Horta & Ors v The Commonwealth of Australia

[1994] HCATrans 426

~ ~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M88 of 1993

B e t w e e n -

JOSE RAMOS HORTA (who brings

these proceedings on his own

behalf and on behalf of the

members of the National Council

of Maubere Resistance)

First Plaintiff

and

JOSE GUSMAO

Second Plaintiff

and

ABEL GUTERRES

Third Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Horta 99 10/8/94

Defendant

Case Stated

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J
MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 AUGUST 1994, AT 10.18 AM

(Continued from 9/8/94)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Solicitor.

MR GRIFFITH:  Yesterday we made the point to the Court that

it is difficult to separate with finality the

issues of standing whether or not the issues are

justiciable and the question of the extended

external affairs power. The short point we sought

to make yesterday is that it now being an agreed

basis that it is an essential step of the

plaintiffs' case that it involve the Court
resolving the two issues identified in the exchange
with Your Honour Justice Brennan, the unlawfulness

of acquisition of Indonesia, or the second issue of

whether or not the people of East Timor have

exercised their rights of self-determination,

perhaps compendiously can be said to be the issue

of sovereignty in East Timor. We referred the

Court briefly to our submissions, paragraphs 1.l(c)

to (g) identifying those and other issues which we

see essential to determine.

If it is the case that the Court can never be

in a position to determine legality under

international law of the acquisition of East Timor

or sovereignty of Indonesia and these other issues,	our submission is that it becomes inappropriate for
the Court to proceed any further with this action
and, in effect, the matter should be struck out.

Our submission is that Australian courts

cannot review these matters for consistency with

international law, and I referred the Court to our

submissions in paragraphs 5.7 to 5.9 of our

submissions.

As it is plain from the pleadings in the

argument that the Court is entitled to inquire into

these areas which it cannot determine, we say that
the Court should refuse to ent~rtain the claim and

we refer briefly at this stage to the Buttes Gas

Horta 100 10/8/94

case, (1982) AC 888 which is summarized in our

contentions, paragraphs 1.24 and 1.25.

I have a particular interest in the Buttes

case because at one stage I was involved as junior

counsel within the chambers in the preparation of

argument on that case, but when one goes to the

speech of Lord Wilberforce, I think uninfluenced by

any of the argument which I prepared, one sees, as

we have extracted in paragraphs 1.24 and 1.25, that

it was clear where there was a matter under

municipal law which the court was competent to

decide, the issue of slander, but where certain
issues would necessarily be required to determine

by the Court in order to decide the matter were

held to be inherently inappropriate for judicial

consideration, then the clear view was taken by the

House of Lords, and Lord Wilberforce in particular,

that the court could not proceed to hear the
matter. They were of the view that important

interstate issues or issues of international law

would necessarily face the court and to them it

only had to be stated to compel the conclusion that

they were not issues on which the municipal court

could pass.

Now, my learned friend Mr Castan referred to

pages 51 to 52 of Mann's Foreign Affairs in English

Courts - the passage is not extracted in our

supplementary materials - to indicate that it was a

decision criticized and my learned friend would

have it, with some force. My learned friend's

criticisms appear on page 48 to 51 of the

transcript.

When one goes to the extracts included in our supplementary materials, particularly at pages 33

to 35 of our supplementary volume materials, one

has there a discussion by Mann.

Your Honour, the point made by Mann is that

the extent of foreign territory is a fact of state

on which the attitude of the executive is

conclusive. So, his criticism of the Buttes' case

is that the Court could not decide the case at all

because the Court would be required to determine

the boundaries of the continental shelf between

three foreign States which the Court could not do,

and what he says the Court should have done - and

this appears at page 34 of the Commonwealth

materials - is that the Court should have sought an

executive certificate on the extent of the foreign

territory and then could have proceeded to have

given a decision on that basis.

So, although we say here, the case is very

much - and we will explore it in our submissions -

Horta 101 10/8/94

a case of the narrow view where, in essence, there

is no matter here at all - and we will take up

Your Honour Justice McHugh's observations yesterday

in expanding on that - it is our submission, even

if one takes the wider view of jurisdiction, for

example, that it may be in some circumstances the

validity of these Acts could be a matter to be determined by reference to the Constitution of validity in the Court, we say, in respect to the

issues here raised, it must be the case that the

Court cannot determine the matter and that if there

is any issue as to foreign territory, the answer is

given in the fact that a certificate which, in

essence, is given here by the statement in

paragraph 8 of the statement of facts, determines

the matters.

DAWSON J:	Do we get to that?
MR GRIFFITH:	No, we do not, Your Honour.

DAWSON J: Yes. Here you have an agreement with a foreign

nation, Indonesia, with respect to a dispute which
has arisen between Indonesia and Australia, and the

agreement is in the form of a treaty and that is

that.

MR GRIFFITH:	We entirely agree, Your Honour.
DAWSON J: Yes.
MR GRIFFITH:	The difficulty in this case, Your Honour, is that, as we said yesterday, there has been a moving
target and, although there might be some nailing in
the mast, there seem to be different points on the
mast to put the nail. But our submissions really
are on a disjunctive basis, that any one of a
series of points is sufficient.  We accept
Your Honour's identification as an obvious and
preliminary point is sufficient.

McHUGH J:  But if you accept that applying what was said by

a substantial majority in Polyukhovich, that is the

beginning and end of this case.

MR GRIFFITH:  Of course, Your Honour, yes. That was going

to be my next point but one.	I was going to make a
passing observation - - -

DAWSON J:  I should have added that the Treaty concerns something entirely external.

MR GRIFFITH: Yes, Your Honour. Remember Polyukhovich,

Your Honour? We had, I think, three volumes of

materials about customary international law and I

will not say entertained the Court, but detained

the Court for some day and a half elucidating

Horta 102 10/8/94

principles of customary law by reference to

which - - -

McHUGH J: Longer reading them, Mr Solicitor.

MR GRIFFITH:  Your Honour, it certainly rolled back our

barriers of ignorance in preparing the materials.

As to whether it assisted the Court, it is a matter

of reading one or two of Your Honours' judgments to

answer that question. But at the end of the day,

if we had had the confidence of our convictions, we

could have argued the matter in 20 minutes on

external to Australia and sat down. But one does

not necessarily have that confidence, Your Honour.

Here we do, but none the less we press on with

alternative arguments.

BRENNAN J:	In dealing with the matter of Buttes Gas v Hammer and with Dr Mann's comments, do you say that
the question of foreign territory, or sovereignty
over territory, is not justiciable or is concluded
by the executive certificate?
MR GRIFFITH:	Your Honour, it could arise, as it did in the

Buttes' case, that there could be an issue of the extent of foreign State territory, incidental to a

matter properly before the Court. Now,

Your Honour, if there is such a matter, it could be

the case that an executive certificate could

resolve that issue so the Court does not have to

determine it.	Now, Your Honour, we would
accept - - -

BRENNAN J:  You mean, the Court does not have to determine

it independently?

MR GRIFFITH:  Yes. We say Your Honour cannot determine it

independently.

BRENNAN J: Yes. That is not quite the same as saying an

issue is not justiciable, is it?

MR GRIFFITH:  Your Honour, "justiciable" perhaps has several

meanings in the context of our submissions but the

essence of our meaning is the Court in no

circumstance may determine this issue for itself.

BRENNAN J: For itself?

MR GRIFFITH: Yes.

BRENNAN J:  Or putting it another way, may not determine it

differently from that which the executive has

already determined.

MR GRIFFITH: Although in circumstances that may mean,

Your Honour, if that is the only issue brought

Horta 103 10/8/94

before the Court there is nothing to determine, so

there is no matter. But it is a case of all

signposts, in our submission and, Your Honour, we

make the point, and try and be short at the end of

our submissions, that answering all these
questions, one must look then very closely at the standing issues to consider or not whether or not

there is requisite standing to engage upon

consideration of these issues at all. But,

Your Honour, we do prefer, for the reasons stated

yesterday, to deal with that as a suffix to our

argument rather than detaining the Court on that as

if that was the issue before the Court, and the

only issue as in the ACF case or in the Onus case.

My learned friend made some reference to the

legislative amendments, particularly effected by

the Consequential Provisions Act of 1994, to the

Sea and Submerged Lands Act. He also referred to

the preamble to the Treaty. Of course the

arrangements made by the Treaty are arrangements

made with respect to offshore territory of
Australia to which Australia asserts that it is

entitled, pursuant to relevant principles of

constitutional law, to exercise rights over these

areas as part of its own continental shelf. The

preamble makes it clear that those claims made by

Australia continue to be asserted.

So the essence of the arrangements under the

Act, and that is confirmed by reference to the two maps which are appended to our documents of

supplementary materials, fall wholly within areas

which are claimed by Australia as being part of

Australia's continental shelf. The arrangements
made by the Treaty, as stated by the preamble, were
merely interim arrangements to enable Australia to

engage in acts of exploration and exploitation of
parts of offshore areas adjacent to and contiguous

with Australia which remain, so far as Australia is

concerned, part of territory which Australia may

exercise full sovereign rights in so far as

international law recognizes the exercise of those

sovereign rights to adjacent continental shelf. Australia has done no more than make practical

arrangements with an adjacent State to ensure that
it is able peaceably to exercise these rights of
exploration and exploitation over these adjacent

areas which, it claims, it is entitled under

international law without any restriction to

explore and exploit.

DEANE J:  Mr Solicitor, in paragraph 5.12 of your

submissions it says all of the Timor Gap "lies

beyond the territorial seas of Australia". Is

there any basis for that? I am not suggesting it

Horta 104 10/8/94

is wrong but should that not be in the case stated

if it - or is it in the case stated?

MR GRIFFITH:  Your Honour, the territorial seas can only be

12 miles from the base line and it is self-evident,

from the scale of the map that all this area is

further out than that.

DEANE J: What, so we get it from there?

MR GRIFFITH:	I thought it would be - no issue, Your Honour.
DEANE J:	I was not really sure, I must confess, that it was

now quite clear that territorial sea did not

correspond with continental shelf.

MR GRIFFITH:  No, Your Honour, the territorial seas runs

from 12 miles from the base line and I do not think

there is any difficulty about base lines in this

area and my learned friend, Mr Castan, indicates

that it is common ground that the entire area is

off shore.

DEANE J: That answers my query, thank you.

MR GRIFFITH:	Your Honour, what is common ground also is that the northernmost area, area C, represents the
limit of Australia's claim.  So the entire areas,
A, Band C, remain within the area still claimed by
Australia as its continental shelf, a claim which
is disputed by Indonesia.
DEANE J:	It has probably got nothing to do with the case

but what is the fact? Does a continental shelf

extend from Australia to East Timor?

MR GRIFFITH:  Your Honour, this is very interesting because,

originally, it was regarded as being controlled by

the North Seas Fisheries case and the decision of
the International Court of Justice. Prior to the

Geneva Convention, Your Honours, it was thought

that one could go, by a geomorphological analysis,

to a point where there was a break - for example, a
trench - and these views are reflected in the

Geneva Convention but are modified, firstly by

State practice since the Geneva Convention and,

secondly, now by the Law of the Sea Convention

which I could indicate to Your Honours is not yet

in force; it does not come into force until

November this year.

So there has been a gradual modification over

the decades of State practice. At a time when

there were negotiations with Indonesia in the

late 1960s leading to 1972, the analysis by

reference to geomorphological bases enabled an

agreed basis to be fixed by reference to the trench

Horta 105 10/8/94

which was referred to yesterday by my learned

friend, Mr Castan. So that the agreed red line

that one sees on the maps annexed to our

supplementary submissions with the break at East

Timor represent what was agreed by reference to the

principles in existence at that time.

There is now, Your Honours, a broader

expression of the rights of the continental shelf. It is not limited to 200 kilometres, and under the provisions of the Law of the Sea Convention there

is a period of ten years provided for resolution of
the question of the extent of continental shelf,
and in the absence of any competing State claim

there are mechanisms under the Law of the Sea

Convention to determine what are those claims.	If
there are opposable claims between States, there
are not mandatory provisions under the Law of the
Sea Convention to provide for the resolution of
those disputes, but it is contemplated that they
will be resolved by one mechanism or another.

DEANE J: What I was really asking as a matter of interest is does the trench continue between Australia and

East Timor?

MR GRIFFITH: Yes, Your Honour.

DEANE J: That was all I was asking.

MR GRIFFITH:  Yes, Your Honour. I am sorry Your Honour, I

gave a long answer to a short question.

DEANE J:  I was not clear that that was so.

MR GRIFFITH: Basically, Your Honour, our line goes to the

trench.

DEANE J:  I see.

MR GRIFFITH: And Your Honour, the claim put against us is

that, at the very furthest, there being an opposing

continental shelf which should be the median line

and we continue to assert our claim to the trench

and the preamble of the Treaty makes it clear that

we have not given that up.

I mentioned that the Seas and Submerged Lands

Act now adopts the provisions of the Law of the Sea

Convention and of course it has done that

prospectively before the Law of the Sea Convention

has come into force.

Australia has not denounced the Geneva

Convention to which it remains a party, although

when the Law of the Sea Convention comes into

force, that will have the effect as between parties

Horta 106 10/8/94

to the Law of the Sea Convention supplanting the

Geneva Convention. But it still could be, at the

moment, a matter of dispute between States as to

whether the international law is represented by the Sea Convention or by some modification even since the Law of the Sea Convention text was

settled in 1982.

But my learned friend referred to the various

amendments which have been effected to bring in
reference points to the Law of the Sea Convention. Our submission is those amendments do not have the

effect, and certainly no retrospective effect, on

the matters already covered by the previous

legislation providing for the bringing into effect

in Australian legislation in the two Acts under

attack by the plaintiff's case, following upon the

making of the Timer Gap Treaty.

There is no overlap in operation between the

Seas and Submerged Lands Act and the Consequential

Provisions Act and certainly there is no

inconsistency between the amended Seas and

Submerged Lands Act and the operation of the two

Acts which are under attack in this litigation.

My learned friend particularly referred to section 12 of the Seas and Submerged Lands Act

referring to the proclamations by the Governor-

General by reference to international law. There
in fact have been no proclamations made by the

Governor-General under that section with reference

to this area. And the reason why that should be so

is obvious, because the matters are still under

dispute and not finally resolved.

Australia has made its claims but the

opposable State has not either made agreement with

Australia or withdrawn its claims with respect to

conclusion of what is hoped a final agreement as to	Treaty represents an interim arrangement pending that. So far as Australia is concerned then, the	the extent of the adjacent continental shelves
between Australia and East Timor and so far as
allegations are made that those arrangements and the consequential legislation is in breach of
international law, those allegations are stoutly
denied.

Having made those preliminary comments, may we

turn then to what can be put as the short answer to

what was just put to me by Justice McHugh, that

this deals with, so far as the Acts are concerned,

they deal with issues external to Australia.

Horta 107 10/8/94

The Commonwealth in its written submissions

did make what was then sought to be a short point,

in answer to the claim of the plaintiffs as made in

the written submissions, that it was sufficient to

justify validity of these provisions that they

dealt with matters external to Australia. That is

in paragraphs 5.10 to paragraph 5.14 of our

submissions.

The approach then of the plaintiffs in their

case to answer this proposition was to postulate

what is put in their further written submissions

filed in the Court on Monday, that the proposal

that the external affairs power was limited by an

implied limitation that its exercise would be

invalid if the Court finds it is contrary to

international law. Our submission is that Polites

and Fishwick v Cleland do establish that the

Commonwealth may enact legislation which is

inconsistent with international law if authority is

required for that proposition.

We submit that the external affairs power in

this aspect is no different from the exercise of

any other Commonwealth legislative power. The

plaintiffs say that the external affairs power,

even when exercised by reference to matters

external to Australia, is subject to the same

restriction. In paragraph 6 of their further

submissions, they refer to Burgess, Ex parte Henry

as authority for that. But to us, Polyukhovich in

itself is now clear authority - and we say
unanimous authority - of this Court that the

external affairs power does give a general power of

extraterritorial legislation. Certainly we submit

that the view of the Court was unanimous that the

power is not limited by consistency to

international law.

Our submissions on the paragraphs to which I have referred give particular page references to

Your Honours' judgments, and I will not take

Your Honours to them other than to make the point

that, in our submission, Your Honours

Justice Brannan and Justice Toohey, in looking for

a matter of connection or Commonwealth interest as

a requirement for the exercise of the power by

reference to matters external to Australia,

certainly in your reasoning sought no requirement

for consistency to international law. I will let

Your Honours' judgments speak for themselves so far as the words there used.

This was of course quite consistent with what was said in New South Wales v Commonwealth,

135 CLR 337. We give page references in our

Horta 108 10/8/94

materials, but particularly Justice Jacobs at

pages 497 and 498 said:

The express power of the Australian Crown

to make laws with respect to places outside,

or matters or things done outside the

boundaries of the Commonwealth is no more

fettered by notions of extra-territoriality

than is the power possessed by the British

Crown. That power ..... is wholly without limit

when exercised by the Crown in Parliament.

Hence sprang the sovereignty of the British

Parliament at Westminster and it followed that

no statute of that Parliament could be held

invalid on any ground whatsoever, even if it

invaded the rights of the Crown or of the
subject under the common law, even if it

operated extra-territorially and even if it

violated international law.

This also was consistent with what Your Honour the

present Chief Justice said at pages 470 to 471.

In Polyukhovich both Your Honour the

Chief Justice at page 529 and Your Honour

Justice McHugh at page 713, referred to Reg v

Foster; Ex parte Eastern and Australian Steamship

Co Ltd, 103 CLR 256, particularly Justice Windeyer

at page 308 who said:

So far as the Commonwealth is concerned, it is now for Parliament alone to judge whether a

measure in respect of any topic on which it

has power to legislate is in fact for the

peace order and good government of the

Commonwealth.

Your Honour the Chief Justice added at page 529 of

Polyukhovich:

This comment applies with particular force to

an exercise of the external affairs power.

So the decision in Polites that exercises of

legislative power by the Parliament are not subject

to judicial review on grounds of inconsistency with

international law must, we submit, similarly apply

with equal force to exercise of the external

affairs power. It would be contrary to authority

to seek out the external affairs power as being

subject to a limitation not held to exist to other

powers.

Of course, there are many occasions where the

exercise of the external affairs power is by
reference to a matter of Commonwealth legislation

which can also be justified by other powers of

Horta 109 10/8/94

section 52, for examples, section 52(i),

section 122 with respect to territories, and if

those powers are not limited by international law

it would be, we submit, an extraordinary
construction to find that there is an implication
by reference to exercise of the same legislative

function, but one which would be supported by the

external affairs power.

If the Commonwealth, for example, enacted laws making it unlawful in a foreign country, in the

course of trade and commerce between Australia and

a foreign country, to engage in a certain

transaction that legislation would be valid

exercise of the trade and commerce power but, on my

learned friend's submissions, would not be a valid

exercise of the external affairs power if you could

make out an argument that it was contrary to

principles of international law. One can imagine

similar examples with respect to exercise of the

defence power.

BRENNAN J:  Mr Solicitor, the proposition that international

law is not part of municipal law seems to be fairly

well established, I would have thought.

MR GRIFFITH: Yes, Your Honour.

BRENNAN J:  Does that carry with it the implication that so

far as international law is concerned its role is

that of providing the answer to a constitutional

fact inquiry?

MR GRIFFITH:  Your Honour, one has to postulate what the

particular circumstance in fact is. Now,

Your Honour, in the case of Burgess, for example,

in navigation regulations which is supported by reference to a treaty, one then has the obvious inquiry, Your Honour, of constructing the treaty to

find out what it authorizes.

BRENNAN J: Quite.

MR GRIFFITH: And to establish whether or not there is

faithful or sufficient compliance to the

requirements of the treaty.

BRENNAN J:  But in terms of the analysis that has to be made

in determining the constitutional validity of a law

passed by the Parliament, the question is, is it

not, does the Treaty produce an obligation, for

example, if that be the basis on which the law is

sought to be upheld?

MR GRIFFITH: If that be the basis.

BRENNAN J: If that be the basis.

Horta 110 10/8/94

MR GRIFFITH: So, in Polyukhovich, Your Honour, it was

sought to get support from customary international

law - - -

BRENNAN J: Quite. It is not the only basis, that is the

point.

MR GRIFFITH: Yes.

BRENNAN J:	It seems to me that that really is the ultimate analysis that has to be made, is it not?
MR GRIFFITH:	Your Honour, there can be cases where a

construction of a treaty are relevant for the

purposes of this Court deciding validity. But, we
submit, Your Honour, it can never be the case to

determine the issue here sought to be raised

whether or not there is sovereignty in Indonesia

over East Timor.

BRENNAN J:  I understand that.

MR GRIFFITH: Yes.

BRENNAN J: But, it seems to me that if one is looking at

the question of judicial review, one must be

looking at a question of a legal principle by

reference to which the judicial review is to take

place. If international law is no more than a fact

providing material than there can never be judicial

review based upon non-conformity with international

law.

MR GRIFFITH: Yes, Your Honour. What we say is that there

cannot be judicial activity, even in a

constitutional context, which determines
relationships between Australia and a foreign

State. Our submission is, Your Honour, that is not

an area for discourse within the courts, even

within the issue of constitutional review. This

Court must decide constitutional facts, but our

submission here is the constitutional fact here is

the sovereignty recognized by Australia, the making

of the Treaty recognized by both parties as being

binding.

So, although the Court, Your Honour, is free

to find that as a fact, having found the fact, we

say, by reference to the equivalent of the

agreement, or - parties cannot agree constitutional facts when they are not true, Your Honour, but that

is regarded as equivalent to a certificate here.

That is the constitutional fact. It is the only

fact that can here arise and that forecloses any

further examination, in our su~mission.

Horta 111 10/8/94

But, Your Honour, we do intend to enlarge on

this somewhat in our submissions when we turn to
this question of justiciability as distinct from

the question of the content or alleged restriction

on the external affairs power, which is the point

we refer to at the moment. I will not take the

Court again to the maps - which I see Justice Deane

is looking at - which indicate clearly enough that

this deals with matters geographically external to

Australia and, we say, matters with respect to the adjacent continental shelf where Australia claims its sovereign rights according to international

law. We say that that is sufficient and that an

allegation that the Treaty is void for being

contrary to principles of international law or that

the performance of the terms of the Treaty by the

enactment of the Act and the consequential

provisions result in invalidity, are merely

irrelevant allegations.

The plaintiffs seek to rely upon section 3 of

the Act as a statement of legislative intention to

limit support for the legislation as being

legislation which Parliament desires to be

supportive as an enactment of the Treaty obligation

affairs power or any other power. Your Honour	and in no other way referable to the external one basis one can say that the implementation of a
Treaty does not require the exercise of the
external affairs power at all. But my learned
friend's submissions, as we understand it - and
that appears in paragraph 24 to 25 of their further
submissions - is that section 3 of the Act confines
the inquiry of validity to characterization under
the heading of giving effect to the provision of an
international treaty to which Australia is a party.

Our written submissions, paragraph 5.1 to 5.6

deal with this issue, but our submission is that

section 3 cannot affect or limit Parliament's
constitutional legislative powers.	Even if there

had been no negotiations or agreement or Treaty

between Australia and Indonesia, we submit,

Parliament would have had the power under the

external affairs power to enact legislation

governing petroleum exploration and exploitation in

the Timor Gap as an area geographically external to power to enact the legislation giving terms to the

effect of the agreement and the Treaty concerning

the regulation, whether or not that agreement
constitutes a valid and binding treaty under
international law. Indeed, whether or not it is

legal under international law.

Horta 112 10/8/94

Justice Murphy, in the Seas and Submerged Lands case, at page 504, made the same point. It

was put that the Act did not faithfully replicate

the provisions of the convention. His Honour said,

"Well, that does not matter, because there is a

capacity in any event to make provisions of this

sort". Parliament has, of course, taken the view

that the Treaty is a valid and binding Treaty under

international law. That is why it has enacted the

legislation; to give effect to it. Section 3, in

our submission, merely explains Parliament's

purpose, but it is not relevant as to the extent of

the Commonwealth's legislative power.

So that when the plaintiffs, in their further

submissions at paragraph 23, say that the true

object of the Act:

is to give effect to the relevant

international law regime created by

the Law of the Sea Convention and then assert that:

The law is manifestly are not reasonably and

appropriately adapted to that purpose ..... if

the Treaty is illegal or void.

In our submission, the plaintiffs are inviting the

Court to engage in an inappropriate inquiry. It is

not the correct characterization of the operation

of section 3.

We have already made the point of the temporal

difference in as much as the Act and the

Consequential Act, of course, came into effect

before the provisions of the Law of the

Sea Convention had even come into effect

themselves. That does not happen for another two

months.

The purpose of the legislation is not to give

effect to the Law of the Sea Convention.	It is as
stated in section 3:

to enable Australia to fulfil its obligations

under the Treaty.

That is a matter which involves laws dealing with matters external to Australia and if that is the case, in our submission, that is sufficient.

The agreed fact 8, which we have referred to, states a view that Parliament has taken the view

that the Treaty is consistent with international

law. As Parliament has determined that Australia

has certain obligations under international law

arising from the Treaty, and that the legislation

Horta 113 10/8/94

is appropriate, in Parliament's view, to do what is

necessary to enable Australia to fulfil its

obligations, we submit that there is no capacity

for the Court to do other than to accept the fact
that the Acts and the Consequential Provisions Act
operate according to their tenor. Section 3 does
not limit Parliament's power to implement the

Treaty. It would be a curious self-imposed

limitation and, in our submission, there is no
basis to construe section 3 as expressing anything
more descriptively, that Parliament desires the

Treaty to be implemented by this legislation.

One final point we would make about the

external to Australia power, by reference to which
external affairs may be exercised, is that it is

not a purposive power, unlike other aspects of
external affairs. It only requires a connection

with matters external to Australia. This much is

made clear by Polyukhovich. So in that case we

submit there is no scope for inquiry as to whether

or not the legislation is appropriate or adapted

for the particular purpose.

DAWSON J: You say the external affairs power is a purposive

power, do you? It is not relevant at the moment.

MR GRIFFITH:  Your Honour, if one is enacting a Treaty, such

as in Burgess, there can be inquiry as to whether

one complies with the purpose of enacting the

Treaty.

DAWSON J: That does not make it a purposive power.

MR GRIFFITH:  Your Honour is correct. That is the

difference we are seeking to make, Your Honour.

Perhaps I should have made it more clear, but

Your Honour is quite right.

If that is taken as the short point, of course, our submission is that will dispose of all	the international law issues arising in this case,	and it is unnecessary for the Court to consider
whether or not the legislation can be regarded as a
valid exercise of external affairs power on the basis that it deals with Australia's relations with
another nation. We deal with that fully in
paragraphs 5.15 to 5.19 of our submissions. Or on
the basis that it implements an international Treaty to which Australia is a party. This is
paragraphs 5.20 to 5.28. On any view the entire
claim must fail.

Your Honours, that is our short answer to the

plaintiffs' case and I suppose, Your Honours, if we

did have confidence that, as we said, having nailed

himself to the mast, my learned friend was then

Horta 114 10/8/94

left hanging because this point removes his

support, we would make no further submissions to

the Court.

There is also a longer route to the same

result and if I could detain the Court a little

time for that we would like to explain further why

we say that this claim must fail. First we say, of

course, that the Commonwealth does not consider

itself not bound by international law. We

recognize that international law exists and it is

legally binding on all States. We are committed to

promoting and observing international law by all

States.

Since 1975, we have led by example by

accepting, without reservation, the compulsory

jurisdiction of the International Court of Justice,

under Article 36.2 of the statute of the court, the

optional clause. As the Court sees from the first

annexure in our supplementary materials, Australia
is engaged in the course of a proceeding at the
suit of Portugal in discourse before the court

dealing with issues concerning Portugal's alleged

claims as an administering power with respect to

East Tirnor and, also, specifically with respect to

claims made by Portugal claiming they are opposable

to Australia and in the absence of Indonesia to

secure, in effect, appropriate declarations of the

International Court that the Treaty is contrary to international law and for claims that Australia

should cease to carry out its terms.

However, the Commonwealth does recognize that the Treaty is a valid and binding treaty. It came:

into force on 9 February 1991, and considers

that entry into the Treaty and performance of

its terms is consistent with the

Commonwealth's obligation under international

law.

The Indonesian Government has conducted itself

in its relations with the Commonwealth on the
basis that the Treaty is a valid and binding

treaty under international law.

That is agreed fact a. Agreed fact 9 is:

So the question for Australia is not whether

Australia should comply with international law but

we submit the Court is really asked to answer the

question: who decides what are the obligations of

Australia and of other sovereign States under international law and whether those obligations

have been complied with?

Horta 115 10/8/94

We say the question before the Court is: is

it appropriate for Australian courts to undertake

this function? We say that in a situation where

already, by agreement between two States, Portugal
and Australia, as both parties to the optional

clause, the International Court of Justice is

considering those very sort of issues. Of course,

there has not been the necessary agreement from a

third State but that is a matter for the

International Court of Justice to consider and to

make its judgment on the arguments which are put	before us.
So we do not suggest that the courts can never determine whether the Act and the Consequential
Provisions Act are a valid exercise of external
affairs power. But whereas here the sole ground of
attack is the alleged inconsistency with international law, we say that the issue of
conformity of the text with the Treaty not being a matter where there is attack and, indeed, could not
be attack on the validity of the Acts, it becomes a
situation where the Court is incapable of holding the legislation invalid on the sole ground that it
is inconsistent with international law because if
that happened the Court would be seeking to
administer and enforce international law.
I will not take the Court again to the list of matters in paragraphs 1.l(c) to 1.l(g), at page 1
of our submissions, but those are the issues we
refer to as being inappropriate for the Court to
consider. What we put is the rule of municipal
law, so far as that is concerned, we submit, is one
which also exists in international law because it
is a fundamental rule of international law that no
State can unilaterally determine the rights and obligations of another State under international
law in a way which is binding on that other State. International legal disputes between States
can only be resolved by means agreed between the
parties. No State can be compelled without its
consent to submit its disputes with other States to
arbitration or any form of pacific settlement
although, of course, in the case of the options
clause States may prospectively agree in advance to
submit all disputes which may arise between
participating States to that options clause that
come within the terms of a prospective submission.

In the status of Eastern Carelia Advisory

Opinion, (1923) PCIJ Ser B No 5 at page 27, it is

said by the Permanent Court of International

Justice:

Horta 116 10/8/94

This rule, moreover, only accepts and applies

a principle which is a fundamental principle

of international law, namely, the principle of

the independence of States. It is well

established in international law that no State

can, without its consent, be compelled to

submit its disputes with other States either

to mediation or to arbitration, or to any

other kind of pacific settlement.

It necessarily follows - and I could give the Court

references also to the Monetary Gold case,

ICJ Reports 1954, p 19; the Western Sahara

Advisory Opinion, ICJ Reports 1975, p 12

particularly at page 23 to 25 of the International

Court's judgment - that it must follow, in our

submission, that municipal courts cannot, as a

matter of international law, judicially determine

disputes arising under international law between

the forum State and a foreign State, or between two

foreign States in the absence of the consent of all

States concerned.

Any decision of the Court in this case on the

disputed issue, the rights and obligations under
international law of Australia, Indonesia, Portugal

and the people of East Timer would not, in our

submission, be a judicial decision. It would not

be authoritative and binding between the parties as

a matter of international law. Any pronouncement

by this Court as to the legality of particular

States' conduct under international law would, at international law, be no different from a statement

from the Australian Government. It would be a

statement of an organ of the Australian State as to

what Australia considers the position to be. Other

States could agree or disagree.

As a matter of international law the dispute

would remain to be determined.	The Court's
conclusion would be a statement of Australian

policy, not a judicial pronouncement. Any finding

by this Court that the Treaty and its performance

is consistent with international law would not be

binding on the people of East Timer. It would not

be binding on the plaintiffs in this case to the
extent that the people of East Timor may be

regarded as having international legal personality,

and the plaintiff claiming as their

representatives, they would be free in

international forums to ignore any decision of the

Court adverse to their claims.

So it is a situation, we submit, where the

plaintiffs, in effect, seek only an answer in their

favour whilst being free in other and perhaps more

appropriate international forums to plead their

Horta 117 10/8/94

case as to their rights in respect of Indonesia's

actions and conduct.

Portugal and the people of East Timor would

certainly continue to assert that the Treaty was

void and illegal under international law, even if
this Court were to determine otherwise.

So it is our submission for the Court to even address these substantive issues would be

inconsistent with the judicial function and also

would risk undermining the dignity of the Court.

If the Court were the find that the Treaty

were void, that of course would not be binding on

Indonesia in any international court or tribunal.

If the Court were to find that Indonesia was not sovereign, and for example that the Treaty and the

legislation was invalid, Australia might be in the

position that it could not give effect to the

provisions of the Act and the Consequential

Provisions Act. Indonesia then would be free to

make a claim against Australia under international

law under breach of treaty obligations.

Unless and until an international court or tribunal of competent jurisdiction found the Treaty

invalid, the Treaty would remain binding on

Australia and Australia would be in breach of

international law if it complied with the effect of

the order of this Court to that affect. So

Australia would be in a position as a matter of

international law, it would have obligations under

the Treaty which it was bound to perform, but which

it would be incapable of performing because the

High Court had held that the necessary domestic

legislation was invalid for the reason that there

was no Treaty obligation.

This of course is dealing with mere

possibilities but they are matters which we submit

are appropriate to be addressed in analysing what Whatever the Court decides will not be binding the plaintiffs put before the Court.

on the United Nations, will not be binding on any

member State of the United Nations or their

attitude that they may adopt in the Security

Council or the General Assembly in relation to East

Timor.

We submit the question of the validity of the Treaty is one to be left and resolved at the

international level and not by this Court. These

sort of realities, we suggest, were admitted by

Your Honours in Queensland and the Commonwealth,

particularly in the judgment of Your Honour the

Chief Justice and Justices Brennan, Deane, Toohey,

Horta 118 10/8/94

Gaudron and McHugh. This is reported in

167 CLR 232, but at page 239, six of Your Honours

said:

which can affect the existence under	this Court has no jurisdiction the exercise of
international law of any purported obligation imposed on Australia. In Secretary of State
for India v K. B. Sahaba Lord Kingsdown said:

and this was in 1859:

"The transactions of independent States

between each other are governed by other

laws than those which Municipal Courts

administer: such Courts have neither the

means of deciding what is right, nor the

power of enforcing any decision which

they may make."

There is similar statements in Johnstone v Pedlar,

(1921) 2 AC 290, where it said:

Municipal Courts do not take it upon

themselves to review the dealings of State

with State or of Sovereign with Sovereign.

Lord Oliver, with three of the Lordships agreeing,

in J.H. Rayner (Mincing Lane) Ltd v Department of

Trade and Industry (1992) AC 499, said:

It is axiomatic that municipal courts have not

and cannot have the competence to adjudicate

upon or to enforce the rights arising out of

transactions entered into by independent

sovereign states between themselves on the

plane of international law.

Justice Kirby in Young v Registrar Court of Appeal

No 3 in (1993) 32 NSWLR 262, at page 273 said:

it has been uniformly accepted that

international law does not become part of "the

law of the land", unless it is validly adopted

by parliament, or incorporated by a decision
of the judges ..... it is not, at this stage of
the development of the law, open to a private
individual to seek redress in Australian

courts for a breach by Australia, as an

international legal person, of its
international obligations.

Similarly in the United States Supreme Court in

Banco Nacional de Cuba v Sabbatino, (1964) 376 US

398, at page 431 to 432, the Supreme Court observed

that as a practical matter, municipal courts have a

limited ability to give any remedy in respect of

Horta 119 10/8/94

breaches of international law by pronouncements by

the judiciary as the legality under international

law of the conduct of a foreign State may hinder

the executive in its endeavours to settle the

matter by diplomatic means.

So because any statement by an Australian court as to the legality of the conduct of another

State under international law would be a statement

of Australian policy rather than judicial

pronouncement. We submit it would be inconsistent

with the judicial nature of the Court to make such

statement.

This reality, of course, is reflected in the

established principle of foreign relations that it

is the executive which is responsible for the

conduct of the nation's foreign relations, subject

of course, to Parliamentary control, and that the

courts should speak with one voice with the

executive on such matters.

We make submissions as to this in our written

submissions, paragraph 1.6 to paragraph 1.10, and

also in paragraph 4.1 to paragraph 4.3, and
Your Honours will see in paragraph 1.9 we refer to

an extract from Dr Mann which is reproduced in pages 26 and 27 of our supplementary volume of

materials. We also refer to Dr Mann at page 22 of

our materials where he said:

It is the Government which represents the

State and determines its policy, though

Parliament has the right and the power to

control the Executive, to withhold confidence

in it, to refuse to grant the financial

resources required to carry out its decisions,
and thus to deprive the Government's foreign

policy of efficacy. Hence the Government must

be certain that its foreign policy has the

support of Parliament, but it is the

Government that conducts it.

On page 23 of our materials, he says:

It is the State, represented by the

government, that conducts foreign affairs.

On page 24 he makes the obvious point:

The legal position thus summarized is by no means unique to the United Kingdom.

We submit that the common law principle exists

under the Australian Constitution, and the

Commonwealth Constitution must be read against the

background of the common law, including the common

Horta 120 10/8/94

law rights and powers of the Crown. We deal with

that in paragraph 1.10 of our submissions.

This Court has recognized the Court should not

make determinations which will inevitably present a

risk of embarrassment in Australia's relations with

other countries. Reference has been made by my

learned friend Mr Castan to Heinemann, and suffice

if I refer Your Honours to the judgments of six of

Your Honours in 165 CLR, page 43 to 44 and page 47,

and Your Honour Justice Brennan to a similar view
on page 51. That does not mean, of course, that

Australia acts in a manner contrary to international law or Australia should act as an

international outlaw, as is suggested by
paragraph 8 of the plaintiffs' further submissions.

It merely suggests that the High Court is not the appropriate forum for dealing with these issues.

The executive decides for itself what

international law permits or requires and conducts

its foreign relations accordingly. Parliament

determines for itself when enacting legislation

what international law permits or requires.

Parliament also has the constitutional power to

prevent the executive from engaging in conduct

which Parliament considers would violate

international law. The executive may determine

that it considers the conduct of another State has

violated international law. It may make diplomatic

protest, it may invoke international dispute

settlement procedures which exist under

international law. Another State which considers Australia has not complied with international law

can do the same in relation to Australia. It

occurred with respect to Nauru, it is occurring
with respect to the claims made by Portugal by

reference to East Timor.

International disputes may be settled

judicially by an international court or tribunal,

if all parties to the dispute accept its

arbitration. They may be settled by mechanisms

under treaties to which all parties to the dispute

are parties or by some other process which parties
may agree. Otherwise international disputes can
only be settled, if they are to be settled
peacefully, by a process of diplomatic protest,
acquiesence, negotiation and agreement. Except, of

course, this Court can have regard to principles of

international law. As we have mentioned, domestic

courts in some cases may ascertain the existence of
a rule of international law for the purpose of

applying domestic law. Australian courts may have

regard to customary internatio~al law and treaties

when developing rules of common law. They may

interpret provisions of treaties which have been

Horta 121 10/8/94

incorporated in domestic law by legislation, or when interpreting the provisions of legislation

enacted to give effect to a treaty.

Once a rule of international law is adopted by

Parliament or incorporated in the common law, it is the statute or the common law which the courts apply. Such decisions of municipal courts may

themselves be a subsidiary source of international

law. This is provided in the statute of the

International Court of Justice Article 38,

paragraph D. But in those cases, the courts were

concerned with the ascertainment of international

law principles in the abstract. We submit

Australian courts are not the appropriate forum for

determining as a matter of law whether or not

particular conduct of Australia or another State

has violated international law or for determining

what are the respective rights and obligations of

Australia and other States under international law in respect of a specific international situation or dispute.

This is the point we make in paragraph 1.17 of our submissions. Australian courts may ascertain

as a matter of fact the existence of an

international Treaty for the purpose of determining

whether a particular law is supported by the

external affairs power. we deal with that in

paragraphs 5.24 to 5.26. But we submit that it is

the executive and Parliament and not the courts who

have the constitutional responsibility for the

conduct of Australia's foreign relations. This is

reflected in the principle established by this inconsistent with international law. The courts,

we say, do not review legislation for inconsistency

with international law. This reflects the nature

of international law itself. If legislation

enacted in reliance on the external affairs power

could be reviewed by the courts for inconsistency,

it would defeat the purpose of the external affairs

power. In some cases it would prevent Australia

from participating in the formation of new rules of

customary international law.

My learned friend, Mr Castan, referred to the evolutionary process of the developments from the

Geneva Convention to the coming into force, as I

say, prospectively in two months' time of the Law

of the Sea Convention. But if it were the case

that Australia could only act consistently with

principles of international law, it would mean that

Australia would be disabled, it would become an

international cripple, unable to participate in the

evolutionary process of the creation of

international law. Akehurst, in A Modern

Horta 122 10/8/94

Introduction to International Law, an extract which

appears on page 42 of our supplementary materials,

says:

Customary law has a built-in mechanism of

change. If states are agreed that a rule

should be changed, a new rule of customary

international law based on the new practice of

states can emerge very quickly ..... The real difficulty comes when the states supporting

the change and the states resisting the change

are fairly evenly balanced. In this case

change is hard and slow, and disagreement and

uncertainty about the law may persist for a

long time until a new consensus emerges (the

controversy about the width of the territorial

sea is a good example.

In cases where existing international law is

unclear, the settlement of dispute is inseparable

from the legislative process of international law

making since the pattern of protest, acquiescence

and negotiations between States will lead to

crystallization of new rules of customary

international law.

Even when a customary international law rule

is clear, that can be modified by subsequent State

practice. An act of State which at the time

appears contrary to established rule of

international law may subsequently be seen as an

early example of State practice which led to the

formulation of new rules of international law.

Whether that occurs depends upon the reaction of

other States to that conduct. As Akehurst says at

page 41 of our materials:

If some states claim that something is law and other states do not challenge that claim, a

new rule will come into being, even though all

departure from pre-existing rules. the states concerned may realize that it is a Thus, what attitudes States take in regard to

legality under international law of their own

conduct, and of other States, is determined as much

by policy considerations as to how international

law should develop in the future. It is by

legalistic considerations of what international law
is at present. Again, referring to the Sabbatino

case, 376 US, at page 432 to 433, the Supreme Court

said:

When articulating principles of international

law in its relations with other states, the

Executive Branch speaks not only as an

interpreter of generally accepted and

Horta 123 10/8/94

traditional rules, as would the courts, but

also as an advocate of standards it believes

desirable for the community of nations and

protective of national concerns.

So, for those reasons we submit it is inconsistent

with the judicial function for the Court to

determine what Australia's attitude on matters of

international law should be in its relations to
other States.

It is for Parliament and the executive, in our submission, to be the advocate of standards on

behalf of Australia in the international arena. If

other States disagree with Australia, the dispute

falls to be resolved in the international law

plane, not the municipal courts of one of the

parties to the dispute. Indeed, the dispute, so

far as it is opposable by Portugal, is presently

being so resolved.

The view taken by the plaintiffs on the

restriction of the external affairs power would not

support legislation whereby Australia would be one

of the early States to adopt a new practice leading

to a change in existing rule of customary

international law. Any such legislation should be

challenged on the Court finding that it was

inconsistent with the established rule, and then in

that way it would be beyond external affairs power.

Of course, it is not possible to have a distinction

between worthwhile improvements in international

law which could be supported as not being within

the proposed exclusion, and those derogatory ones

which were not worthy of support.

The Commonwealth would have no choice, so far

as it is a participant in the international

community, to wait until other States had adopted

practice, so that the evolution of international

law would proceed without Australia's

participation. For example, presently it is

inconsistent with customary international law for

States to claim a territorial sea more than

12 miles. If, at some time in the future, States

practice enable territorial sea of up to 15 miles,

as, for example, States practice enabled the

accretion from three miles to 12 miles, on my

learned friend's submission, Australia would not be

in a position to claim 15 mile territorial sea

unless the new rule had clearly been emerged as an

accepted rule of customary international law, or

one provided by a treaty to which Australia was a

party.

Horta 124 10/8/94

So, the view taken by the plaintiffs would mean that Australia, in the exercise of its foreign

affairs power, would always follow and never lead.

McHUGH J:  I was going to put that to Mr Castan yesterday,

that seemed to be the result of his submissions;

Australia could never lead.

MR GRIFFITH: Yes, Your Honour, and I did not discern a

satisfactory answer to that, but it is put,

Your Honour, that we cannot act as an international outlaw. What we say is that we would be acting as

an international cripple. We would be incapable,

to use the expression of Justice Murphy in NSW v

The Commonwealth, 135 CLR at 503, of:

acting effectively as a member of the

community of nations ..... would be an

international cripple unable to participate

fully in the emerging world order.

We say, Your Honour, that is a necessary

consequence of the limitation.

So, as we say, in drawing this together, that

the external affairs:

power extends to all that is needed to enable

Australia -

to duly play the role of a player in the

international stage. That is the plaintiffs'

submissions, paragraph 16.

Having asserted that is the extent of the external affairs power, in our submission, the

qualification in the supplemental submission then

denies the capacity. Australia cannot be fettered

in the establishment of principles of international

law. There is no complete corpus of international

law that exists independently of Australia's

international conduct, as there is in municipal

law. It evolves with Australia's participation. It

can evolve slowly, but the plaintiffs' restriction

might have us, possibly, half a century in arrears

in so far as participating in developments are

concerned.

Our submission is then that Australian courts

apply municipal law not international law; an
otherwise valid statute or executive act will not

be held by the courts to be invalid on the ground

it is inconsistent with international law. But of

course there is a corollary to this, that neither

the executive nor Parliament can rely on

international law to justify an Act which is

invalid or legal under municipal law,

Horta 125 10/8/94

Bradley v Commonwealth, (1973) 128 CLR 557, at 582,

the judgment of the Chief Justice with to the statement of Lord Oliver in J.H. Rayner

(Mincing Lane), [1990] 2 AC 418, at 500, where he

makes the obvious point that:

a Treaty is not part of English law unless and until it has been incorporated into the law by

legislation.

Your Honour Justice Brennan, in dealing with

Re Limbo, (1990) 64 ALJR 241, at 242 said:

But when 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.

These principles, we submit, apply to the

external affairs power as much as to any other

power. Indeed, for the reasons given, they apply

with even greater force to the external affairs

power.

Your Honour the Chief Justice in Polyukhovich,

at pages 529 to 530, quoted Justice Jacobs in the

Sea and Submerged Lands Act case, 135 CLR, at

page 498, saying:

There is no gap in the constitutional

framework •..•• the Commonwealth, outside the

boundaries of the States and subject to any

particular constitutional injunctions, may

Horta 126 10/8/94

make laws on all subject matters in exercise

of its sovereignty.

The question of consistency with international law

is not a matter which falls to be considered by an
Australian court.

The reasons why we say that this Court cannot review for consistency of international law

established, we submit, that legislation dealing

with places or matters geographically external to

Australia are laws with respect to external affairs

regardless of whether they are consistent with

international law, and irrespective of the presence

or absence of a valid treaty obligation and, of

course, the Acts here are such laws. Legislation
dealing with matters affecting Australia's
relations with other nations are laws with respect
to external affairs regardless also of whether they
are or are not consistent with international law.

I refer the Court to our submissions in

paragraphs 5.15 to 5.29 with respect to that. I

have already referred the Court to paragraphs 5.20

to 5.28 with respect to our argument for giving

effect to a Treaty.

In cases where legislation on its face has a

purely domestic effect, but is justified under

external affairs power on the basis that it gives effect to a Treaty to which Australia is a party,

it is necessary for the Court to ascertain the

existence of the international obligation, and this

is the constitutional fact on which validity

depends. We deal with this in paragraph 5.24 and,

of course, Koowarta was an example of that

situation as was the Tasmanian Dam case. But in

cases such as these, determination of the existence
of an international obligation does not involve

purporting to settle an actual controversy under

international law. We would wish to refer the

Court particularly to paragraphs 5.24 to 5.28 of	our written submissions, and without now reading	that to the Court we do make the point that in
paragraph 5.25, which was referred to by my learned
friend, Mr Castan. Our proposition there is limited to laws which are sought to be
characterized solely on the basis that they purport
to give effect to an international treaty. In
cases, of course, where they are not so narrow in calling for reference points for their support as here then the broader principle applies.
My learned friend took the Court to the discussion by Justice Gummow in Re Ditfort,
(1988) FCR 347, particularly at page 367 and
following. In our submission, the analysis of
Justice Gummow is a useful discussion of issues of

Horta 127 10/8/94

justiciability, and we would submit to the Court

what Justice Gummow referred to as justiciability

in the narrow sense is the situation here.	He
firstly, of course, discussed the issue of

reference of evidence, and that in one way is the

issue here, but he referred to the question of

whether there is "a matter within the meaning of

Chapter III of the Constitution". His Honour indicated that issues which do not give rise to matters in the constitutional sense cannot be

decided by the Court because they would be

inconsistent with their judicial nature, and in

that sense His Honour indicated they would be

non-justiciable.

So here, we submit one can say there could be

a matter, so far as constitutional power is

concerned, as to the validity of the legislation.

But the scope of that matter does not and cannot extend to determining the question of sovereignty of East Timor, which is in the essence the case

which the plaintiff desires to have determined by

the Court.· At page 370, Justice Gummow said:

there will be no "matter" if the plaintiff

seeks an extension of the court's true

function into a domain that does not belong to

it, namely the consideration of undertakings

and obligations depending entirely on

political sanctions. Such non-justiciable

issues include agreements and understandings

between governments within the federation and

between the Australian and foreign

governments.

So, for the reasons given, the general principle,

we submit, is that otherwise valid legislation and

executive acts are not subject to judicial review

on grounds of inconsistency. Therefore, an

allegation that such matters violate international

law cannot and do not, in our submission, give rise

to a matter within the meaning of Chapter III of
the Constitution.

On the question of justiciability in the broader sense, which I referred to in my initial

submissions to the Court this morning, we refer to

Buttes Gas and Oil Company v Hammer as an example

of the wider issue of justiciability and matter.

There there was a matter properly before the court

but the issue which arose, the question of the
extent of the territorial sea of three adjacent

States being one which the court could not pass a

decision on, the court took the view that therefore

the whole matter was not justiciable and it was

said at page 932 that:  ·

Horta 128 10/8/94

This principle is not one of discretion, but

process. is inherent in the very nature of the judicial

So although not analysed by reference to our

comfortable views as to whether or not there is a

matter, in essence, the decision of the House of

Lords, we submit, is to the effect that, in those

circumstances, there is not a matter and therefore

there is nothing to be justiciable within the

court.

However, our principal submission is that

because the plaintiffs' arguments are non-

justiciable in the narrow sense, it is not

necessary to consider whether or not the arguments

are non-justiciable in this broader sense. The

question of whether the territory belongs to a

particular State is a fact of State on which the

executive is conclusive and, as I mentioned, in
paragraphs 1.12 to 1.15, we discussed details of

the position in Australia and under United Kingdom

law with respect to certificates. We refer also to

our supplementary materials: Dr Mann, pages 26 to

35, and the article by Crawford and Edeson,

pages 14 to 19. In particular, Dr Mann, at page 35

said:

the executive can and should decide whether

certain foreign territory belongs to one or

the other of two competing non-British States.

At page 15 of our materials, Professor Crawford and

Dr Edeson say:

the question whether recognition has been

granted ..... to changes of territorial title,

and, generally, whether certain territory is

under sovereignty of one foreign state or

another -

similarly.

It is agreed fact 4 that:

Since 1979, Indonesian sovereignty over East

Timor under international law has been

recognised -

and we say that that must be accepted in this case

or, if there is any difficulty about it - and I do

not think there is because my learned friend seems

to agree that the statement can be accepted as

equivalent to a certificate - there is no occasion

for the court to now seek such a certificate. Once

that is accepted, we say there is no basis for

attacking the entitlement of other States to deal

Horta 129 10/8/94

with Indonesia with respect to that territory or

attacking the validity of the Treaty.

Our submissions, paragraphs 1.32 to 1.33, deal

with the issue of executive certificate, and I will
not take the Court to those, but rely on their
terms. In the plaintiffs' further submissions,

paragraphs 26 to 28, there is a refutation

attempted of our submissions on paragraph 5.28,

where we say, "There is no suggestion that any

State, other than Portugal, considers the Treaty as

void or illegal under international law," and the

plaintiffs refer to the relevant United Nations

material including the Security Council resolutions

annexed to the statement of claim in the various

resolutions.

We submit, of course, the Court is not

concerned with the merits of the arguments under

international law. The Commonwealth regards the

Treaty as consistent with our obligations, and we do not seek to prove to the Court the questions of the position of other States because we say that that is not a question for the Court to determine.

What we would say is that even if other members of

the international community apart from Portugal
regarded the Treaty as void and illegal, the

legislation would not be any the less with respect

to external affairs, given that it is recognized as

valid and legal by the parties to it, and - - -

DAWSON J: Are you going to say something about the Vienna

Convention, Mr Solicitor?

MR GRIFFITH: Yes, I was going to deal with that, yes,

Your Honour.

DAWSON J: Right.

MR GRIFFITH: Yes. Your Honour, but in making this

observation - if I could dispose of that with

respect to the attitude of other States - we do

note that the Security Council resolutions annexed

to the statement of claim is dated 1976, and there

has been no general assembly resolution since 1982.

None of the United Nations resolutions state that

no State shall have dealings with Indonesia in

respect of the territory of East Timar, and we

contrast Security Council resolution of 1969 No 269
in which the Security Council called upon all

States to refrain from all dealings with the

government of South Africa purporting to act on

behalf of the territory of Namibia.

Other States, including those geographically

close, accept the incorporation of East Timar into

Indonesia. No State, as we understand it, has

Horta 130 10/8/94

diplomatic or consular relations with Indonesia has

qualified the terms of diplomatic recognition in

any way which takes account of the dispute between

Portugal and Indonesia over East Timor, and other

States have entered into treaties with Indonesia

which apply to the territory of East Timor. There
has been no criticism by the international

community from ..... United States bodies.

Now, I hear my learned friend saying, "These

are not agreed facts," but, the point we wish to

make is that my learned friends, in their

submissions dealing with their response to our

submissions, are opening up an area where there is

no gain for them and, in our submission, an area

where one must say, on any view, that the question

of the approach of other States for the purpose of
argument before this Court has no relevance. My

learned friend says we opened it up, but then we

have responded to my learned friend's response.

Turning to the executive power, question 4, we

submit of course it includes all prerogatives

relating to foreign affairs and defence and extends

to making arrangements with Indonesia in respect of

co-operative arrangements for the management of

these areas, being areas, as we mentioned, where

Australia still claims that those areas are part of

Australia's contiguous continental shelf.	We deal
with this in paragraphs 4.1 to 4.3 of our
materials.

We submit that the power under section 61 is

not limited by international law any more than any

other legislative power of the Commonwealth.	We
refer to paragraph 4.7 of our material.
Inconsistency with international law is not a

ground for judicial review of administrative action

except perhaps in exceptional cases involving

judicial review and exercise of a statutory power

where the statute conferring the power states that

the power may only be exercised in the manner

consistent with international law. There is no

relevant legislation in this case, and we have

already made references to the construction of
section 12 of the Sea and Submerged Lands Act case.

Regardless of what are possible grounds of judicial

review of executive action, we submit the exercise

of the Crown's prerogative in respect of foreign

affairs or defence are not amenable to judicial

review.

So the plaintiffs' allegations of breach of

international law are, we submit, irrelevant to the

question of executive power to conclude the Treaty

as well as the question of the power to enact the

Act and the consequential Act. If they are not

Horta 131 10/8/94

relevant, we submit they are not justiciable.	I
suppose when one conducts this analysis, one is

driven, in our submission, to the conclusion that

we have already referred to, that there is no

relevant matter for the purpose of Chapter III.

Executive acts for forming the conduct of

Australia's foreign relations may in some cases be

the subject of judicial proceedings.

The plaintiffs referred to Operation Dismantle

v The Queen, (1985) 1 SCR 441. We submit that that

is another example of the difference between

justiciability in the narrow sense and

justiciability in the broad sense. There the issue

was a decision of the Canadian Government to permit

certain activities dealing with the testing of

cruise missiles in the United States as being

contrary to the Charter of Rights and Freedom.

That was a justiciable interest in the narrow

sense, but the court was not asked in that case to

determine that for Canada to permit the United

States to test cruise missiles was contrary to international law or that under international law the agreement of Canada with the United States from

it testing was illegal or void. We say such an

issue of that sort would have been non-justiciable
in the narrow sense, even under the Canadian

Charter of Rights and Freedom.

If I could refer then to the question of the

Vienna Convention on Treaties. The Vienna

Convention has not been directly incorporated into

Australian Law. In accordance with normal rules

concerning the incorporation of Treaties into

Australian Law, it is not correct to say that it is

self-executing.

This has put my learned friend both in his

submissions at page 22 and also in argument. The

cases referred to by my learned friend relate only

to articles dealing with the interpretation of	treaties. They are Articles 31 and 32. They	indicate that where a court is called upon to
interpret a treaty, will apply relevant
international laws of that interpretation and there
is no objection as to that.
Article 53 of the Convention, dealing with void treaties on the grounds that they are contrary to jus cogens is not of the character of
Articles 31 and 32. This raises similar questions to Articles 48 and 49 dealing with error and fraud
and for the reasons we have given, questions as to
the validity of a treaty under these articles
whether it be 48, 49, 53 are not justiciable. They
raise questions of law as between States and the
application of international law in a domestic

Horta 132 10/8/94

context. So for that reason we say that the

plaintiffs are not able to rely upon Article 3 of

the Vienna Convention. If they were merely

construing it in terms of the particular Treaty

here, they could rely upon Article 31 and
Article 32.

There was a passing reference made to the blue-eyed babies situation by my learned friend in

his argument. Of course it is the case that any

legislation enacted under external affairs powers

subject to the Constitution including express or

implied constitutional rights and prohibitions.	I
do not think there is any need for me to give the

Court a reference to its own judgments as authority

for that. So that even if an international treaty

required it to do so, the Commonwealth could not

enact legislation to amend the Constitution to

effect implied constitutional guarantees, express

constitutional guarantees.

The example that my learned friend gave as to section 116 of course is not an apt one because

section 116 prohibition merely deals with the

passing of any law by the Commonwealth. Now, my

learned friend submitted that a mere treaty

providing a religious discrimination with respect

to an off-shore matter could not be supported under

section 116.

We would deny that that is the case and

perhaps an obvious example would be a treaty

agreement between Australia and the government of

Saudi Arabia for Telecom to install the telephone complex in Mecca. It could be quite appropriate to have a provision of that treaty in agreement to say

that all employees will be Muslim and we would

submit, Your Honour, that section 116 would have

nothing to say as to the effectiveness of that

agreement and, indeed, we would submit that it

would not be possible for the Court to entertain

any examination as to whether or not that provision

was effective by reference to any constitutional

doctrine either express section 116 or implied
non-discriminatory provision under the

Constitution.

DAWSON J: A treaty, to be a treaty, has to be bona fide,

whatever that means.

MR GRIFFITH:  Of course, Your Honour, we accept that.

DAWSON J: That does offer some scope for review.

MR GRIFFITH: Yes. Your Honour, is there is a suggestion

that there is not a bona fide treaty, and that

agreement has been made for the purpose to gain the

Horta 133 10/8/94

domestic constitutional power to enact, that would

be a matter the Court could inquire about.

DAWSON J:  But, bona fide may extend beyond that. We do not

know.

MR GRIFFITH: Well, Your Honour, we have not yet found a

non-bona fide case. Perhaps, when it comes, it

will be so obvious, Your Honour, that the Court

would not have to examine it. But, of course, that

is accepted as the limitation, that if a treaty can

be said to be a colourable device to enable an

attack on Australians, or the Australian

Constitution, Your Honour, the Court would not lie

impotent. Indeed, if I could pick up what

Your Honour Justice Brennan said in Gerhardy,
159 CLR at 139, he quoted the other Justice Brennan
in Baker v Carr, 369 US 217:

the courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power".

And we would accept that approach, Your Honour,

that the Court cannot be dealt out in the issues of

colourable device absence of bona £ides, and,

Your Honour, it is certainly the case that if there

were legislation arising from a treaty, it could

not infringe the constitutional guarantees. It

could not provide the establishment of religion.

It could not abridge section 92. It could not

abridge any of the other implied constitutional

freedoms which have been expressed in recent

judgments and possibly will be expressed in future

judgments of this Court.

But, Your Honour, we accept that limitation

and say that it in no way assists my learned friend

to refer to those accepted restrictions,

Your Honour, as giving him access to the necessary

principle which he must maintain, namely a

qualification in respect of the entire exercise of

external affairs power, limited to exercise in

conformity with international law.

Your Honours, for the reasons we state in

paragraphs 6 and 7 of our submissions, it is our

submission that the arguments made by reference to

taxation, and also the issue of delegation of

executive power which are incorporated into

questions 6 and 7, are not sustainable. We would

also make the point, Your Honour, that, even if

there were something in it, it seems to have

nothing whatsoever to do with the inherent
subject-matter of the plaintiffs' claim, and should
be appropriate to be, certainly, struck out with

the rest of the claim and not something which could

Horta 134 10/8/94

be permitted to run as an independent claim in

itself.

It is self-evidence, we submit, Your Honour,

that the plaintiffs have no standing with respect

to these two issues as members of the East Timorese

community or allegedly as taxpayers in Australia.

Your Honour, we submit they can have certainly no

requisite interest or standing in these issues.

But we do give a full answer on the merit and say

that there is nothing in that.

So, for those reasons, it is our submission

that the Court is none the less left in a difficult

position in dealing with this application because

there is, as we submit, the clear answer: the Acts

must be within power, and yet the Court possibly

should be mindful of the need not to encourage

inappropriate resource to the Court by skating over

the obvious and clear answer which comes from

analysis by reference to justiciability, if one

likes, the fact that there is no matter here, in

our submission.

But having gone back to that, in logical order

we would submit that there remains also the

compelling case, passed over very quickly by my

learned friend, whereby he submits that there is

standing. We say that it must be the case here

that there is no standing and that the strength of
that submission is supported by the analysis of

what it is the plaintiffs claim, having alleged in

various ways successive interest for the point of

view of approaching the Court as a litigant.

What might have been sufficient for a truly

constitutional matter where the courts could admit

a possibility of answer and where the plaintiffs

could show some peculiar interest such as was shown

by the plaintiffs in Onus and was sought to be

shown, but unsuccessfully, in ACF, in our
submission just does not arise here.	The

plaintiffs, we say, do not get to first base, but as this is a matter necessarily before the Court, if the Court pleases, Mr Burmester will detain the

Court but a short while to make submissions as to

standing.

Our submission is, however, that it remains, as a whole, appropriate for the Court to in effect

dismiss the action by answering all questions

adversely to the plaintiff.

DAWSON J:	I am not sure that I follow that line of reasoning, Mr Solicitor. You say that because the
interest which the plaintiffs claim to have cannot
exist because what they claim cannot succeed,

Horta 135 10/8/94

therefore they could not have standing anyway.	I
do not understand.

MR GRIFFITH:  Your Honour, what I was attempting to do in

asentence was to say that Mr Burmester will analyse

it step by step, Your Honour, but our basic - - -

DAWSON J: What are you asking us to do?

MR GRIFFITH: Standing on its own, Your Honour, is a

difficult issue in this case, because until one

looks, in our submission, to what it is the

plaintiffs are claiming, it is not possible fully

to deal with their claim that they have the
requisite standing; it is standing by reference to

their claim. That is what the case is,

Your Honour.

DAWSON J: Are you asking us to say because the claim which

they have put forward cannot be sustained,

therefore they do not have standing?

MR GRIFFITH:  Your Honour, what we say is that it is

appropriate in this case to look at the case,

Your Honour. When one sees the case that is put,

Your Honour, it is our submission that when one

goes then to consider the standing issue as if it

was standing alone as a preliminary point,

Your Honour, it is possible to take a confident view, by reference to the appropriate principle that the Court should not admit standing. That is

a matter of - - -

DAWSON J:  So that is what you are ultimately asking us to

do?

MR GRIFFITH: Yes.

DAWSON J: Decide the case on the basis that the plaintiffs

do not have standing.

MR GRIFFITH: If the Court regards it as appropriate,

Your Honour.

DAWSON J:	Do you? Are you asking us to do that?
MR GRIFFITH:	Your Honour, we regard it as appropriate that

this case be not left swinging in the wind, but

dismissed. we have made it clear, Your Honour,

that on each point of the plaintiff's claim we

deny - - -

DAWSON J: But you cannot do it on both. If they do not

have standing you do not get to the other question.

MR GRIFFITH: Your Honour, we are happy for it to be

dismissed on standing.

Horta 136 10/8/94

DEANE J:	Or justiciability.
MR GRIFFITHT:	Of course, Your Honour, yes.

DEANE J: But I am a little bit lost. If you lose on

question S(a) and (b), do you really say that the

question whether the Treaty was void or there was a

breach of international law is non-justiciable?

Because if you lose, the result of the answer is

that the law is invalid unless the Treaty was not

void.

MR GRIFFITH:  Your Honour, our logical order is to say that

we cannot ever lose on question 5 because if the

Court applies proper principle, we never get there.

DEANE J: Because of locus?

MR GRIFFITH:	And justiciability.
DEANE J:	But if you are never going to get to question 5,

your argument on justiciability must be on the

assumption that the answer to question 5 is against

you.

MR GRIFFITH:  No, not necessarily logically, Your Honour,

because our submission is that we must win on

question 5 because the Court cannot answer it.

DEANE J: But if the answer to question 5 is that the

Commonwealth possesses no legislative power unless

there be a valid treaty and unless the treaty be

consistent with its international obligations, the

only basis on which one can deal with

justiciability before question 5 is assuming that

answer against you if that is the legal answer

under the Australian Constitution.

MR GRIFFITH: Perhaps you have made another circle, as

referred to yesterday, Your Honour, because -

DEANE J: But I thought that you agreed that the sensible

approach to this case was to go straight to

questions.

MR GRIFFITH: Your Honour, we do for a clear knock-out

point, but it is at the end of the day for the

Court to decide the extent to which it answers

these issues. We went for that point, Your Honour,

because we say it is a clear short, sharp one.

That means there can be no future in this case.

DEANE J:  I could understand your saying if question 5 were

answered against you on a preliminary examination

the Court should not deliver that answer unless it

was satisfied that there was locus and that the

issues involved were justiciable.

Horta 137 10/8/94

MR GRIFFITH:  In essence we do say that, Your Honour.

DEANE J: But I really cannot quite see how you can ask us

to deal with justiciability except on the basis of

the assumption that the answer to question 5 is

against you.	It seems to me your argument on
one.	justiciability then becomes a somewhat difficult

MR GRIFFITH: Your Honour, we would not want to leave it on

that basis, but we do say that question 5 in

essence, when one follows through in logical

order - perhaps put standing on one side - is a
question which on the grounds alleged for

invalidity is one which this Court could never

answer. We would say further, Your Honour, the

Court could never answer it adverse to validity.

DEANE J: But that is not right, is it? To take a

particular aspect, I can fully understand you

saying except in the case of a sharp sham, the

Court will not go beyond the executive's

recognition.

MR GRIFFITH:  We say that, Your Honour.

DEANE J: But that does not preclude the Court answering the

questions which the Chief Justice has referred for
the consideration of the Court or render the

questions non-justiciable.

MR GRIFFITH:  Your Honour, the questions are asked in the context of the annnexed statement of claim.

DEANE J: Yes.

MR GRIFFITH:	And we know exactly what that statement of claim involves and that is the Court is the next
step, if the plaintiffs survive the answer to these
questions, deciding the sovereignty issues.
DEANE J:	No, but the position then would be, on the

assumption as to question 5, that the question was
justiciable, but in answering it the Court would
not go beyond the executive's recognition of

Indonesia as the sovereign of East Timor if your

argument as to recognition be correct.

MR GRIFFITH:	If the Court construed the question in that light, Your Honour, but the question is put as part
of a series saying, in effect, so far as the
Commonwealth is concerned as a participant in the
case stated, that this whole action must fail:
firstly, because of issues of standing; secondly, because of issues of justiciability; and, thirdly, because this claim could never be answered, or
could never be answered adversely to the

Horta 138 10/8/94

certificate which, in effect, is constituted by the

agreed fact 4. In our submission, Your Honour, to

isolate out that question on the assumption to say

that is, in effect, a pure question, Your Honour,

is to separate the questions from the attached

statement of claim and the issues which are put

before the Court.	I do not know whether that makes
it clear enough.

DEANE J:  I think, we both understand submissions and

problems but, again, when you come to standing, I

really have great trouble in seeing how, in dealing

with the standing of East Timorese permanent

residents representing East Timorese associations

in this country, to seek this declaratory relief.

One should not, if one is dealing with that as a

preliminary question, approach it on the assumption

that all the other questions are answered against

you.

MR GRIFFITH: Well, Your Honour, one must look at the

questions that are asked though, what is the claim?

DEANE J: Yes, of course, and the relief that is sought.

MR GRIFFITH: Yes, and Your Honour, we will make, very

shortly, obvious points that you do not elevate

your claims as an individual by being in an

association, and these short points about standing.

DEANE J:  But, you do not deny standing on the basis of

disentitlement to the relief if you are only

assuming disentitlement. You decide standing on

the basis that all the other arguments are

established.

MR GRIFFITH:  Your Honour, if one takes that too far there

can be an air of unreality because then you can

have a claim which is one totally non-justiciable,

there is clearly no matter, and yet you could have

an initial inquiry of standing as happened in the
ACF case.	We would submit, Your Honour, that the

Court's practice is to show a relationship. In

Robinson it was convenient to more or less let

standing go and look at the merits without

regarding that as a preliminary point to disentitle

the Court for looking at the merits. In Onus,

Your Honour, because there was an allegation of

custodianship of the relics of a narrow group, the appreciation for standing.

Now, the Commonwealth's view, Your Honour, and

that is why it did not take, as it were, a separate

summons on the standing issue and bring that up, as

firstly, it wished to dispose of this case

completely and in one proceeding, and secondly,

Horta 139 10/8/94

Your Honour, because it is appreciated that there is room for some subjectivity in the Court's

approach to standing as to what can be regarded as

sufficient and one often one can see the ways in
the plaintiffs have pleaded and their amended

pleadings taking it a bit further to make an

original claim on behalf of all the Timorese

people. Now, we would submit, Your Honour, that is

a weaker claim than a claim on behalf of all

Australian people.

DEANE J:  I do not want to delay you. All I wanted to

indicate to you, Mr Solicitor, was if I were going

to decide this case on standing, it would be on the

basis that I assumed against the Commonwealth in

relation to every one of the substantive issues

involved in the case.

DAWSON J:  Mr Solicitor, really are you not saying, look if

you see fit, and they put aside the issue of

standing and treat the question really as one of

demurrer and that will take you, as a short cut,

straight to question 5 and, on that basis, decide

whether there is any claim at all?

MR GRIFFITH: Yes, Your Honour, we do say that but, of

course, we do not wish to just let standing go as

an issue in constitutional cases, we must flag it

as, in our submission, here it is not the requisite

standing, but it is for the Court - - -

DAWSON J:  We am not abandoning it, but if we see fit to do

so -

MR GRIFFITH:  Yes. Our submission, in essence, is this

action should be dismissed, in effect, by the

Court's order, and we must leave it to the Court as

to the extent to which it exhaustively discusses

each of three substantive matters: standing; the

justiciability matter issue and external affairs

power. But we have not at all disguised the fact	that, just as in Polyukhovich, we feel there is a
short answer to the whole claim, and we put that
first. So I am indebted to Your Honour.
Mr Burmester will shortly address the Court on the
standing issues.

MASON CJ:  We do have the advantage of your written

submissions on standing.

MR GRIFFITH:  That is why he was intending to be short,

Your Honour, but one problem about standing is,

Your Honour, there is almost no elucidation from my

learned friend, and it does still remain of concern

to the Commonwealth, Your Honoqr, that argument as
to standing should be put, but if the Court now

took the view, Your Honour, that it would dispose

Horta 140

of the matter without deciding standing, of course

we would not press our submissions on the Court, so

we are really subject to the Court's direction. We

are conscious of necessity to be short, but we did

desire, to make as one of the three legs, in

effect, to strike out the point where we say there

is no standing, but if Your Honour would prefer to

leave us just to rest on our written submissions,

we are content to do that.

MASON CJ: Yes.

DAWSON J:  Mr Solicitor, it may have escaped me: did you

deal with the contentions of the other side on the

Vienna Convention?

MR GRIFFITH:  Yes I did, Your Honour.

DAWSON J: A particular clause of the Vienna Convention?

MR GRIFFITH: Clause 53, yes, I did, Your Honour. Shall I

do it again? I hope it is not just deja vu and I

was dreaming it last night, Your Honour.

DEANE J:	No, I heard you.
MR GRIFFITH:	Your Honour, what we said was, Articles 31 and

32 are provisions which provide for the

construction of treaties, and it is permissible for

a court to have regard to them. The

Vienna Convention is not self-executing, but if the court is engaged in in construing a - - -

TOOHEY J: This will be in the transcript, Mr Solicitor.

DAWSON J: Yes, and what I had in mind was the particular

clause of the convention.

MR GRIFFITH:  53, Your Honour; it is not self-executing. I

would seat it like Articles 48 and 49 dealing with

error and fraud.

questions of void treaties is not a matter for a The one that was dealing with

domestic court.

DAWSON J: I appreciate that. What I was looking for is

what the clause meant and I do not understand it

as -

MR GRIFFITH: Your Honour, jus cogens. The Court need not

be concerned about that because that is the

International Court of Justice.

DAWSON J: Very well, I was just curious, that was all. The

other thing was the taxation matters. You did not

seek - you have your written s~bmissions on the

taxation matters.

Horta 141 10/8/94

MR GRIFFITH:  We will stand on those but, Your Honour, I am

not quite sure whether we should stand on our

written submissions on standing or bother the Court

with Mr Burmester.

MASON CJ:	It is for you to make a decision about that.
MR GRIFFITH:	Your Honour, I think we will take the risk and

stand on them, if the Court pleases.

MASON CJ: Very well. Yes, Mr Fajgenbaum.

MR FAJGENBAUM:  If the Court pleases, a small number of

short points by way of reply. Much of that which

my learned friend submitted to the Court about

embarrassment in the conduct of Australia's

international affairs is not really relevant when

what we are considering is a constitutional fact.

Questions of difficulty of determination and questions of embarrassment are no reason for the Court surrendering to the executive the determination of any particular constitutional

fact. It has not done it, for example, in defence

cases, nor has it surrendered the determination of

constitutional facts in defence cases to the

Parliament. Might I remind the Court of what

Sir Owen Dixon said in Andrews v Howell,

(1941) 65 CLR 255, at page 278:

In dealing with that constitutional

power -

the defence power, that is -

it must be remembered that, though its meaning

does not change, yet unlike some other powers

its application depends upon facts, and as

those facts change so may its actual operation

as a power enabling the legislature to make a

particular law.	In the same way the operation
of wide general powers conferred upon the
Executive by the Parliament in the exercise of
the power conferred by sec 51(vi) is affected
by.changing facts. The existence and
character of hostilities, or a threat of
hostilities, against the Commonwealth are
facts which will determine the extent of the
operation of the power. Whether it will
suffice to authorize a given measure will
depend upon the nature and dimensions of the
conflict that calls it forth, upon the actual
and apprehended dangers, exigencies and course
of the war, and upon the matters that are
incident thereto.

Horta 142 10/8/94

In our respectful submission, determining the questions of international law for the

purpose - - -

McHUGH J: Just taking the question of hostilities, from the

earliest times the Court has always acted on a

certificate of the executive as to whether or not
there is a state of war with a particular country.

Why is that not the situation under the defence

power?

MR FAJGENBAUM:  I am not sure, with respect, that that

matter has arisen and been determined in Australia.

I suspect not, and it would be inconsistent with all learning hitherto about the expanding and

contracting nature of the defence power to say that

its scope can depend upon an executive

determination of the existence of hostilities

between us and another country.

McHUGH J:  I was trying to recollect what happened in the

Marcus Clarke case, the Capital Issues case and

those cases.

BRENNAN J: The defence power has expanded or contracted not

according to the Court's view of some facts with
which the executive is unconcerned, but by
reference to the executive's conduct of Australia's

foreign affairs.

MR FAJGENBAUM: With respect, to some extent that may be so,

to the extent of the conduct of foreign affairs.

It is not simply a declaration of executive policy

but soldiers, for example, go into battle in
particular places or conscription does occur or

there are shortages in the capital markets that

were affected by, I think, the Korean war in the

Marcus Clarke case. That may be so, but the

conduct of foreign affairs vis-a-vis the Soviet

Union and the perceived threat from the Soviet

Union and other communist countries did not in 1951

permit this Court to support the validity of the

Communist Party Dissolution Act.

McHUGH J: But supposing that, whatever be the facts, the

executive had declared a state of war or

hostilities did exist between Australia and the

Soviet Union, would the Communist Party case have

been decided differently at that stage?

MR FAJGENBAUM: Simply on the declaration of war, no. If in

fact Australia had not gone into battle, if in fact

the conduct of - if there in fact was no war

between us and Australia and simply there was a

declaration and perhaps a withdrawal of diplomatic

representation between the two countries, that

would not create that kind of state of affairs

Horta 143 10/8/94

within Australia that might, for example, justify

controlling capital markets, justify the
dissolution of the Communist Party because it was
perceived by the executive to be a fifth column in

respect of a war which was not being conducted.

McHUGH J: But I am assuming there is a genuine belief by

the executive that a state of hostilities does

exist between Australia and some other country.

MR FAJGENBAUM:  The genuine belief of the Parliament in the

Communist Party case as set out in the recitals to the statute.

McHUGH J: That is a different point, I think,

Mr Fajgenbaum. Anyway, do not let me detain you

any longer.

MR FAJGENBAUM:  We also contend that which my learned friend

said about our propositions, crippling Australia in

the development of international law, are likewise

untrue. When we say that the external affairs

power has to conform with international law, it is

that international law which contains its own

institutions of development. To the extent that

State practice in particular instances results in a

development of international law, that kind of

State practice of itself cannot logically be

regarded in international law as illegal. It is, as a matter of logic, legal conduct, not unlawful conduct which produces developments in the law,

absent revolution.

If I can come back to an example I thought of

in response to what Justice McHugh said to me

earlier: if the executive had declared a state of

war for the purpose of being able to proclaim

martial law, if a statute did enable the

proclamation of martial law upon a declaration of

war, it would in our respectful submission be

declaration of war was made for proper purposes and	that declaration of war, or whether that appropriate for a court to examine the bonafides of	having regard to relevant considerations or
whatever, simply for the purpose of ensuring that
the power to declare martial law upon a declaration
of war was not being abused.

It is not and has never been part of our case

that the exercise of any other legislative power in

section 51 is confined by international law in the

way that we contend the external affairs power is,

and that international law in no other context does

not provide a constitutional yardstick.

In our respectful submission, the propositions

that we are putting are not foreclosed by Fishwick

Horta 144 10/8/94

v Cleland to the extent that the Court in that

case, having found that there was no inconsistency

between Australia's conduct and the mandate which

justified that conduct, which authorized Australia

to conduct itself in New Guinea, having found no

inconsistency, nevertheless the Court did not deal
with the question of the need for legislation on

the external affairs power to conform with

international law because of sufficient

justification for Australia's conduct in New Guinea

under the territories power which obviously, as we

have been putting it, is not so confined.

It is true, in a sense, that in Polyukhovich

mere externality of course was sufficient to

justify the war crimes legislation there in

question without considering whether on that ground

alone it had to conform with international law;

that is true. But, in our respectful submission,

the proposition that we are now advancing to the

Court was not put as such in Polyukhovich and was

not considered as such. For that reason,

Polyukhovich is not a case that needs reopening in

any way for the purpose of the resolution of the

questions that we have raised for the Court in our

case.

There is some anxiety in our camp, if the

Court pleases, to draw the Court's attention to the

controversy that developed at the Bar table here as

to the facts of international recognition of

Indonesian sovereignty over East Timar. It is

sufficient for us to remind the Court that the only

agreed fact in the case is that Australia has

recognized Indonesian sovereignty and that Portugal
has not, and that otherwise it is a matter in

controversy, and unless there are further matters

the Court wants assistance, they are the

submissions in reply.

MASON CJ:  Thank you, Mr Fajgenbaum. The Court will

consider its decision in this matter and adjourn

until 10.15 am tomorrow.

AR 12.11 PM THE MATTER WAS ADJOURNED SINE DIE

Horta 145 10/8/94