Bicket & Ors v Beazley

[1989] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Registry No Cl2 of 1989

B e t w e e n -

JEANE BICKET, JACOB GRECHi

WANDA DE VERELLE HILL, CITIZEN LIMBO,

THOMAS MEASHAM, BARBARA MEYER,

GISELA MEYER, SARAH PURNELL,

JUSTINE SHELTON, "SAFE" (STOP ARMS

FOR EXPORT) CAMPAIGN

Applicants

and

Klli BF.AZLEY, GARETH EV ANS ,

CO1:1MONWEALTH OF AUSTRALIA, OFFICE OF

DEFENCE PRODUCTION, AUSTRALIAN TRADE

CO1:1MISSION, DESIKO PTY LTD,

AUSTRALIAN DEFENCE MANUFACTURERS
COUNCIL, DEFENCE MANUFACTURERS

ASSOCIATION OF AUSTRALIA, CONFEDERATION

OF AUSTRALIAN INDUSTRY, ASSOCIATION OF

AEROSPACE INDUSTRIES, AUSTRALIAN

CHAMBER OF MANUFACTURERS

Respondents

Ex parte application for waiver

of fees under Order 72 rule 12

Limbo

BRENNAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 28 NOVEMBER 1989, AT 10.26 AM

Copyright in the High Court of Australia

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MR LIMBO:	Your Honour, I am Citizen Limbo.	The application

is made by all the plaintiffs and they have appointed

me to speak basically to you through them. If I

may introduce them to you, sir. They are in order as

they are listed on the head sheet of the case and they

are sitting in order so that, as we move across, you

will see they follow down. This is Jeane Bicket. This

is Wanda De Verelle Hill, myself, Thomas Measham,

Barbara Meyer, Gisela Meyer. Unfortunately Sarah Purnell

is working; she is a part-time child care worker. On the
end is Justine Shelton.

HIS HONOUR: Is there a Jacob Grech?

MR LIMBO: Sorry, yes, he is now in Court. There are no chairs

left so he might come and sit down behind the bar table.

••

HIS HONOUR:  You are making this application on behalf of all

of those persons?

MR LIMBO:	We are making the application together, sir, but for reasons of efficiency and your time, I am going to
speak to you.
HIS HONOUR:	Yes, very well.
MR LIMBO:	There are some further affidavits to be tendered

in this matter but we have been rather busy coping with some results of police violence at the demonstration on

Sunday which you may have seen on the front page of

yesterday's Canberra Times.

HIS HONOUR:  I am not interested in matters other than the

application to this Court, nor will I hear matters other

than the application to this Court.

MR LIMBO:  Thank you, sir. I am only explaining that because

in my affidavit I undertook to file these affidavits by

yesterday morning at 10 o'clock and I have been rather busy on a matter so I apologize for that. I wonder if

these affidavits could be handed up by each plaintiff

and they could just affirm that they are their affidavits.

They are basically brief affidavits as to means.

HIS HONOUR:  Yes.

Tl MR LIMBO: So perhaps Jeane - would you require them to say theQr name and affirm, sir, or me to just present them
to you.

H:  HONOUR: Is the affidavit ready for presentation?

MR LIMBO:  None of these affidavits have actually been sworn

but because the plaintiffs are here in person they

could hand them up as a shorthand way of giving the

evidence as to their means that could be given, in my

submission - - -

C3T2/l/RB	2	28/11/89
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HIS HONOUR:  No, I do not propose to receive that which is not

an affidavit.

MR LIMBO:  Thank you. Would you be prepared to accept them

as a statement from the plaintiff to you as to their

means without - or perhaps by actually each one going

in the witness box and saying "This is my statement".

They are basically very brief statements as to their

weekly incomes.

HIS HONOUR:  And this is to establish that there is not

sufficient means in all of the plaintiffs to pay the

filing fee?

MR LIMBO:	Yes, and the argument -
HIS HONOUR:	What is the amount of the filing fee?
MR LIMBO:	$300, Your Honour, and as I say in my affidavit, we

are all low income people and such discretionary income

as we have had available has gone to the production of

leaflets and information material.

HIS HONOUR:  I do not understand what is meant by discretionary

income.

MR LIMBO:  Income that is available after we have spent the

money that you have available for rent, food and

essentials, public transport and that sort of thing.

HIS HONOUR:	Yes.
MR LIMBO:	It is made clear from the minutes of meeting

which have been held since May in this matter that -

basically, sir, I do not know if you have had a chance

to read the papers in this matter but perhaps you could

indicate if you have had a chance to read them and I

will not go over familiar ground.

HIS HONOUR:  I have read them, yes. I have not read the

annexures. I have read the ex parte summons; the affidavit

of Citizen Limbo; the proposed writ and the proposed

statement of claim so far as those are typed but I have

not read the annexures to any of those documents.	So
that is the state of my knowledge.

MR LIMBO:  Thank you. I was not sure if it was appropriate to

annex things to a statement of claim, but some advice
from the Registry staff that would be appropriate so it

may not be, but that is where we are at~ I have here

minutes of meetings from the Stop Arms for Export campaign.

Once again, in my affidavit you will see I referred to the fact that these minutes would be lodged, annexed to an af~idavit yesterday morning at 10 o'clock. These minutes

are from regular meetings either once a month or once
every two weeks since May and many of the plaintiffs here

are mentioned by name, Justine Shelton, Sarah Purnell - - -

C3T2/2/RB	3	28/11/89
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HIS HONOUR:  What is the purpose of tendering these?

MR LIMBO: This shows that, in my submission, a group of

concerned citizens have been meeting regularly, which
has cost them some expense to get there when you are

low income without transport, and also that it shows the amounts of money, $20, $30, $100, that have been

put towards printing of informational material that is
not generally available so that the public could be made

aware of what we say are some of the crucial facts in this

matter. So that basically the plaintiffs and the SAFE

campaign have opted to put their meagre dollars into

public information rather than into court fees, on the

basis that if there is any merit in the assertion that this

is a matter of great public interest, that the more people

that knew about the facts would probably in the short term

be more productive than going into a legal limbo

situation.

Because the Court does have a discretion to, in

some matters, waive court fees, whereas printers do not

necessarily waive their printing fees, and sticker
printers do not waive their fees, it seemed that we would

have more chance of making submissions to a Judge who would deal with the matter fairly and is empowered to

have that discretion rather than connnercial operators

who would not hear that submission.	So that is the state
of play.	I am prepared to tender these minutes to you,

sir, as evidence of the serious considerations- - -

HIS HONOUR:  I do not know that they can prove - but what you

are saying is that a group of plaintiffs and the

organization to which they belong is not an affluent

group of plaintiffs or organization-

MR LI:MBO: In fact it is a poor group.

HIS HONOUR: - - -and that to the extent that they have any

money left after supporting themselves, they have spent

it on public information and they have nothing left to

pay the court fees,is that right?

MR LI:MBO: In essence, yes.

HIS HONOUR: Proceed on that basis and if there is any problem

about that, we can come back to it.

MR LIMBO:  Yes. Obviously, sir, a very realistic and pragmatic

view is to say, surely they can each go and borrow $50

off their friends and pay that back in due course if they

are so concerned about it. But, in my submission, the

discretion given to Your Honour does not extend that far

because if that is to be the case, if low income people -

and at the moment, as I understand it, there is a social

justice policy adopted by the Australian Government to do

with redistributing opportunities and resources in this

country - it seems a very unfair premium because if we

C3T2/3/RB	4	28/11/89
Limbo

had had the $300 easily available to us, as most plaintiffs

do who come to this Court, we would have simply been able

to issue the writs last Friday and served them. That

seems to be the basically unfair proposition that that

ought be the case, that where plaintiffs are having

in many cases trouble simply surviving in this current

society, and most of the plaintiffs here, sir, are on

incomes of $150 a week or less - - -

HIS HONOUR:  I understand the proposition, but it does not

T2 really get to the end of the argument.

MR LIMBO:  No, it does not. If I could just assume for the

moment that the means question could be satisfied in so

far as there is some criteria for it, and move on to the
other two matters which cases show are important, which
is the nature of the action and the prospects for success,

and I deal with those briefly in my affidavit but the

essential proposition, of course, is that since 1948

the universal declaration of human rights and since

Australia's membership of the United Nations and its

adoption of the charter and its statutory ratification

of that charter so that it becomes law in Australia under

the current case law.

HIS HONOUR:  Now, what is the statutory ratification?

MR LIMBO: That the UN CHARTER ACT of, I think, 1952, formally

adopted Australia's membership in the United Nations,

and so Australia qua government question qua Commonwealth

of Australia is statutorily under Australian law a
member of the United Nations. Australian law recognizes

that Australia is a member of the United Nations.

HIS HONOUR:	Be it so, the next step however is whether or not the documents to which you refer are part of Australian
law.
MR LIMBO:	I understand that there is a question-under existing

Australian law it would seem a fairly bald statement that	despite the executive government having ratified all	those treaties which it become apparent, sir - I have
tendered a speech by Gareth Evans to Amnesty International
in which he expressly says Australia has ratified each and
every one of those treaties - those conventions.

HIS HONOUR:  Yes.

MR LIMBO:  Right. I think there is an important question of

standing when we are dealing with these particular ones

because these purport to be universal human rights

available to the individual and the preamble to the

declaration - the universal declaration of human rights

in 1948 says that every individual - it is just before

Article 1 and I will pass this up. It says that:

C3T3/l/RB	5	28/11/89
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Every individual shall strive to promote

respect for these rights and freedoms and

to secure their universal and effective

recognition and observance.

So I say that basically this is saying, if you just take

the words of this convention, it says "Every individual

must strive to secure their observance". In a sense it

is imposing, I say, an individual responsibility to uphold these rights on all people, individuals. So the question of standing that arises here, the most

interesting question, there are others, is whether

individuals - and I say this question has not come before
the Court in this form before - in any country have a

right to go to a court in any country and say, "Other

individuals' human rights in other countries are not being

respected and observed", and I say, of course, in our

submission, this is the high point of our case, that

gives them standing, that an individual when asserting

that human rights conventions are being abused and not

upheld has standing in any court that is a member nation

of the United Nations.

HIS HONOUR:  We seem to have slipped away a little from the

ratification of the charter, universal declaration and

so forth and the question of whether or not those

instruments have become part of the domestic law of

Australia. Now, so far as I am aware, there are some of them - or some parts of some of them - which have become part of the domestic law of Australia.

MR LIMBO~	The GENOCIDE ACT, for example, is the clearest.
HIS HONOUR:	But I do not understand, for example, that the

universal declaration of human rights was enacted as

part of Australian law.

MR LIMBO: That is clearly true, sir; I do not run away from

that, but if I may just turn to common sense for a

moment- - -

HIS HONOUR: That is a very dangerous refuge when we are in a

court of law.

MR LIMBO:  I understand that. It is also a court of justice

and your judicial oath, I think, commands you to do right

to all manner of people.

HIS HONOUR: According to law.

MR LIMBO: According to law, right.

HIS HONOUR: So we need to start with what the law is.

MR LIMBO: Exactly. That is why I just turned briefly to

common sense for a moment to illustrate the argument I

will put to you, which is that if I was attempting to

C3T3/2/RB	6	28/11/89
Limbo

explain to any of these ordinary citizens here that

because of some - perhaps to them - technical argument

these universal declarations of human rights, political

rights, cultural rights which have been drafted by

international conrrnissions and ratified by the global

conrrnunity through the United Nations and purport to apply

to all individuals and have been around, in some cases,

T3	since 1948, that is four generations, if I attempted to explain to them that because of some slightly technical case
law - to them technical - these human rights are actually
not available and enforceable even in Australia, forget
for a moment about Third World countries and Australia's
relationships with them, there is a look of stunned
belief. How can that be? How could it be - this is the
conrrnon sense proposition - that the universal declaration of human rights, which purports to set all of the various
fundamental rights as to life, shelter, security and
cultural survival, do not even apply in Australia,
particularly in the current climate where our Foreign Affairs minister is taking a very high profile on
protecting human rights and has asserted in his speech
to the United National that human rights knows no boundaries, so that if these people just listen to the highest
government officers saying that human rights knows no
boundaries, which has been said by t.rieir elected official to the United Nations, there is some confusion as to why that statement is not actually legally, perhaps, correct.

So that is my conrrnon sense starting point and I

come from that to say that therefore there is a question;

there is in my submission a lacuna of standing and of

law relating to the way in which international treaties

become domestic law that has not yet been resolved. Now,

I think, in my submission, it is unfair to expect me to present my entire argument on that matter to you this

morning on what is a preliminary matter. I think all I

have to convince Your Honour of is that it is a problem

area; there is a gap in some way - certainly there is a
gap in public perceptions of what is meant. If our

Foreign Affairs minister says human rights knows no boundaries and it turns out that in fact, under strict

technical law, it would appear that not only human rights

cannot be enforced by Australians for Third World peoples,

but they cannot even be enforced by Australians for

themselves, then there is some gap.

Now, it may be Your Honour would say, well, that

is a political problem; that must be resolved by the

Parliament; that is something that has to come through

Parliament, but I say that we are talking now about human

rights; we are talking now about, in a sense at its

highest point, the Nuremberg principles, and you will see

in my affidavit, sir, that I mention I have been involved

in two cases: one in the Full Court in Darwin and one in
the Federal Court, and yesterday we received judgment in

the Full Court matter in Darwin and the Full Court there

adopted what might be called the standard approach to

C3T4/l/RB	7	28/11/89
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saying that what you have said, that there is a question

that the Nuremberg principles do not apply in Australia

because they have not been enacted and yet the Nuremberg

principles themselves were attempting to stop the Nazi

problem ever happening again by placing individual

responsibility on all people so that you could not rely

on the act of State as a defence and it also widened or

it adopted our idea of accomplice, so that it was quite

what they are saying basically is that it is impossible for a citizen to prevent war crimes happening in this country because, in a sense, there is no court

a far-reaching proposition and the current state of the appeal,

of law can hear it, and yet the contradiction is that

after the Nazi problem was over, I think several Nazi

judges were found guilty of applying the law of the Nazi

state when they had a moral choice not to and to apply

basic human rights jurisdiction.

So you see what .I am edging to here is an inherent

jurisdiction that must be available to a judge in matters

of human rights, because the Nuremberg principles were

drafted by the International Law Convention in 1950 and

adopted by the United Nationa General Assembly and

Mr Justice Kirby, President of the New South Wales Appeal

Court, in a decision which I do not have to hand but

which I cited to the Darwin Full Court and which can be

found in an article by Mr Justice Einfeld - he is the

president of Human Rights Australia - in the Victorian

I think Law Institute Journal of July or August of this

year, he cites the decision, but Justice Kirby there says,

probably in dicta, that when there are universal covenents

that have been drafted by experts and adopted by a peak

organization of which countries are a member, eg United

Nations, then it may well be thought to be customary law.

It is a dicta along that line. I apologise for my

imprecision but you can see there is an argument there

made and I think there is also an argument that can be
made on standing combined with human rights law to say

that you, as a High Court Judge, eligible for membership

in the International Court of Justice, because I think you

have to be a member of a senior court in each land to be

available to it, and therefore you have a kind of

transnational jurisdiction inherently.

I say that when a human rights question comes

up you, as a-High Court Judge, have jurisdiction to deal

with it and you need only be one individual that comes

to Court.

(Continued on page 9)

C3T4/2/RB	8	28/11/89
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MR LIMBO (continuing): And, obviously - I would take that

further and say there must be certain protections.

You cannot just be a meddling interferor, you cannot

just be an individual coming to court, you must

support it, I would say, by expert evidence and

I have provided Your Honour with a book by

St John Kettle which has just come out which was

commissioned by Community Aid Abroad and funded

by the Foreign Affairs Department which shows the

loopholes in the current export regulations. I have

provided you with a statement by a senator in

Parliament which outlines the facts around that,

and I say that is expert evidence. And I have also

provided you, in a way, with ten citizens who are
prepared to come to Court as a group to put this
to you, and I also say, in my submission, the

fact that the Court is full today of ordinary people

who would not ever probably go -

HIS HONOUR:  I have taken no notice of the gallery,

Mr Limbo.

MR LIMBO:  I understand that you say that, sir but, in my

submission - and I really do not think it is

appropriate to develop that - ultimately, it must

become important if we are looking at criteria

for how seriously we take an individual's claim

that human rights are being abused. One of the

things you must look at is the degree of public

interst in that matter.

HIS HONOUR:  I think there are two problems that, thus far,

you have not addressed.

MR LIMBO: Right.

HIS HONOUR:	One is whether there has been any formal adoption of these international instruments into Australian
domestic law and, if so, you have not, thus far, demonstrated to me what that adoption has been.

MR LIMBO:  Yes, sir.

HIS HONOUR:	The second is that your argument based upon the general notion of judges enforcing what are called
"human rights" in the international instruments
overlook some of the very grave limitations that
there are involved in the division of powers between the judicial and other branches of government. I~
would be a folly of the most cynical order for courts
to assume a function of asserting a power to enforce
human rights, the enforcement of which is dependent
upon the control of economic resources and if courts
were to undertake that function and to fail, then the trust which the people of this country place upon
the judicial system would prove to be misplaced.
MR LIMBO:	I understand that, sir. In fact, that would be, in

a sense, my submission to Your Honour. I do rely

C3T5/l/PLC	9	28/11/89
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on the separation of powers and I do rely on the

fact that your duty as a High Court Judge is to

prevent abuses of power by the Executive or by

the Parliament if they extend beyond a constitution

and what I say here is that - if I can return to

the Nazi state for a moment. Imagine, for example,

that you are a High Court Judge in Nazi Germany

and that I am coming to you and saying, "Human

rights are being abused" and your answer, under

Australian law, would be, "Well, Parliament hasn't

ratified or hasn't adopted statutorially these

rights that you're talking about and therefore my

hands are tied. I cannot act. That's a matter for

Parliament" but because we are dealing with human

rights and the Nuremberg principles recognize the

far reaches of human rights where there is war crimes

and non-combatants are being slaughtered and that

sort of thing, under the Nuremberg Trials, sir,

if you wash your hands of that matter in that

way and said, "Well, it is a matter for Parliament

and they haven't done anything" or "It's a matter

for the Executive and they haven't done anything.

I have no power.", then under the Nuremberg principles, sir, you would be indictable as a war criminal.

I think that is the logic of the situation and

They said, "It's a matter for the State, not for	that is, in fact, what happened with the Nazi judges.
me. I must apply the State law. Unless it has been
adopted by the State, then I can't - there is no
power." And that clearly is wrong. That clearly
is unfair and unjust. I mean, a child - and our
youngest plaintiff is 11 - can see that.

HIS HONOUR: Well, I understand your argument. I think you

have completely misunderstood the Nuremberg declaration

but that is another matter.

MR LIMBO:	I am sorry, sir.
HIS HONOUR:	I understand that argument you put.

MR LIMBO:  Yes. The question then becomes - if I mi~ht turn

to the prospects of success. One of my maJor

submissions to you would be that this argument

ought be presented by silk and it ought be researched

by a team of people and not by someone like me who

hasbasically got a law degree and perhaps 18 months of

courtroom experience and has for many years been

off being a connnunity artist and things like that.

It ought be presented by the most skilled legal

representation available and under the HUMAN RIGHTS

AND EQUAL OPPORTUNITY ACT the covenant on political

rights annexed to that guarantees or purports to

guarantee everyone a fair trial in a public court

with representation of their own choosing and

adequate time to prepare their defence in that case.

Well, I say that basic principle must be right,

particularly where the Australian Government policy

C3T5/2/PLC	10	28/11/89
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is one of social justice. It must be right that

where the potential defendants have the most

extensive resources that money and time can buy

to present a defence to this matter and where the

plaintiffs do not have equivalent legal

representation and legal support, there is a problem.

So, I say the appropriate course to pursue is to - the writs having been issued - ~hen pursue the - attempts

we have already made with the Office of Legal Aid

administration - and there are certain schemes

available, sir. There are about six cases a year

which the Office of Legal Aid Administration funds

Mr Peter Bensen of the Office of Legal Aid Administration is considering this case. And there is the further point, sir, that we are starting these things around the country now called Public Interest	if they are in the public interest and the work of the Sydney Public Interest Advocacy
Centre. They have been going perhaps - their five-year
report came out, I think, a year or two ago.

TS HIS HONOUR: I think if you restrict yourself to the argument.

MR LIMBO:  Right. Thank you, Your Honour. I only mention

that because I have put to you in the affidavits

an annexure about public interest advocacy which
was delivered last week at the Environmental Law

Conference in Adelaide - the national conference of environmental lawyers - which roentioned some of the

problems in getting up public interest cases, the

question of costs being the main one. So, I, basically,

do not want to be prejudicing in my arguments to you

today by the fact that I do not have the degree of

legal skills and legal research available that

would be - I do not have the degree of legal skills

personally nor do I have access to the kind of legal
research that would be needed to research Canadian,

American and UK law to be able to present this argument to you in detail but I merely say that on what I have said so far you can see there is an

argument. Now, you might say it is misconceived

and fundamentally flawed but because, once again,

we are talking about human rights and because it

has come to you in this way, a group of concerned

citizens, with material which supports their claims,

namely the St John Kettle book, it is important

that this matter be fully and fairly heard.

Your Honour spoke about the respect for justice

and the respect for the role of judges and I say the

fundamental principles of justice are audi alteram

partem and nemo judex in res suis which basically

means you have a right to be heard and no one should

be a judge in their own cause. They are very
basic principles of justice, very basic principles
of natural justice and administrative law recognises

those statutorily. So, therefore, I say this matter

C3T6/l/PLC	11	28/11/89
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having come in this way, it ought to be fully and

fairly heard so that we answer that fundamental

confusion of citizens as to why these universal
declarations of human rights that have been

around for many years, (a) do not protect their

fellow Australians but (b) cannot be used to protect

other citizens in other countries who are suffering

clear repression and abuse of the most fundamental

human rights; where genocide, for example , which

is statutorily against the law of Australia, is

being carried out.

In my submission, there would be an extreme

High Court, did not have the power to at least hear cynicism and disrespect for justice if you, as a

that matter and, in my submission, to hear evidence

..	of it because the other fundamental function of courts is to impartially hear evidence. It
cannot be made under the protection of Parliament;
you must come into the witness-box, give evidence on oath and be cross-examined on that and you can hear
expert evidence from various people. You can hear
testimony from ordinary people.

HIS HONOUR:  Mr Limbo, I think I should take you immediately

to the problem that seems to me to be the main

one - main obstacle in your path. I understand

the lofty sentiments which you have expressed and

which are to be found in the documents that you have

filed but this is a court of law and in order that a
court of law can perform its appointed function

it is necessary that the claim that is made or

proposed to be made in litigation should be made in

a fashion which is legally intelligible.

Now, I mean no disrespect to you or to.whoever

else may have drawn the pleadings -

MR LIMBO:  I accept full responsibility and I apologize in

advance.

HIS HONOUR:  But the problem which is faced is that in reading the pleadings it is by no means clear that there

is any legal foundation for the kind of claim that

is sought to be made. The points that you have

touched upon in the course of your discourse may

be interesting legal points but if they are not

raised in a way which permits of their legal

solution then it would be an unconscionable waste

of time to launch them upon so uncertain a sea

as this. Now, that is the problem.

MR LIMBO: Yes.

HIS HONOUR:  And I appreciate what you say about the need to have

it argued by the best of legal advisers and so forth	·
but the problem really is whether that is not the

source to which you should have gone in the first instance

C3T6/2/PLC	12	28/11/89
Limbo

MR LIMBO:  Yes, sir, but there are obvious problems - I do

not know if Your Honour can take judicial notice

of the fact that legal aid offices around the

country are under-funded and are concerned with

people in custody and - - -

HIS HONOUR: There are two problems in access to the courts

today: one is the cost of legal services and the

second is the one that you are addressing here and

that is the cost of access through court fees but
the problem that the courts must face is that it is
inappropriate that in the pressure of the court's
business that time be dissipated in trying to find
points for solution as distinct from having points

put up for solution.

MR LIMBO:  I understand that, sir.

T6 HIS HONOUR: Now, that is the problem. If you wish to say

anything further on that, please do so, but that

is the difficulty that I see in the ·docu~ents that

thus far have been filed.

MR LIMBO: Well, sir, in the ordinary course, if we had the

$300 cash and it was of no burden for us to raise

that and put it into the Court system, then we would
be able to issue the writ and the statement of claim,
in my submission, and the appropriate course would
then be for the defendants to make a motion supporting -
in outline of what you are saying - that the
statement of claim and the writ are frivolous or
vexatious or an abuse of process or disclose no

cause• of action but I think because - once again,

I come back to this - we are dealing with human

rights, Your Honour ought allow the matter to

proceed on that basis and because Your Honour

is looking really at the economics here - I mean,

Court fees are $300 and that is what we are arguing

about. We are arguing about money, not really about

the issue, and I know the case law says we

must look at the issues - and I think we have done

that. And if I could put one final thing to you,

sir, which is this: if I came to this Court with

similar pleadings alleging that genocide was being

carried out, to take an historical example,

against the Aboriginal peoples of this country and

I could clearly show that the kind of massacres

that had been carried out 100 years ago were being

carried out today and I relied on these principles,

and the GENOCIDE ACT was not enacted, right, so

we had only the Genocide Convention, not a GENOCIDE

ACT, is Your Honour seriously saying to me that

it would not be appropriate for a court to say, "We

regard these allegations with extreme seriousness.

We are horrified to think that non-combatants of any

kind could be being slaughtered just because of

their race or religion or whatever, particularly

C3T7/l/PLC	13	28/11/89
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the indigenous people of this country and we

insist that this matter go forward because

'10WeV"er spU+:"ious or unlikely it may appear on the

face of it, because the most fundamental instincts

of justice tell you this is wrong, something must

be done about it". So, if I could take that

analogy to here: it is well documented that arms

transfers from Australia and First World countries

going to America and France are then used in

Third World countries for repression and to carry out

both physical and cultural genocide. That is a fact

of which Your Honour can take judic'ial notice.

Your Honour is well aware of the abusesof human

rights and the death squads in the Philippines,

et cetera, et cetera, they are well documented in

the daily papers, you can hardly miss them,

if we come to you and say this is going on and

Australia is a party to it, an accomplice, within

the conventional legal terms, then something ought

be done and that is why we are here. I mean, this

is the High Court of Australia. I mean, the

transcript will show what I have said on this

matter to you, sir, and I do not want to repeat

myself. I take your point about time.

That is all I can say. There is a problem and

it is a serious problem. There is a lacuna

in some way. It ought be addressed and this is

the Court that we have to come to because you have

original jurisdiction in treaty matters. The problem

now, sir, is where do we go from here? We either

have to raise the $300 and attempt to issue the

writs and then the defendants will strike out. I

do not know what the appeal process, sir, from you

to a fuller court is nor do I know what our chances

of success would be in getting leave to appeal to

a Full Bench or a fuller bench of the Court to

discuss this matter. And in the meantime there is

our problem of the	inequality of resources in
this battle.

That is the problem that is faced in the outside

world. The inequality of resources means that poor
people in Third World countries and, in fact, poor

people in Australia have less rights effectively

than rich people. The arms traders are rich; the

Government is resource rich. They are both powerful

groups. The ordinary citizens are neither and
Your Honour must - I was going to say "still" but

Your Honour must have highly developed instincts

for justice: fundamental principles of what is fair

and not fair. People cannot be killed simply because

of their race or religion. That is quite apparent

to any human being and that is what human rights laws

are, they are fundamental human being laws. We cannot

go around poisoning the planet, poisoning our environment.
We cannot go around killing people who are not soldiers.

We cannot go around ruining the lives of children and

depriving them of opportunities to fully develop

C3T7/2/PLC	14	28/11/89
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their potential. All these rights are protected

by the covenants on social, political and cultural

rights of the United Nations, and they were drafted

by experts and put there for that very reason,

because any civilized society, any articulate

society, any society that prides itself on

protecting human rights and human values as opposed

to machine values must, I think, step forward

and assert them. And given that these matters

have been asserted for over 40 years in the global

connnunity and, as I say, quite recently in the

Australian connnunity, our government regards

itself as a human rights protector - human rights

knows no boundaries.

There is that question of justice and of law,

sir, that has to be addressed and I say has to be

T7 addressed by this Court, and urgently. Thank you.

HIS HONOUR:  Now, are there any other plaintiffs who wish to

add anything to what Mr Limbo has said?

MS BICKET:  Would it be appropriate for me to read my

affidavit?

HIS HONOUR:  Does it describe simply your means or does it

say anything further?

MS BICKET:	It has a point of view that I would like to be heard.
HIS HONOUR:	Well then, it may not need to be in an affidavit.

If you wish to put some submission, you can do so now.

MS BICKET:  My name is Jeane Bicket. I am an unemployed primary

school teacher and have been active in peace work,

women's and aboriginal issues for some time.and am

at present participating in the SAFE campaign

to stop arms from export.

My weekly income is $200 and I have no assets.

I have chosen to take this action to connnunicate my

hope for justice and peace in the world and bring

legal action to restrain those who abuse their power

in this respect. In our cultural tradition we have

been taught to love our enemies, to transform conflict

into justice that enables ·trustworthy friendship to

exist between all people and connnunities in the world.

These men and their organizations are preparing to

kill people. It does not inspire the trust from

which this justice can be formed and is contrary

to world peace.

Furthermore, the stockpiling of weapons stops the people from making justice because they are

either too afraid or too preoccupied with the war

machine and its effects to begin to connnunicate
and create with one .an0ther tMt .:which is truly· huraane.

We are being called to live justice and require the action of this Court to assist through all proper

C3T8/l/PLC	15	LIMBO	28/11/89
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and correct means in employing its powers to bring

about the necessary conditions for it. Stop arms

for export.

HIS HONOUR:  Thank you. This Court is not a public forum

which is affected by the expression of any public opinion. It is a Court of law which does justice

according to law and according to the facts that

are placed before it. For that reason, it has

always been thought that justice is best done when

it is done coolly and impartially. That process is

not assisted by public displays of either support

for or reprobation of what is said by those who are

parties to the important process of doing justice

according to law. I would therefore ask the gallery,

if there should be anything further said, neither

to indicate support nor to indicate reprobation

of whatever the speaker might be saying.

Are there any other speakers from the bar

table? Do you wish to say something?

MS MEYER:  Yes, Your Honour.

My name is Barbara Meyer and I am a mother of

eight children, and a grandmother, and I am a

Quaker, and I have been active in the support of

various organisations that work for peace my entire adult life. I have been put under an obligation to

oppose the entire institution of war which I see to

be a very harmful institution.

Now, many people think that opposing the

institution of war is a cause that cannot win because

that institution has been with us as long as we are

aware of in the history of human civilization.

However, I am encouraged to continue to do so with

all my ability because we have managed to eradicate

a number of harmful institutions in the past several

centuries including the institution of slavery

and a great deal of the discrimination against women,

and we have been able to set up international

principles and an international organization to

try to help prevent the scurge of war.

TS Now, these efforts go back even further

than the beginning of the United Nations,and

Your Honour would be aware of that, and some of

the conventions that try to control the destructiveness

of war go back for at least a century. So, I do not

think that my working in this cause is a waste of

time, I think it is very much a matter of a campaign
that may take longer than my lifetime but which is a

very worthwhile campaign and which is worthy of the

best of our energy, the best of our intelligence,

the best of our caring and compassion.

I was very happy to take part as a plaintiff

in this act because I think Australia has the

capacity to be a part of a very fundamental change

C3T9/l/PLC	16	BICKET	28/11/89
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in the world and a change which may take us beyond

the present divisions of humankind into

warring nations to some sort of co-operative

confederation and that the principles of justice

and the principles of international law will move

us in that direction,- "us" being all human beings -

but that Australia has some inclination and some
will and some of the legal bases to be a significant

part of that process. And I think that our coming

before you today is an historic event and it can be

a part of helping to reshape history in a less violent

mode.

One of the things that I am working on at the

moment is a course to train as a community mediator

and I am doing this at my own expense, and the

course is offered by the Bruce College of Technical
and Further Education and the Conflict Resolution

Service, and I think that if we can prove on a community level, on a neighbourhood level, that

people can solve their problems non-violently,

that that will help establish that that can be done

in the world, on an international basis, and that

is a significant process.

Now, as long as the means for killing people

are given more resources than the means for educating,

feeding, nourishing, caring for people, giving them

health care et cetera. We feel constantly frustrated

and discouraged by this and angered by it and it will be a great day for humanity when we are spending more money on the means for increasing peace and justice

in the world than we are on militarism. So, therefore,

I think we have responsibilities, as citizens and

as human beings, to act to oppose all militarism,

all manifestations of militarism.

We are at present forced to pay taxes and

huge amounts of our taxes are used to support the

military and I regard that as a primary injustice.

So, I think I have said what I want to say: for me, it is a matter of my obligations as a citizen, as a

hunan being and as a parent to do everything in my

means to try to change the institution of war

to institutions of non-violent conflict resolution

and co-operation.

HIS HONOUR:  Thank you. Is there any other plaintiff who

wishe·s to say anything?

MR LIMBO:  Sir, I would just conclude then by, if I may,

referring you to an article called The Nuremberg

Defence by Frank Lawrence in the Hastings Law Journal,

volume 40, January of this year, in which he discusses

the duty of a person having knowledge of illegal

activity of a ,;;·Jar · crime level, to take affirmative

measures to prevent it. And I also seek to tender,

sir, a copy of the exhibition catalogue for AIDEX '89

which lists all the companies exhibiting there and the

C3T9/2/PLC	17	28/11/89
Limbo

kinds of items that they manufacture: weapon

systems and components for that.

HIS HONOUR:	What is the purpose of that?
MR LIMBO:	Sir, I have already annexed to my affidavit a

briefer version of this. It is a four-page outline

of the AIDEX exhibition. It just goes, in my

submission - it is just further evidential support

of what has been said in the affidavit, that this
arms bazaar that is occurring at the moment is

intended to export from this country components

used in military operations, and I have already

directed your attention, sir, to the loopholes in

the customs' regulations which allow arms tranfers
to go to Third World countries via USA or France.

I have pointed to about 12 defects in the customs'

T9 regulations that infringe the human rights - - -

HIS HONOUR:  I do not understand what the evidentiary purpose

of that document is that you wish to produce now.

MR LIMBO:  I see. Well, I say that this is a catalogue of

all the companies who are exhibiting and it lists

the weapon systems and the components they make

given that we are claiming that this arms fair is part of the military buildup and also these

companies will be seeking to export these items

from Australia. I just thought it was evidence - or

greater evidence than mere, as it were, hearsay.

This is a document produced by one of the defendants,

Desiko Pty Ltd, and it - - -

HIS HONOUR:  Well, if you wish you can place it on - I will

receive it to put it on the Court file but I do not
propose to read it because it does not seem to me

to bear upon the particular problems that I face

under this application.

MR LIMBO:  Thank you, sir. And could you inform me, sir,

as to what the correct procedure is on appeal?

I have not, because of, as I say - - -

HIS HONOUR:  No, that is not my function. Perhaps you should

wait until you get my decision before you determine

on whether you wish to appeal or not.

MR LIMBO:  Thank you, sir. And there is one minor matter:

although Your Honour did not want to hear about

violence. We do have in Court today a

Mr Gareth Smith and Mr Michael Denborough, a local

doctor and a local psychologist, who were both

victims of police violence and unnecessary arr~st.

And although you say that is irrelevant to what

is going on, I merely say that this kind of activity

occurs because the police force, the law enforcement

officers, do not take seriously the human rights

obligations imposed on them under, I would say,

C3Tl0/l/PLC	18	28/11/89
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Australian law, and certainly under the spoken

statements of Australian leaders and I say that

this kind of police violence is something that

Your Honour could comment on, particularly because

it was carried out by police officers who were

acting as private security guards; that police

officers volunteered and were paid overtime - - -

HIS HONOUR:  But it does not seem to come within the

confines of the pleading that is thus far

before me.

MR LIMBO:  No, sir, but there has been, I understand,

judicial disapproval of the use of police -

HIS HONOUR:  If it does not come before me, are you wishing

to make any point about it which is relevant to

these proceedings?

MR LIMBO:  Yes, sir, to simply show that it is urgent and

important for a superior court to announce on

these issues so that this kind of petty intimidation

and violence will not occur any more.	Thank you,
sir.

HIS HONOUR:	Do you wish to place that on the Court file?
MR LIMBO:	Yes, please, sir.
HIS HONOUR:	Very well.

MR LIMBO:  Thank you. And I have here a visitor 1 s gate pass,

sir, if Your Honour wishes to inspect the AIDEX

Exhibition. I do not know if that is appropriate

in this matter but one is available if you consider

that is appropriate. If you are concerned, as we are,

about these issues you may wish to inspect the

exhibition yourself to see the kinds of, I suppose,

warmongering material.

HIS HONOUR:

I am determining a judicial application, I am not

involved in an inspection.

MR LIMBO:  Thank you, sir.

(Continued on page 20)

C3Tl0/2/PLC	19	28/11/89
Limbo

HIS HONOUR:  This is an application which is made ex parte

under Order 72 of the Rules of this Court for orders

that:

1. The court fees be waived (or postponed

until after final judgement in this matter);

2. the transcript costs be waived (or postponed

until after final judgement in this matter);

3. all proceedings in this matter may be video/

audio recorded and broadcast in whole or in

part on TV/Radio internationally;

4. evidence (including expert evidence on the

law in other countries) may be given by "distance"

witnesses via satellite/video hookup with appropriate

judicial safeguards deduced from the existing law.

The first of those orders is applied for under Order 72

rule 12 which reads that:

The Court or a Justice may, in a particular

case for special reason, direct -

(a) that a fee shall not be taken, or that

part only shall be taken, or, if taken, that

the whole or a part of the fee be remitted; or

(b) that the payment of the whole or a part

of the fee be postponed until such time, and

upon such conditions, if any, as the Court or

a Justice thinks fit.

The proposed plaintiffs are represented chiefly by one

of them, Citizen Limbo, who has been supported orally by

some others of the plaintiffs. I am prepared for the

purposes of these proceedings to assume that the plaintiffs

individually or the plaintiffs collectively are without

sufficient means to defray the cost of issuing a writ out

of this Court, the fee for that issuing being in the

amount of $300.

Where a person has a legal right to enforce or a

legal defence to offer to another's claim, the imposition

of substantial court fees restricting access to the courts
of law may place that person, unless he be affluent,

outside the law's protection. In a society governed by

law no barrier can be erected against reasonable access

to the courts for the vindication and protection of legal

Tll rights.

To ensure that litigation is not frivolously

connnenced, modest fees have traditionally been exacted

but the courts have reserved a dispensing discretion to

poverty is no bar to tlie operation of the law. ensure that where litigation can be seen to be justifiable

C3Tl2/l/RB	. 2 9	28/11/89
Limbo

Order 72 rule 12 confers such a discretion but

its exercise is governed by the considerations which evoke

its creation. In RE LOUIS (No 2),(198~ 62 ALJR 428, I

expressed the view that Order 72 rule 12 requires:

that there be a special reason shown -

for the order to be made. I added:

Involved in that concept, as it seems to me, is some degree of satisfaction that the cause of

action which is sought to be litigated is a

cause of action which has some reasonable prospect

of success, being pleaded in a fashion which is

sufficiently intelligible to identify its

constituent parts.

In an earlier case in the same volume, RE LOUIS,

(1987) 62 ALJR 39, Mr Justice Deane said that it -

must always be relevant to pay regard to

the nature of the proposed proceedings and to the prospects which the applicants hold

of success in them. It would, for example,

be an absurdity for a Judge of this Court to

order that filing fees be waived to facilitate

the receipt of a document which constituted

an abuse of process or was the initiating

process of proceedings which constituted an

abuse of Court.

It is therefore necessary for me to look at the pleadings

as they stand. Before turning to those pleadings, I should say something about the submissions that have

been made to me this morning. I do not have the slightest

reason to doubt the genuineness of the views which have

been expressed, nor have I any reason to doubt that the

views which have been expressed, redolent as they are

of the aspirations of a most fundamental kind of all

humanity, are genuinely held by those who seek to
advocate this cause.	The cause of international peace

and the operation of the rule of law for the enforcement

of human rights is an aspiration which all people hold

and none, I should hope, as fervently as the

Australian people.

But when one comes to a court of law it is

necessary always to ensure that lofty aspirations are

not mi~t-::ilrAn for the ruJes 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.

C3Tl2/2/RB	21	28/11/89
Limbo

HIS HONOUR:  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 th~•eourts 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.

International human rights are

enforced in this country chiefly by the operation

of our domestic law. The laws against genocide,

to take one of the examples that have been discussed
from the bar table, are enforced in this country

by the operation of our ordinary criminal law

against homicide. Ie~is a mistake to

confuse the aspirations of a people with the

means by which those aspirations can be iegally

discharged.

I turn then to the form of the affidavit

of Citizen Limbo and of the pleadings which he

has proposed on behalf of the plaintiffs. I

turn first to the form of the relief that is sought.

It is contained in a heading called "DECIARATIONS

SOUGHT", and it reads as follows:

And the plaintiffs claim a declaratory

order or judgment that:

16. The defendants' said acts and omissions

are contrary to the international human

rights standards set out in:

(1) the United Nations Charter,

(2) the Universal Declaration of Human

Rights,

(3) the Covenant on Civil and Political

Rights,

(4) the Covenant on Economic, Social

and Cultural Rights,

(5) the Convention on the Elimination

of all Forms of Racial Discrimination,

(6) the Convention on the Elimination of

All Forms of Discrimination Against

Women,

(7) the Declaration of the Rights of the

Child,

(8) Convention 111 of the International

Labour Organistion,

C3Tl3/l/PLC	22	28/11/89
Limbo

(9) the Nuremberg Principles (especially

Article 6: "Accomplies"),

(10) the Genocide Convention.

17. The actions of the Defendants Beazley, Evans, Commonwealth of Australia, Office of Defence Production and Australian Trade

Commission are beyond their constitutional power under s. 51 of the CONSTITUTION, namely placita:

(i) trade and commerce with other countries,

(vi)   the naval and military defence of the

Commonwealth, and

(xxix) exter.nal affairs.

The first set of claims, that is those contained in

paragraph 16, relate to conduct which is said to be

contrary to international human rights standards.

The second, that is those contained in paragraph 17

are said to relate to actions beyond Commonwealth

constitutional power.

Unless the proposed statement of claim reveals

that the alleged breaches of international human rights
standards create causes of action under Australian

domestic law or are relevant to the application

of Australian domestic law, the proposed proceedings

would appear to be an abuse of process. An assertion

that officers of the Commonwealth have acted beyond

their respective constitutional power, on the other

hand, is within the familiar jurisdiction of this

Court. But, on reference to the proposed pleadings

it is impossible to ascertain any intelligible legal

foundation for the relief which is claimed.

The proposed pleadings echo the lofty

sentiments which have been expressed from the bar

table this morning and it will be sufficient if I

recite from paragraphs 12, 13, 14 and 15 of the

statement of claim. They read as follows:

Current controls upon military exports

(Schedule 13 of the Prohibited Exports

Regulations of the CUSTOMS ACT) allow the

direct and indirect supply of "repression"

and "repressive intervention" ("repression"

is "a substantial organised armed force
preventing a number of people from exercising

their basic human rights, mainly

directed by governments at political

opponents among their people"; "repressive

intervention" occurs when "external
intervention extends beyond the supply of
arms and training to the supply of substantial

numbers of military personnel")

C3Tl3/2/PLC	23	28/11/89
Limbo

PARTICULARS OF ALLOWING SUCH SUPPLY:

(1) There is no Australian arms embargo

upon repressive governments;

(2) there is no control whatever upon

intangible exports like maintenance

and overhaul services nor upon combat

support equipment;

(3) there are no controls upon the re-transfer

of Australian-made components incorporated

into foreign-built equipment;

(4) there are no controls upon the supply of

First World countries with a record of

repressive intervention in the Third World

(e.g. USA, France, UK);

(5) the USA, the UK, New Zealand and Canada

are exempted from export controls;

(6) routine administration will be performed

by the Defence Department (whose prime

concern is not human rights) and the

Foreign Affairs Department (the supposed

human rights watchdog) has been

relegated to consultative status;

(7) the onus of proof has been shifted onto

those opposing an export proposal to

make a specific case against it within

21 days;

(8) there is a presumption that if Australia's

friends and allies export certain military

equipment to country X, then Australia

may export comparable equipment there too;

13. Australian military exports have had and

will have a negative impact particularly in the

Third World upon peace; political freedom; economic and cultural well-being; and the

ecological balance.

14. The Defendants do not restrict their

support for Australian-based military industry

to the minimum necessary for Australia's
defence.

15. The public is not provided with regular,

comprehensive information about Australia's

military exports.

I do not think I need to refer in detail to the

affidavit of Citizen Limbo. Suffice to say that it

relates chiefly to the financial· aspects·~.·

of the matter and there is a reference to the prospects
of success. Perhaps it would be as well if I were to

refer to one passage from the paragraph dealing with

"PROSPECTS OF SUCCESS" in order to make a point that

I will shortly refer to. That paragraph includes the

passage:

C3Tl4/l/PLC	24	28/11/89
Limbo

It may help -

that is, the decision of this Court "may help"

especially peoples in "Third World"

countries suffering continuing human

rights abuses (and peoples in "First World"

countries such as the USA and France to

assist in the observance of their own

countries role in upholding human rights).

So "success" here simply means the matter

is taken seriously by contemporary senior

judicial officers. Of course, without

traversing in detail the relevant facts

and the law, there are also good prospects

for expecting the court to declare the law

to be as it is asserted to be by the

plaintiffs.

With that brief but, I hope, adequate summary

of the issues which the applicants seek to raise,

it seems to me to follow that the foundation which

is advanced in the statement of claim mistakes the

role which this Court is constitutionally obliged to

perform. These paragraphs appear to raise allegations

not of an absence of power but of a wrong exercise

of power by the political branches of government.

At all events, the allegations do not intelligibly

assert reasons for denying the existence of power

to support any particular legislative or executive

act.

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 none the

less political pleas.

The same may be said with respect to the domestic

enforcement of international human rights.	Human
rights which are internationally agreed may, of course,

become part of the domestic law of this country and thus subject to enforcement by the domestic courts of Australia. That is not the case, however,

which the applicants seek to make. This Court

canno.t 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. Thoup;h I acc?pt. fo_j;·· the purposes ·

of this judgment that there -is a sufficiency

of standing and a sufficiency of poverty established

to justify the making of an order, I must

dismiss the application for want of an intelligible

formation of the claim.

C2Tl4/2/PLC	25	28/11/89
Limbo

HIS HONOUR (continuing): The remaining orders, that is 2, 3 and

4 which are sought in the application, are orders which

relate to costs and procedures which would be involved

in litigation which is properly cormnenced. If the

proposed litigation were cormnenced, then it would be

time enough to consider the making of any of the orders

referred to in paragraphs 2, 3 and 4 of the application.

At this stage it is premature.

The only order therefore which I am constrained

to make is an order dismissing the application and I

dismiss it accordingly.

Adjourn the Court.

AT 11.30 AM THE MATTER WAS ADJOURNED SINE DIE

C3T15/l/RB 28/11/89

26

Limbo