of that evidence was relevant to the issues raised by its summons. This Court has recently held that evidence may, in a particular case, be received in support of, or opposition to, an application seeking summary disposal of proceedings. In Croome v Tasmania , [10] the plaintiff tendered affidavits to show how the law of the State of Tasmania, challenged by him, affected him. Such evidence was relevant to the question of standing (which was ultimately conceded in that case) but also to the question whether the plaintiff had presented for decision a "matter" within the meaning of s 76 of the Constitution. The evidence in that case lent concrete substance to the plaintiff's claim that he was seeking from the Court "declaratory relief directed to the determination of legal controversies, not to answering abstract or hypothetical questions". [11] I received Mr Thorpe's evidence for the same reasons, subject to its later being shown to be relevant. However, in the end, such evidence does not avail Mr Thorpe because of the nature of the declaratory relief claimed by him.
The amended summons for the Commonwealth sought orders, expressed in the alternative, that:
The Commonwealth sought ancillary orders, including that provision be made for time for pleading to any part of the statement of claim that remained on foot, and for costs. In its argument in support of the summons, the Commonwealth substantially relied upon written submissions which had been provided to the Court and to Mr Thorpe in advance of the hearing.
As to jurisdiction, it was pointed out that the Constitution requires there to be a "matter" to attract the Court's jurisdiction. This has been interpreted to mean "some immediate right, duty or liability to be established by the determination of the Court". [12] The Commonwealth submitted that the declarations claimed by Mr Thorpe did not involve any immediate legal rights, duties or liabilities of any person or body. Nor did they seek to challenge the validity of any legislation by reference to the Constitution. In this respect, the relief sought was quite different from that claimed in Croome . The declarations involved abstract and notional claims. There was therefore no "matter". Accordingly, there was no jurisdiction in the Court.
So far as standing was concerned, the Commonwealth argued that, even assuming that there was some public right or duty at issue in the proceedings to take the case out of the category of private litigation, Mr Thorpe had demonstrated no right or interest of his own other than that he was "an original person of this land". In Croome , [13] Gaudron, McHugh and Gummow JJ pointed to the common "interdependence of the notions of "standing" and of "matter" ". In this respect, Australian law has developed along lines similar to the interpretation of Art III of the Constitution of the United States of America. This limits the exercise of the judicial power to "cases" and "controversies". Those concepts, as interpreted, have repeatedly involved emphasis upon the "core component of standing". [14] Even within the context of a general legal trend for the broadening of standing rules, [15] the Commonwealth disputed that Mr Thorpe's ethnicity as an Aboriginal Australian was sufficient, without more, to accord standing for the kind of relief claimed in his proceedings.
Next, the Commonwealth drew attention to the decision of Mason CJ in Coe v The Commonwealth . [16] That was a native title claim where Ms Coe had asserted a number of matters in her process. These included the alleged sovereignty of the claimants either as "a nation of people" or as "a domestic dependent nation". Ms Coe also alleged acts of genocide against ancestors of the claimants and fiduciary obligations owed to the claimants by the Crown in right of the State of New South Wales, for which the Federal and State Governments were liable to be sued. The statement of claim was struck out by Mason CJ although leave to file and serve an amended statement of claim was granted. The claims, as pleaded, were found not to disclose a reasonable cause of action. [17] In particular, the attempt to establish a notion of sovereignty adverse to the Crown was found not to be one which an Australian court could uphold. [18]
To the extent that Mr Thorpe, by his proceedings in this case, urges similar notions upon the Court, he obviously encounters the same difficulties. By seeking to invoke the jurisdiction of this Court he can only expect it to apply the law which governs it. For relief of a different kind, based upon other law, he must go elsewhere.
The Commonwealth contended that, so far as the declarations sought relied upon Australia's obligations under international law, they involved claims which were not justiciable at the suit of Mr Thorpe. [19] Instead, they were purely political in character, apt for agitation before the other branches of government and before the Australian community but not before the judicial branch of government. [20]
Finally, the Commonwealth submitted that the proceedings were "frivolous and vexatious". The allegations of genocide relied upon by Mr Thorpe did not found any cause of action known to the law. They were asserted as consequences of the alleged failure on the part of the Commonwealth to recognise "the plaintiff's rights" and "the rights of the original people of this land". Because the latter were legally irrelevant, they were vexatious in the legal sense. The pleading in which they appeared was embarrassing. The Commonwealth itself relied upon the pleading and affidavits of Mr Thorpe to demonstrate that his dominant or real purpose in bringing the proceedings was not to litigate the claims contained therein to a successful conclusion in an Australian court but rather to assist him in a political campaign to promote his perspective of the interests of Aboriginal people. To that extent, the proceedings constituted an abuse of process which the Court, out of its inherent power, should stay permanently. Alternatively, it was suggested, in reliance upon some of the submissions put to the Court for Mr Thorpe, that his real purpose in bringing the proceedings was to demonstrate that he had exhausted the domestic remedies afforded to him by Australian law. This is often a requirement of international bodies before they will exercise their own powers on the complaint of a person in a participating country. [21] In that event too, I took it to be suggested that Mr Thorpe's conduct demonstrated a purpose other than to litigate a real dispute about a legal claim apt for curial resolution. It was, instead, a political action to be continued by him for political purposes in international fora.
Subject to the provisions of Article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.
See Akhavan, "Enforcement of the Genocide Convention through the advisory opinion jurisdiction of the International Court of Justice" (1991) 12 Human Rights Law Journal 285 at 296-297.
Whilst the Commonwealth adhered to the various ways in which it put its objections to Mr Thorpe's proceedings, and left it to the Court to choose which basis of objection, or combination of them, would apply to bring the proceedings to an end, most of the oral submissions for the Commonwealth concentrated upon the suggested lack of a "matter". This was natural enough because establishing a "matter" is essential to the jurisdiction of this Court. The Commonwealth also emphasised the lack of a viable cause of action as disclosed in the pleadings and the absence of any justiciable claim upon the basis of which the Court could afford Mr Thorpe the declarations which he was seeking, or anything remotely like them.
A good deal of the oral submissions by, on behalf of and in support of, Mr Thorpe laid emphasis upon the wrongs done to the Aboriginal people of Australia, including by the legal system of which, I was reminded, this Court is part. Mr Thorpe referred to the special wrongs done by the removal of Aboriginal children from their families (the so-called "Stolen Generation") of whom Ms King stated she was one. This Court in 1996 heard two matters concerning the removal of Aboriginal children from their families. I refer to Kruger v The Commonwealth and Bray v The Commonwealth , which stand for judgment. I did not participate in the hearing of those cases. I am unaware of the matters which were argued there. Counsel for the Commonwealth tendered part of the submissions for the Commonwealth in Kruger and Bray . From this document it appears that the plaintiffs in those matters relied upon an alleged "crime against humanity of genocide". [22] As recorded, it was submitted that this entitlement derived from the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (the Genocide Convention). That Convention was ratified by Australia in 1949, pursuant to the Genocide Convention Act 1949 Cth, which authorised that course. The Genocide Convention came into force on 12 January 1951. The Genocide Convention Act did not enact that the Genocide Convention became part of Australia's domestic law. Although that step has been recommended it has not, so far, been taken. [23] The definition of "genocide" in the Convention is very broad. [24] Without entering into the detail, in the cases of Mr Kruger and Mr Bray, specific relief, personal to each of them, is apparently claimed in reliance upon the Genocide Convention and Australian law so far as it is said to apply it. The particularity of the relief claimed by those plaintiffs contrasts markedly with the relief claimed by Mr Thorpe. In Mr Thorpe's case, the relief involves the three declarations. Although in the statement of claim damages, rent, interest and other remedies are referred to, Mr Thorpe's proceedings before me were conducted on the footing (appropriate to the writ) that everything asserted and claimed was subsidiary to the three declarations. They stated what he was really asking the Court to order.
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
References to "cultural genocide" were omitted from the draft of the Genocide Convention in the course of its formulation. See Cassese, Human Rights in a Changing World, (1990) at p 76; Kunz, "The United Nations Convention on Genocide" (1949) 43 The American Journal of International Law 738 at 742. See also International Covenant on Civil and Political Rights 1966, Art 27; International Covenant on Economic, Social, and Cultural Rights 1966, Art 15(1)(a); Convention on the Rights of the Child 1989, Arts 29 and 31.
It was submitted for Mr Thorpe that, far from being vague, indeterminate and nebulous (as the Commonwealth complained) Aboriginal Australians (including Mr Thorpe) found the formulation of relief expressed in the three declarations perfectly clear and admirably specific. A fiduciary duty was owed by the Commonwealth to Mr Thorpe as to other Aboriginal Australians. In pursuance of that duty, the Commonwealth, as the government of Australia, an international person, was obliged (or should be rendered so by order of this Court) to procure, as best it could, an Advisory Opinion from the International Court of Justice. It could do this by moving a resolution to that effect in the General Assembly of the United Nations. The declaration that the Commonwealth was obliged to consult with Mr Thorpe in the formulation of the question for the Advisory Opinion and in the presentation of the case in the International Court, facilitating his part therein, was also concrete and specific. It demanded acts of appropriate particularity which were readily understandable, easily defined and sufficiently specific.
Mr Lindon, who was helping Mr Thorpe (and may have had some part in the drafting of his pleadings) is the same person as earlier took part in proceedings in this Court, at first under the name of Limbo [25] but later under his own name. [26] Mr Lindon stated that he had learned from the criticisms of the generality and high level of abstraction of his earlier process which I had mentioned in Lindon v The Commonwealth [No 2] . [27] An attempt had therefore been made in Mr Thorpe's case to present the proposed declarations with appropriate precision. It was submitted that the relief claimed might be good or bad in law but it could not fail for want of specificity or for excessive abstraction.
Mr Thorpe and Mr Lindon each confirmed that the fiduciary duty claimed in the first declaration was anterior to, and for the purposes of, the two succeeding declarations. These stated the essential relief sought. This Court could command a party before it, including the Commonwealth, to do what was ordered and what the law and the interests of justice required. In appropriate circumstances that could extend to the bringing or abandonment of proceedings in a domestic court, tribunal or other body. There was no reason why it could not extend to the initiation of proceedings before the International Court of Justice. An appropriate vehicle for doing this (there being no other State or international organisation to be proceeded against) was to seek an Advisory Opinion. Relevantly, that could be done by procuring a resolution for that purpose from the General Assembly of the United Nations. [28]
As to consulting and involving Mr Thorpe in the foregoing steps, this was also far from abstract. Both the Commonwealth and Mr Thorpe were before the Court. They could each be rendered subject to the Court's orders. A declaration framed to make clear the duties of the Commonwealth in discharging the second declaration arose out of the first. So went the plaintiff's submissions.
The approach to be taken to the applications in the Commonwealth's summons is not in doubt. It was not the subject of detailed submissions in this case. This is doubtless because of the recent restatements of the principles including by me and including in a case involving Mr Lindon. [29]
Setting aside, striking out, summarily dismissing or permanently staying proceedings of a litigant who has come to a court of law, are self-evidently serious steps. They are to be reserved to a clear case. If there is any doubt, a court should err on the side of allowing the claim to proceed. Evidence at trial may sometimes lend colour and strength to a claim. Reformulation of a pleading should normally be permitted where justice requires that course, particularly where a party does not have the assistance of legal representation. A court will ordinarily provide some assistance in such a situation although not to the point of unfairly disadvantaging the other party or losing either the reality or appearance of neutrality and impartiality which is the hallmark of the judiciary under the Australian Constitution and under international human rights law. [30]
Even if a party makes good its attack on another's pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility. [31] The guiding principle is doing what is just. Courts, particularly today, strive to uphold efficiency and economy in the disposal of proceedings before them. [32] But they also remember that pleadings are a means to the end of justice according to law. Pleadings are the servants, not the masters of the judicial process.
I did not take any of these principles to have been disputed by the parties. I approach the Commonwealth's summons with the applicable principles in mind. I also remember that, as the decisions of this Court in Mabo [No 2] [33] and Wik Peoples v Queensland [34] demonstrate, sometimes Australian law (including as it affects Aboriginal Australians) is not precisely what might earlier have been expected or predicted. Australian law at this time is in the process of a measure of re-adjustment, arising out of the appreciation, both by the parliaments and the courts of this country, of injustices which statute and common law earlier occasioned to Australia's indigenous peoples. In such circumstances, it is appropriate for a court, including this Court, to be cautious in striking out or terminating proceedings, including those brought by such parties which, in the fullness of time, might, with evidence, elaboration and detailed argument, contribute to the process of re-adjustment.
I mentioned this consideration in proceedings in which I participated in the New South Wales Court of Appeal before joining this Court. [35] That was a case involving an application for an extension of time under the Limitation Act 1969 NSW by a woman of Aboriginal descent who had been taken from her parents and placed in a home for "white" children because she was fair skinned. The trial judge had struck out her claim. However, the Court of Appeal [36] ordered the extension sought. I said, in words to which I adhere: [37]
The law which has often been an instrument of injustice to Aboriginal Australians can also, in proper cases, be an instrument of justice in the vindication of their legal rights. It is not just and reasonable in this case to close the doors of the Court in Ms Williams' face. She should have her chance to prove her case. She might succeed. She might fail. But her cause will have been heard in full. It will then have been determined as our system of law provides to all Australians - Aboriginal and non-Aboriginal - according to law, in open court and on its merits. 1. Williams v Minister , Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497. cf E (A Minor) v Dorset County Council [1995] 2 AC 633 at 693-694, per Bingham MR; approved X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 740-741, per Lord Browne-Wilkinson; applied Mulcahy v Ministry of Defence [1996] 2 WLR 474 at 477-478 2. Priestley JA and myself; Powell JA dissenting. 3. Williams (1994) 35 NSWLR 497 at 515
Mr Thorpe is entitled to no lesser right provided his writ attracts the jurisdiction of this Court and the claims which he makes do not fall to the multiple attacks which the Commonwealth mounts against them.
The starting point for an examination of the viability of the proceedings is a consideration of the claim in the first declaration that the Commonwealth owes a fiduciary obligation to the "original peoples of this land".
In the United States of America it has been held that a fiduciary relationship exists in certain circumstances between the United States and the Indian tribes. [38] It would appear that such relationship was found on the basis that the tribes, as domestic dependent nations, had sought and received the protection of the United States, a more powerful government. [39] A fiduciary duty with respect to the lands of indigenous peoples has also received a measure of acceptance in Canada. [40] In the context of land surrendered to the Crown by Aboriginal groups, it has been held that a trust-like relationship was established. Indeed, in Canada it has been suggested that the Crown has a broader responsibility to act in a fiduciary way towards indigenous peoples arising out of the Crown's historical powers over, and assumption of responsibility for, such peoples within its protection. The recognition of Aboriginal rights within the Canadian Constitution has also been invoked as a foundation for a fiduciary relationship. [41]
So far, this approach has not gathered the support of a majority in this Court. The holding in Mabo [No 2] [42] did not rest upon any fiduciary obligation owed by the Crown to the indigenous peoples of Australia. Toohey J alone found a fiduciary relationship arising, as his Honour expressed it, "out of the power of the Crown to extinguish traditional title by alienating the land or otherwise". [43] His Honour acknowledged that a fiduciary obligation in the Crown did not limit the legislative power of the parliaments of Australia to derogate from that relationship. However, any such legislation (and presumably any rule of common law) in derogation would be a breach of the fiduciary obligation "if its effect is adverse to the interests of the title-holders, or if the process it establishes does not take account of those interests". [44]
In the same case Dawson J concluded in that any fiduciary obligation of the kind that had been recognised in Canada, was dependent upon the subsistence of a particular legal interest, namely an Aboriginal interest existing in or over land. [45] Neither Toohey J nor Dawson J considered whether a fiduciary relationship existed in abstracto. Each addressed the question as it was relevant to the precise claim to interests in the land under consideration in Mabo [No 2]. Although in Wik Peoples v Queensland arguments were advanced based upon an alleged fiduciary obligation owed by the Crown to the indigenous peoples before the Court, [46] once again this Court disposed of the matter without resolving whether such an obligation existed and, if it did, whether it entitled the Aboriginal claimants to relief in that case.
The result is that whether a fiduciary duty is owed by the Crown to the indigenous peoples of Australia remains an open question. This Court has simply not determined it. Certainly, it has not determined it adversely to the proposition. On the other hand, there is no holding endorsing such a fiduciary duty, still less for the generality of the claim asserted in the first declaration in Mr Thorpe's writ. There are many difficulties in that claim. It suffices to mention some of them:
(1) The bases for the fiduciary obligation identified in the writ include events which occurred (the illegal invasion) or which originated (the longstanding official lie of terra nullius) long before the establishment of the Commonwealth. It is not immediately clear (nor is it pleaded) how the Commonwealth would be liable in law for such acts. [47]
(2) The notion of a fiduciary duty has developed in Australia along lines different from those taken by the courts in the United States and Canada. Care must therefore be exercised in invoking the authority of such courts to establish a fiduciary relationship in Australia where this is contested. [48]
(3) Nor is it clear why, as seems to be Mr Thorpe's assertion, he should be permitted to commence what appears to be a representative action when his right to do so, in effect, on behalf of all Aboriginal Australians is not at all plain (and is not pleaded). [49]
(4) Most fundamentally, the claim for the first declaration is, as was properly acknowledged, not intended to stand alone. On the present authority of this Court, it could not do so. In In re Judiciary and Navigation Acts, [50] the Court made it clear that it could not make a declaration "divorced from any attempt to administer that law". Were an attempt made to secure a declaration of legal right in the general terms of the first declaration, standing alone, it would have to be rejected. Such a claim would not present a "matter" for judicial decision. It would not seek "some immediate right, duty or liability to be established by the determination of the Court". [51]
During argument, it was submitted that the Court would, at least, allow the pleading to stand with respect to the first declaration. If necessary, it would sever that declaration from the remainder and permit, in effect, the issue presented by Toohey J's opinion in Mabo [No 2] to go forward for judicial determination in this case. I cannot agree. A declaration limited to that sought in par 1 of Mr Thorpe's writ would, on its own, be entirely theoretical. This Court from its earliest days has indicated that it will not act in that way. At some future time the detail of this jurisprudence may warrant reconsideration by the Court. [52] However, it is inconceivable that such reconsideration would arise on a vehicle presented by Mr Thorpe's writ confined to the first declaration.
For these reasons, the first declaration cannot stand alone. It either survives or falls, depending upon the fate of the two succeeding declarations. I therefore turn to these.
Mr Lindon, speaking for Mr Thorpe, acknowledged that there was no precedent for the kind of declarations sought in pars 2 and 3 of the writ. Nor was there any case, of which he was aware, where a court in Australia or overseas, had made declarations in any way similar to those in pars 2 and 3. This is not necessarily fatal. But it does suggest that making declarations of this kind is not an ordinary or typical court-like activity. Closer analysis confirms that this is so.
What Mr Thorpe is, in effect, seeking, by the second and third declarations, is that this Court should set out to control the way in which the Commonwealth conducts Australia's international relations. I leave aside entirely the difficulty of the chosen form of relief, namely declarations. I assume for present purposes that, were such declarations to be made, the Commonwealth would seek to conform to their terms in order to comply with the Court's declaration of its legal duty. However, in no case that could be cited, nor any that I have discovered in my own researches, has this Court purported to intrude in such a way in the conduct of Australia's international activities. The reason why no such case could be found is plain enough although the explanation may be advanced in various ways. It might be said that the subject matters of the declarations are not the kind of "immediate right, duty or liability" grounded in a legal norm which would present a "matter" to enliven the jurisdiction of this Court under the Constitution. [53] This was the Commonwealth's primary argument. But it might also be said that the issues presented by the declarations lacked "judicially discoverable and manageable standards for resolving" [54] a justiciable issue. Traditionally in this country, [55] as under like constitutional provisions in the United States, [56] the courts have been extremely reluctant to pass upon the conduct of international relations. As a matter of history, this reluctance is probably inherited, in Australia at least, from the traditional approach of the courts of England in reviewing the exercise of the prerogatives of the Sovereign, including in the conduct of relations with other States. [57] Gummow J pointed out, when a Judge of the Federal Court of Australia, [58] that care must be exercised in the use of English authority on this point because the source of power in Australia to conduct relations with other States (and with international organisations) resides in the Constitution of which this Court is the guardian, not (at least normally) in the residue of the prerogatives of the Crown.
The Commonwealth argued that this Court would never make declarations 2 and 3 as sought, or anything like them. To do so would involve a wholly impermissible invasion of the constitutional prerogatives of the Executive Government of the Commonwealth. By s 61 of the Australian Constitution, the executive power of the Commonwealth is vested in the Queen. That power extends to all executive action appropriate to the spheres of responsibility vested in the Commonwealth. As Gummow J pointed out in Re Ditfort : [59]
One such sphere is the conduct of relations with other countries, including the acquisition of international rights and obligations, and in this sphere the executive power of the Commonwealth is exclusive of that of the States. [60] 1. Re Ditfort (1988) 19 FCR 347 at 369 2. He cites Australia Act 1986 Cth, s 2; R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 643-644 Zines, "The Growth of Australian Nationhood and Its Effect on the Powers of the Commonwealth" in Zines (ed), Commentaries on the Australian Constitution (1977), Ch I.
Different views may exist as to the scope of justiciability and the delineation of questions marked off as "not justiciable". [61] In Re Ditfort , Gummow J was disinclined to surrender entirely the reviewability of executive conduct against the touchstone of the Australian Constitution, even in matters of international relations. [62] It may be that, in an extreme case, difficult to imagine, a court might hold that particular executive conduct went beyond the constitutional warrant although the Commonwealth supported it by reference to the conduct of external affairs. However that may be, the essential point to which most judicial authority on this question returns is one grounded in the separation of powers which the Constitution mandates.
Brennan J explained this in Re Limbo where, "Citizen Limbo" (Mr Lindon) had sought declarations that certain acts of, and omissions by, the Commonwealth were contrary to international law (including the Genocide Convention). Brennan J said: [63]
[W]hen one comes to a court of law it is necessary always to ensure that lofty aspirations are not mistaken for the rules of law which courts are capable and fitted to enforce. It is essential that there be no mistake between the functions that are performed by the respective branches of government. It is essential to understand that courts perform one function and the political branches of government perform another. One can readily understand that there may be disappointment in the performance by one branch or another of government of the functions which are allocated to it under our division of powers. But it would be a mistake for one branch of government to assume the functions of another in the hope that thereby what is perceived to be an injustice can be corrected. Unless one observes the separation of powers and unless the courts are restricted to the application of the domestic law of this country, there would be a state of confusion and chaos which would be antipathetic not only to the aspirations of peace but to the aspirations of the enforcement of any human rights. 1. Re Limbo (1989) 64 ALJR 241 at 242
The proposed plaintiffs seem to have mistaken the branch of government to which their plea must be directed. However disappointing it may be to have their pleas directed to the political branches of government but rejected, their pleas are political pleas This Court cannot assume a function of determining the truth of political issues unless those issues are critical to the existence of some power. The statement of claim provides no foundation for expecting that such a foundation is alleged or would be made out. 1. Re Limbo (1989) 64 ALJR 241 at 243
Those words apply to the present case. It is true, as Mr Lindon said for Mr Thorpe, that the mere involvement of a political or controversial question does not mean that a court lacks jurisdiction, that a controversy is not a "matter" for the purpose of the Constitution, that a cause of action lacks viability or that the issue tendered is non-justiciable. In Melbourne Corporation v The Commonwealth [65] Dixon J pointed out:
The Constitution is a political instrument. It deals with government and governmental powers. The statement is, therefore, easy to make though it has a specious plausibility. But it is really meaningless. It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described, but whether they are compelling. 1. Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82
This is not the case in which to explore the question of justiciability and the relevance of the "political questions" doctrine developed around a similar constitutional language and structure in the United States. [66] In Baker v Carr , Brennan J of the Supreme Court of the United States, delivering the judgment of that Court, acknowledged that many questions touching foreign relations would fall within that doctrine: [67]
Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government's views. 1. See Baker v Carr (1962) 369 US 186 at 208-211See discussion in Gerhardy v Brown (1985) 159 CLR 70 at 139 2. Baker v Carr (1962) 369 US 186 at 211(footnotes omitted). See also Henkin, "Is There a "Political Question" Doctrine?" (1976) 85 The Yale Law Journal 597 .
However, the Court went on there to suggest that it was an "error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognisance". [68] This conclusion reflects that to which Gummow J came in Re Ditfort . [69] It takes the judge, hearing a contested argument about justiciability, to the foundation of that principle. That foundation lies in the separation of powers required by the Constitution. Is the question tendered, of its nature, such as is apt to a court performing court-like functions? If it is not, it matters little in practical terms whether the court, facing an objection, rules that it lacks jurisdiction for want of a "matter" engaging its powers, or that it says that any such "matter" would be non-justiciable. In either event, the court's duty is plain. It should stop the proceedings forthwith. It will thereby send the parties to the other branches of government, or to other public fora, in which they can make their complaint.
Logically, the determination of the existence of a "matter" might properly come first because upon the resolution of that question will depend the jurisdiction of the court. That is a question which a court should always establish at the threshold if jurisdiction is challenged or is otherwise in doubt. Without disposing of the many other grounds of objection raised for the Commonwealth, I would deal with this summons on that basis.
For Mr Thorpe it was argued that, to send him and his supporters to the executive government or to the parliament of the Commonwealth or to other fora would be fruitless. That is why Mr Thorpe, like others before him, had appealed to the courts. The courts should not close their doors. Least of all should they do so to a claim founded on alleged acts of genocide which, it was asserted, given the chance, Mr Thorpe could prove. In such a case, this Court, by international law, enjoyed a jurisdiction, if necessary beyond the scope of the jurisdiction conferred upon it by the Australian Constitution. [70] Its jurisdiction was therefore not, in this particular, limited to the determination of "matters". Something more fundamental was raised which engaged the Court's attention as the ultimate tribunal of Australian law.
These submissions cannot be accepted. The Court whose jurisdiction Mr Thorpe has invoked is created by the Australian Constitution. It is bound to act within the powers conferred by that instrument. To the extent that any larger powers were suggested, they are not, unsurprisingly, to be found in the Genocide Convention Act. Any "universal jurisdiction" afforded to this Court by international law [71] could only be discharged by the Court in a way that was compatible with the Australian Constitution and with the function of this Court within the Australian Commonwealth. The Court may not take upon itself the function, by the declarations sought by Mr Thorpe, in effect to require the Commonwealth on behalf of Australia to act in particular ways in relation to the organs of the United Nations. This Court has never done this. It should not start now.
The Court has no knowledge of the many considerations which would have to be taken into account in deciding whether Australia should seek such a resolution from the General Assembly. It has no means of knowing how any such application would affect Australia's international relations generally or its relations with particular countries or its other activities within the United Nations and its agencies. These are all matters which the Australian Constitution reserves to the executive government of the Commonwealth. They defy judicial application. They turn on a multitude of considerations unknown to this Court. They are matters upon which the Australian Government speaks to the international community with a single voice. That voice is the voice of the executive government chosen from the Parliament elected by the people of Australia. It is not the voice of this Court.
Mr Thorpe's proceedings present no "matter" to this Court susceptible of judicial determination. For the reasons already given there is no point in severing the first declaration on the claimed fiduciary obligation. Nor would it be justifiable to do so. Left standing alone, it too would present no "matter".
I am conscious of the desirable practice (particularly where a litigant is not formally represented by a lawyer) of allowing pleadings to be recast if a consideration of the Court's opinion, more time and possibly more refined legal advice hold out the prospect of a new pleading which would meet the requirements of the law. This, after all, is what Mason CJ ordered in Coe v The Commonwealth . [72] But that was a very different case where a specific claim was made for native title over land within Australia on behalf of identified persons. I can see no way that the indelible defects of Mr Thorpe's proceedings could be erased so as to present a "matter". Any such revision would necessarily present to this Court a completely new and different claim. [73]
Several applications made by Mr Thorpe for the issue of subpoenas directed to the Prime Minister, Deputy Prime Minister and others must be rejected consequential upon the setting aside of his claim. During the second adjournment application, the Commonwealth held out the prospect of agreeing to a waiver of costs upon Mr Thorpe's agreeing to a consent order disposing of his claim. When this offer was rebuffed and the claim proceeded to a hearing, the Commonwealth pressed an application for its costs. Mr Thorpe submitted that costs should not be ordered. He referred to his limited means as a university student, the undoubted seriousness of the claims of deprivation, loss and genocide, his status as an Aboriginal Australian and the importance of having his entitlements to relief determined by the highest court in the land for his own sake and that of many Aboriginal people.
I have some sympathy for Mr Thorpe. I do not doubt the sincerity of his convictions. Indeed, his sincerity was not challenged by the Commonwealth. But the normal rule in a proceeding of this kind is that costs follow the event. That rule has the beneficial consequence of discouraging imperfect and misconceived proceedings. Such proceedings take up the time of the Court. In doing so, they have inevitable consequences upon other litigation awaiting hearing. To refrain from ordering costs would, in effect, burden the taxpayer with the entirety of the costs of resisting a writ and statement of claim found to be misconceived and fatally flawed. I can see no proper basis for departure from the ordinary rule.
Thorpe
Commonwealth
(1997) 71 ALJR 708
(1996) 71 ALJR 430
(1992) 175 CLR 1
(1996) 187 CLR 1
(1921) 29 CLR 257
(1980) 146 CLR 493
(1995) 183 CLR 552
(1993) 68 ALJR 110
(1982) 148 CLR 636
(1982) 153 CLR 270
(1989) 64 ALJR 241
(1996) 70 ALJR 541
(1949) 78 CLR 62
(1964) 112 CLR 125
(1979) 53 ALJR 403
(1992) 30 NSWLR 1
(1994) 68 ALJR 169
(1997) 71 ALJR 448
(1997) 71 ALJR 294
(1994) 35 NSWLR 497
(1996) 186 CLR 71
(1996) 185 CLR 595
(1991) 173 CLR 289
(1982) 153 CLR 168
(1983) 158 CLR 1
(1987) 15 FCR 274
(1988) 19 FCR 347
(1936) 55 CLR 608
(1947) 74 CLR 31
(1985) 159 CLR 70
(1982) 153 CLR 25