Buzzacott v Gray

[1999] FCA 1525

FEDERAL COURT OF AUSTRALIA

Buzzacott v Gray [1999] FCA 1525

Constitutional Law - application to declare invalid the proposed laws for Constitutional Alteration (Establishment of Republic) 1999 and Constitutional Alteration (Preamble) 1999 - application under Part IVA of the Federal Court of Australia Act 1976 on behalf of the Aboriginal Genocide Prosecutors - whether interlocutory injunction restraining the referendum should be granted.

No S 92 of 1999

KEVIN BUZZACOTT v BILL GRAY, AUSTRALIAN ELECTORAL COMMISSION, COMMONWEALTH OF AUSTRALIA, STATE OF SOUTH AUSTRALIA and UNITED KINGDOM OF GREAT BRITAIN

VON DOUSSA J
ADELAIDE
3 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 92 OF 1999

BETWEEN:

KEVIN BUZZACOTT
Applicant

AND:

BILL GRAY, Australian Electoral Commissioner
First Respondent

AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

STATE OF SOUTH AUSTRALIA
Fourth Respondent

UNITED KINGDOM OF GREAT BRITAIN
Fifth Respondent

JUDGE:

VON DOUSSA J

DATE OF ORDER:

3 NOVEMBER 1999

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        Application for interlocutory injunction refused.

2.Further consideration of the proceedings and the first directions’ hearing adjourned to 9.15 am on Monday 6 December 1999.

3.        Question of costs reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 92 OF 1999

BETWEEN:

KEVIN BUZZACOTT
Applicant

AND:

BILL GRAY, Australian Electoral Commissioner
First Respondent

AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

STATE OF SOUTH AUSTRALIA
Fourth Respondent

UNITED KINGDOM OF GREAT BRITAIN
Fifth Respondent

JUDGE:	VON DOUSSA J
DATE:	3 NOVEMBER 1999
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. These proceedings were commenced on 1 November 1999.  The applicant seeks relief, on grounds stated in an annexed statement of claim, as follows:

   “(1)A declaration that the Constitution Alteration Acts 1999 are invalid, void and a nullity both in their terms and in their implementation.

   (2)A permanent injunction restraining, unless and until all the States shall make the ‘request’ or ‘agreement’ as required by s 15(1), Australia Acts 1986 in relation to the Referendum Acts proposed for vote on 6 November 1999 or any other proposal to change the system of laws and government from a Constitutional Monarchy under the Crown to a Republic, the first, second and third respondents from any actions as specified in paragraph 5.(a), (b) & (c) below.”

2. The declaration and injunction sought in the application are for permanent relief following a trial.  By way of interlocutory relief today the following orders are sought:

   “(1)An order abridging the time in which the respondents may file a statement denying the facts the applicant has called upon them to admit by notice filed 1 November 1999 to Tuesday 2 November 1999.

   (2)A declaration that the two Constitutional Alteration Acts are jointly and severally invalid, void and a nullity both in their terms and in their implementation.

   (3)An interim injunction restraining until further order the first, second and third respondents from any actions directly or indirectly relating to:

   (a)The holding of the ‘Republic’ Referendum vote on 6 November 1999; and/or

   (b)Should the said vote be held and taken, the announcement or publication of any result of the said vote; and/or

   (c)Any further steps to implement any other administrative, executive or legislative measures for the proposed Republic.”

3. The order sought in paragraph 1 is premature, and not a matter for urgent decision.  It should be stood over for consideration at a later date.  The relief sought in paragraph 2 is in form final relief which can only be granted after a trial.  Again it is not a matter that can be dealt with by way of interlocutory relief.  It is paragraph 3 which requires attention today.

4. The references in the application to the “Constitution Alteration Acts” are an incorrect description of the proposed laws set out in Bills respectively entitled Constitution Alteration (Establishment of Republic) 1999 and Constitution Alteration (Preamble) 1999. Both Bills have been passed by both Houses of Parliament, and are to be submitted to electors at referendums planned to be held on Saturday 6 November 1999, in accordance with the procedure laid down in s 128 of the Constitution. Section 128 provides that if in a majority of the States a majority of the electors voting approve the proposed laws, and if a majority of all electors voting also approve the proposed laws, they shall be presented to the Governor General for the Queen’s assent. The Bills cannot pass into law until that assent is given.

5. The proceedings are brought by Mr Kevin Buzzacott pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth). The application says that the group members to whom the proceeding relates are “Aboriginal Genocide Prosecutors seeking to stop and prevent alleged acts of genocide by senior officials of the Commonwealth of Australia and of the States and Territories of Australia”. Particulars appended to the statement of claim name twelve members of the Aboriginal race who have been involved in court actions within Australia that seek to establish genocide as a crime against the domestic law of Australia. These people are identified as some of those on whose behalf the proceeding is brought.

6. Five respondents are named in the application.  The first respondent is Mr Bill Gray who is sued as the Australian Electoral Commissioner.  The second respondent is the Australian Electoral Commission the body conducting the referendums.  The third respondent is the Commonwealth of Australia.  The fourth respondent is the State of South Australia.  The fifth respondent is the United Kingdom of Great Britain.

7. The proceedings have been listed at very short notice because of the proximity of the proposed referendums.  The Court has been informed that notice by facsimile of the proceedings was given to each of the respondents.  Service by this means does not constitute service on the firth respondent who must be served in the manner required by the Foreign States Immunities Act 1985 (Cth). Further, a notice purporting to be given under s 78B of the Judiciary Act (1903) (Cth) has been given by the applicant by facsimile to the Attorneys-General of the Commonwealth and each of the States. 

8. At today’s hearing Mr Buzzacott appeared on his own behalf but was assisted by a friend, Mr Lindon, who is a barrister.  The first, second and third respondents were represented by Dr Perry of counsel, and the fourth respondent was represented by Mr Parker of counsel.

9. The statement of claim pleads that it has very recently come to the applicant’s attention that “the whole of the referendum” is invalid under white law and that the third respondent has always been aware of such possible invalidity.  The invalidity is said to arise from the white law concerning the procedure for changing the Australian Constitution.

10. Paragraphs 7 to 14 of the statement of claim read:

    “7.The two Constitutional Alteration Acts 1999 are in their terms and in their implementation and in their context in civil society an attempt:

    (1)to alter or repeal s 128 of the Constitution Act 1901 and

    (2)to effectively repeal the entire Constitution Act 1901 as it is commonly understood by the citizens of Australia.

    8.In relation to paragraph 7(1) above, s 128 can not itself be altered or repealed using the referendum-of-electors procedure specified in s 128.

    9.In relation to paragraph 7(2) above, the removal of the Crown and the purported transfer of all or any Crown sovereignty to the collective white beneficiaries of genocide is an attempt to repeal the entire Constitution.

    10.S 15(1) of the Australia Acts 1986 provides that such an alteration or repeal (in the case of s 128) or repeal (in the case of the entire Constitution) can only be validly done by the agreement or at the request of the States.

    11.The States have made no such agreement or request.

    12.Further, and in the alternative to paragraph 7 (should the s 128 point be decided adversely to the applicant), the two Constitutional Alteration Acts 1999 are wholly or substantially repugnant to the Australia Acts 1986 and the Statute of Westminster Adoption Act 1942 and to a provision or provisions of those Acts.

    13.S 15(2) of the Australia Acts 1986 provides that repugnant legislation is deemed to be an alteration or repeal of the Constitution within s 15(1) of the Australia Acts 1986 to the extent of the repugnancy.

    14.Accordingly, since the two Constitutional Alteration Acts 1999 are wholly (or substantially) repugnant, they are completely (or mostly) invalid and void ab initio - unless and until the States make an agreement or request in similar terms.”

11. These allegations appear in Part 1 of the statement of claim which contains the pleadings in support of the claim that the proposed laws for Constitutional alteration are invalid “on technical grounds” (to use Mr Lindon’s description).

12. Part 2 of the statement of claim, covering twenty-five paragraphs, allege that the Crown in the right of the United Kingdom of Great Britain, the separate States of Australia, including the State of South Australia, and the Commonwealth of Australia and its Territories has and have each jointly and severally committed acts of genocide against each Aboriginal Nation and its members.  It is pleaded that:

    “23.No Aboriginal Nation has ever ceded its sovereignty or its territory to the Crown in right of any of the said entities or at all.

    24.Members of Aboriginal Nations are now forced to live under two systems of law which are in fundamental conflict with each other-the original system and the imposed system, each asserting it is the only proper law for country.

    25.In the circumstances, the Crown in right of the third, fourth and fifth respondents is committing acts of genocide at international law, namely

    (1)causing serious mental harm to Members of Aboriginal Nations as such.

    (2)deliberately imposing conditions of life calculated to destroy each and every Aboriginal Nation as such in whole or in part.”

13. It is also pleaded that each of the United Kingdom of Great Britain, the State of South Australia and the Commonwealth of Australia owes a fiduciary obligation or duty of care, and breaches of that obligation or duty of care are alleged.  The pleadings continue:

    “31.Further, on 14 October 1999 in the Parliament of Australia, the Senate referred the Anti-Genocide Bill 1999 (as read the day before) to its Legal and Constitutional Affairs Committee for report by mid-2000.  The third respondent is thus estopped from denying the principal contention of Aboriginal Genocide Prosecutors in this and other legal proceedings - that acts of genocide are presently being committed by senior government officials with the requisite intent to destroy.

    32.In the circumstances, neither the Crown in right of the United Kingdom, nor Australia nor a State (such as South Australia) can permit or allow or consent to a change to the system of laws and government without the consent of each Aboriginal Nation first had and obtained.

    33.The proposed change to the system of laws and government is from a system of Constitutional Monarchy to a Republic.

    34.Every Aboriginal Nation still has unfinished business with each of the three Crown stakeholders concerning the invasion of its Land and usurpation of its Law - the UK, Australia and the States.

    35.Current white Australian law recognises (though it does not entrench or protect) at least some limited rights of Members of Aboriginal Nations.

    36.But currently there have been no guarantees of any kind for Aboriginal Nations in the proposed Republic change.

    37.Accordingly, there is apprehension about whether the Republic will see us worse off than now.

    38.…

    39.Further, there is a fundamental moral and legal and financial responsibility here that the United Kingdom may later claim is dissolved by a Republic YES vote.

    40.The responsibility of the United Kingdom as the unlawful invader for compensation and damages is hardly met by transferring ownership to those it has caused, assisted, allowed and invited to transmigrate to the Lands of the Aboriginal Nations and be legally-protected beneficiaries of genocide.

14. The application for interlocutory relief is supported by a short affidavit from Mr Buzzacott in which he deposes that to the best of his knowledge and belief the facts alleged “in my application” are true.  There is no mention of the facts alleged in the statement of claim.  A substantial book of materials has also been filed by him.

15. In oral submissions Mr Buzzacott in an impressive and sincere address outlined the historical events which lie behind the present proceedings.  In substance he said the proceedings are all about “coming the right way”, as over the last 211 years governments have come the wrong way towards the indigenous communities in Australia.  Any change in the method of government, he contends, is taking the Australian community further from the right way.  He contends that Australia’s indigenous peoples have “unfinished business with the Queen” and the proposed laws will not move the Australian community towards a better Australia without first completing that unfinished business “and unlocking old spirits”.  He urges the need for members of the Australian community to sit down and work out how the Aboriginal and the non-Aboriginal communities “will walk together”.  He says the proceedings are a plea to someone, somehow, to make changes that will address old injustices and start the healing process for the good of Australia.

16. The present application for restraining the referendums must however be decided having regard to already established legal principles, and, moreover, decided now, and not in a time frame that permits the types of consultation urged by Mr Buzzacott.

17. The principles which are to be applied in determining an interlocutory application of this kind are not in dispute.  The applicant must show:

    (a)that there is a serious question to be tried or that the applicant has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the application the applicant will be held entitled to relief;

    (b)that the applicant will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and

    (c)that the balance of convenience favours the granting of an injunction.

18. Moreover, as an interlocutory injunction of the kind sought will restrain conduct by a respondent in advance of a trial establishing the applicant’s right at law to an injunction, the applicant is, as a matter of almost invariable practice, required to give an undertaking to pay damages to each respondent and to any other person who is adversely affected by the restraining order in the event that the entitlement to the relief claimed is not established at trial.  The requirement to give such an undertaking is not a mere formality.  It is the counter balance necessary to ensure that injustice is not caused to the respondents and others who may be affected.  If there is reason to doubt that a personal undertaking by the applicant will provide sufficient protection to those likely to be adversely affected, interlocutory relief will usually be conditioned upon the giving of adequate security.

19. In the present case, to restrain the Referendum so close to the event would inevitably cause loss running into tens of millions of dollars to the Commonwealth, and to many other people and organisations who have promoted cases for and against the Referendum questions.  Mr Buzzacott is indigent, and there has been no offer of security.

20. The intent of Part 2 of the statement of claim is not easy to understand. Mr Lindon explained that Part 2 is intended to plead facts that go to support an argument that there is an implied prohibition in the Constitution against amendment without the consent of the Aboriginal Nations in Australia, and that the proposed laws would bring about fundamental change to the Constitution that would be invalid because that consent has not been given.

21. The interlocutory injunction sought is directed only to the first three respondents.  The State of South Australia, whilst indicating through counsel that it denies all the allegations made in the pleadings, and will in due course seek to have the proceedings struck out, did not make submissions directed to the granting of interlocutory relief.

22. Counsel for the first three respondents contends that the application for interlocutory relief should be denied upon each of a number of grounds: first that there is no serious question to be tried as to the invalidity of the proposed laws; secondly, on the balance of convenience; thirdly because there has been unexplained delay in bringing these proceedings; fourthly the applicant will suffer no irreparable injury; and fifthly no undertaking as to damages has been given.  In addition, counsel argues that this Court has no jurisdiction to consider challenges to validity prior to the enactment of an Act or, alternatively, if jurisdiction exists, the Court should grant relief only as “as exceptional measure essential to prevent a violation of the Constitution”.  The following authorities are cited: Cormack and Anor v Cope and Ors (1974) 131 CLR 432 at 460 per Barwick CJ, 462 per Menzies J, 466 per Gibbs J, 472 per Stephens J and 473-474 per Mason J; Hughes v Vale Proprietary Ltd v Gair and Ors (1954) 90 CLR 203 at 204 per Dixon CJ; Victoria v The Commonwealth (1975) 134 CLR 81 at 183-184 per Mason J; Eastgate v Rozzoli (1990) 20 NSWLR 188 and Clayton v Heffron [1971] SR (NSW) 768. These cases appear to leave unresolved the question of jurisdiction, but confirm the proposition that a court should only intervene in exceptional circumstances where a challenge is mounted prior to the enactment of the Act. I propose to assume that jurisdiction exists, and to treat the requirement of exceptional circumstances as a matter going to the balance of convenience.

23. It is not necessary nor appropriate for a court on an application for interlocutory relief to form any final view on the merits of the causes of action alleged by the applicant.  It is necessary only to consider if the plaintiff has established that there is a serious question to be tried.  The views which I am about to express are to be so understood.

24. The first ground of invalidity alleged is that s 128 of the Constitution cannot itself be altered or repealed using the referendum of electors’ procedures specified within the section. I am not persuaded that this allegation gives rise to any serious question to be tried. By its terms, s 128 is wide enough to provide a procedure for the alteration of any section of the Constitution including s 128, and no convincing reason to the contrary has been advanced by the applicant. Section 128 was amended by the procedures set out therein in 1977 in the Constitution Alteration (Referendums) Act 1977, to allow Territorians to vote in referendums.

25. The second ground of invalidity alleged appears to contend that s 15 of the Australia Act 1986 requires that the amendments proposed to the Constitution can only validly be effected with the agreement or at the request of the States. The argument in support of that contention has not been clearly articulated either by Mr Buzzacott or Mr Lindon but perhaps, as Dr Perry has suggested, the argument is directed to s 7(1) of the Australia Act which provides that “Her Majesty’s representative in each State shall be the Governor”. Mr Lindon did not seek to dispute this interpretation of the pleadings, nor did he suggest any other interpretation. He did however indicate that the pleading was not intended to challenge the proposed law for Constitution Alteration (Preamble) 1999. If Dr Perry’s interpretation of the application is correct, she contends that the applicant’s complaint is completely answered first by clause 5 of Schedule 3 of the Constitution Alteration (Establishment of Republic) 1999 proposed law that provides that:

    “A State that has not altered its laws to sever its links with the Crown by the time the Office of Governor-General ceases to exist retains its links with the Crown until it has so altered its laws”.

1. Thus the proposed law expressly does not operate to amend the internal constitutional arrangements of the States in a way that would require the procedure laid down in s 15 of the Australia Act 1986 to be followed.

2. In any event, Dr Perry points out that each of the States have in fact passed an Act that requests in accordance with s 15(3) of the Australia Act that, upon the Constitution Alteration (Establishment of Republic) 1999 proposed law coming into operation, the Commonwealth amend s 7 of the Australia Act in, or substantially, the terms set out in the Schedule to the Australia Acts (Request) Acts.

3. Mr Lindon did not seek to put an argument in opposition to these propositions.

4. Insofar as it is alleged in support of the second ground of challenge that the proposed laws amount to an effective repeal of the Constitution I consider that that submission, as a matter of law, cannot be accepted. The proposed laws seek to amend the Constitution but they cannot be characterised as a repeal of the Constitution.

5. I am not satisfied that the second ground of alleged invalidity gives rise to a serious question to be tried.

6. The issues sought to be raised by Part 2 of the statement of claim are matters of the utmost gravity which challenge fundamental principles of the present legal system.  In particular they seek to challenge in a court of law the acquisition of sovereignty over the territory of Australia by the Crown.  Mabo [No 2] (1992) 175 CLR 1 stands as an authority that the acquisition of territory by a sovereign State cannot be challenged, controlled or interfered with by the courts of that State. Further, Part 2 seeks to contend, contrary to the statement of Mason CJ in Coe v The Conmonwealth (1993) 118 ALR 193 at 200 that Australian law should recognise the Aboriginal Nations and hold that there resides in the Aboriginal people a form of sovereignty that entitles them to be consulted as to the form of government in Australia and as to amendments to the Constitution. These propositions are contrary to the law as presently recognised by the High Court of Australia. Moreover, many of the allegations in Part 2 which alleged genocide, seek to reagitate matters which have already been decided adversely to the applicant and those whom he seeks to represent by a Full Court of the Federal Court in Nulyarimma v Thompson [1999] FCA 1192 and more recently in the Full Court of South Australia in Sumner v United Kingdom of Great Britain and Others, judgment delivered 2 November 1999.

7. This Court is bound to follow these authorities.  I am not persuaded by the argument that I have heard today that there is a serious question to be tried raised by Part 2 of the statement of claim.

8. I am therefore of the opinion that the applicant has not overcome the first requirement necessary to be established to qualify for the interlocutory relief sought.  However, even if I am wrong in any of these respects, and there is a serious question to be tried, I nevertheless consider that interlocutory relief should be refused on other grounds.

9. On the question of delay, the interlocutory orders sought by the applicant would have the effect, if granted, of delaying the whole referendum procedure which is the culmination of proposals for Constitutional change which go back some two years.  It is not as if the issue has arisen at short notice.  The proposed laws passed through both Houses of Parliament on 12 August 1999.  The present application could have been made much sooner.  The eleventh hour nature of the application is a matter which must weigh heavily against the applicant when the balance of convenience is considered.  In the course of argument, Mr Lindon, whilst conceding nothing, acknowledged that the present application has been brought very late in the piece, but explained that the applicant considered it desirable to bring the proceedings nonetheless, so that his complaints were on the public record before the referendum’s occurred.

10. On the question of injury to the applicant, in my opinion the applicant is unable to establish that he and those he represents will suffer irreparable injury if the interlocutory order is not granted.  If the proposed laws will be invalid on any of the grounds asserted by him, they cannot be validated by the approval of electors at the referendum.  Even after approval by the voters, and the Queen’s assent, the validity of the Acts would be open to challenge. Indeed authority suggests that that is the time when such a challenge should be made.

11. Further, I consider that the claim for interlocutory relief should be denied having regard to the balance of convenience.  In assessing the balance of convenience I take into account that the holding of the referendums will not prevent a subsequent challenge to the validity of the proposed laws, that there has been unexplained delay, that exceptional circumstances have not been established, and that no adequate undertaking or security as to damages has been given.  As already pointed out, enormous expense has been incurred by the Commonwealth of Australia and many other parties in the community in relation to the holding of the referendums.  It is plain that the balance of convenience is in favour of refusing the injunction sought.

12. I order that the application for interlocutory relief be dismissed.  Further consideration of the proceedings and the first directions’ hearing will be adjourned to 9.15 am on Monday 6 December 1999.  The question of costs will be reserved.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:
Dated:

The Applicant appeared in person:
Counsel for the 1st, 2nd & 3rd Respondents:	Dr M Perry
Solicitor for the 1st, 2nd & 3rd Respondents:	Australian Government Solicitor
Counsel for the 4th Respondent:	Mr G Parker
Solicitor for the 4th Respondent:	Crown Solicitor
Date of Hearing:	3 November 1999
Date of Judgment:	3 November 1999