Lindon v Commonwealth of Australia

[1996] HCATrans 63

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M82 of 1995

B e t w e e n -

LEN LINDON

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application to set aside writ and statement of claim

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 11 MARCH 1996, AT 9.32 AM

Copyright in the High Court of Australia

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:  If Your Honour pleases, I appear with my learned friend, MS M.A. PERRY, for the applicant.  (instructed by the Australian Government Solicitor)

MR L. LINDON:  And I appear, sir.

HIS HONOUR:   Yes, Mr Lindon, thank you.  I do not have any written submissions from you, Mr Lindon; is that correct?

MR LINDON:   Yes, your Honour.

HIS HONOUR:   It does help in our busy lives if you can put in some written submissions because I come here now, having the words of the Solicitor‑General very much in my mind, but I do not have anything from you.  We will have to spend out time here listening to what you have to say, instead of reading it.

MR LINDON:   I sought to avoid that on Thursday by asking the other side whether an adjournment was a good idea, particularly given the change of government, but also given the problems of preparation, and I was instructed there would be no adjournment, so I thought better to make it an application before you.  I was not sure, in any event, how much time your Honour had allocated to this matter this morning.

HIS HONOUR:   I think we should try to deal with it in the space of an hour.

MR LINDON:   Yes.  Without wanting to try the Court’s patience unduly, it may be that‑ ‑ ‑

HIS HONOUR:   I have infinite patience.

MR LINDON:   Absolutely; no doubt.  There may be that, as you have already commented, it would be more useful to the Court if my submissions could be put in the affidavit form and the material that I rely on exhibited to it.  I guess we will bat on and see how we go.

HIS HONOUR:   I think that is a good idea.  Let us bat on.

MR LINDON:   Thank you.

MR GRIFFITH:   Your Honour, just picking up the point that the plaintiff just made.  Your Honour, as it came to me, the application was for an adjournment because of the change of government.

HIS HONOUR:   I do not see what that has to do with it.

MR GRIFFITH:   Either did we, your Honour, so that is why we did not agree with it.  It was not because of any issue of not having an opportunity.

HIS HONOUR:   We will deal with this matter as the law requires.  I do not think the change of government has anything to do with it, but I have not heard what Mr Lindon has to say about that, so he may wish to develop that theme but at the moment I think it is best if courts just get on with their work.

MR GRIFFITH:   Your Honour, we thought it was appropriate, though, to expose to the plaintiff really, entirely, the basis of our application, and that was done in those rather full written submissions that your Honour referred to.  We are proposing, your Honour, that Ms Perry just address you shortly as to those submissions.

HIS HONOUR:   Yes.  Let us get the record in order.  I think, first of all, you move on an affidavit; is that correct?  Would you indicate the affidavit that you wish to read, or affidavits?  Then I think there has been a notice under the Judiciary Act which I have to explore.

MR GRIFFITH:   Your Honour, there is a summons which - of 1 March, and the affidavit of Robert Hallowell briefly in support of the same date.  I do not know whether your Honour wishes me to read the affidavit, but‑ ‑ ‑

HIS HONOUR:   No, you do not need to read it.  Have you seen that affidavit, Mr Lindon?

MR LINDON:   Yes.

HIS HONOUR:   You have no objections to its being read now?  Very well, I read the affidavit of Robert Hallowell, sworn 1 March 1996.  I think there is another affidavit of 7 March 1996, which relates to the notice under section 78B of the Judiciary Act.  I read that affidavit too.  You have no objections to that, then, I take it?

MR LINDON:   No, sir, subject to this point about instructions.  I may wish to cross‑examine Mr Hallowell on his affidavit in terms of his instructions.

MR GRIFFITH:   It will be a bit difficult, your Honour, because he is not here.

MR LINDON:   Yes, I understand that, sir, but pro tem, please do read it.

HIS HONOUR:   Yes.  Well, I have read it.  Now, has there been any response by any of the law officers to the notice under the Judiciary Act?

MR GRIFFITH:   Your Honour, New South Wales and Victoria have indicated they do not intend to intervene, and there is no other responses.  We would not except it.  There is certainly no indication that there is insufficient time.

HIS HONOUR:   Yes, the notice was given within time, was it?

MR GRIFFITH:   Well, your Honour, there is no fixed time but it was given on Thursday, but ‑ ‑ ‑

HIS HONOUR:   But, would there be sufficient time, in your experience, for the law officers to respond either negatively or positively if they wish to intervene.

MR GRIFFITH:   Your Honour, in this sort of matter it would be sufficient time because it is one that does not raise a matter of great importance.

HIS HONOUR:   Yes, very well.  Well, I will take it for the moment that appropriate notice has been given under the section.

MR GRIFFITH:   Yes, it really was protective notice, your Honour.  It is sort of barely a constitutional matter but we thought we should, as a matter of caution.

HIS HONOUR:   Well, the question of what is a matter may one day have to be reconsidered ‑ ‑ ‑

HIS HONOUR:   Indeed, your Honour.

HIS HONOUR:    ‑ ‑ ‑ but this would not be, I think, the vehicle for that reconsideration, or it may not be.

MR GRIFFITH:   We will see how it goes, your Honour.

HIS HONOUR:   Very well, well now, is that the only material by way of evidence that you wish to put before me.

MR GRIFFITH:   Yes, your Honour.  The plaintiff made two references to the question of cross‑examining Mr Hallowell or inquiring as to authority to proceed, your Honour.

HIS HONOUR:   Yes, is Mr Hallowell here today?

MR GRIFFITH:   He is not, your Honour, but all I can is I have instructions to appear to pursue this application.

HIS HONOUR:   I did not quite hear that.  I am getting a little deaf.

MR GRIFFITH:   I am sorry.

HIS HONOUR:   The problem is old age creeps on us all and the microphone system in this Court does not seem to be living up to its reputation.  I cannot hear.

MR GRIFFITH:   Your Honour, all we say as to that is that I have instructions to appear to pursue this application.  In my submission, that is that on the issue.

HIS HONOUR:   Yes.  Well, I do not really see, Mr Lindon, what cross‑examination of Mr Hallowell, what issue it would go to.  What can Mr Hallowell - he is simply a solicitor who is putting on the formal affidavit ‑ what matter in his affidavit would you wish to cross‑examine him on.

MR LINDON:   Well, the Commonwealth of Australia, of course, is an invisible entity.  I mean, it is a legal entity, it does not exist as a person.  Part of my case would be that there is, at the very least, inconsistent actions and statements being made by different sections of the Commonwealth but also, further than that, that the Commonwealth itself, in my submission, has not and probably cannot give the instructions to proceed in this way.  Now, I have sought on previous occasions for Mr Hallowell to simply demonstrate to me the legal chain that brings the Commonwealth of Australia, created by the Constitution 1901, to Court as a defendant and to empower him to act on its behalf in this way.  There is certain correspondence that has gone to the previous Prime Minister, the previous Minister for Foreign Affairs, the previous Attorney‑General and Minister for Justice ‑ ‑ ‑

HIS HONOUR:   But I do not have any of that.  All I have before me, in effect, is a motion to strike out, as unacceptable on its face, the pleading which you have sought to file in the Court.

MR LINDON:   Part of my case will be, sir, that the Commonwealth has not demonstrated that it has, in effect, instructed either the counsel that appear here today to make this application.

HIS HONOUR:   Well, you are, in effect, challenging the retainer of the Solicitor‑General, are you, by saying that he has no instructions to appear here.

MR LINDON:   Or am saying, if you do, perhaps for us less au fait with ‑ ‑ ‑

HIS HONOUR:   I do not think you should pursue that matter.  He asserts that he has instructions to appear for the Commonwealth and unless you have some proper basis to show doubt upon what he has asserted, I would be willing to accept his assertion.  I think we should get to the substance of the matter rather than tarrying over these preliminary points.

MR LINDON:   Well, with respect, sir, I would like to get to the substance of the matter too, which is the substantive merits of my writ.  But this is a technical, or a formal application that has been made and I merely say, in response to that, one of my points is that the Commonwealth of Australia, whoever or however it may be constituted to give these instructions, has not demonstrably given those instructions. 

I point to several statements and actions of the Commonwealth of Australia which are completely inconsistent with such a course and, in fact, part of my case is that under section 36 of the Evidence Act, I propose to call the Solicitor‑General to give brief evidence and, if necessary, treat him as an unfavourable witness within the meaning of the Act in relation to statements he made in the International Court of Justice on October 30th last year.  I have a copy of the verbatim record of that statement and believe it is completely inconsistent and either the Commonwealth is estopped or cannot be heard or, in any event, ought to demonstrate very clearly that it has given these instructions.

Now, the Commonwealth, sir, consists of either the executive or the legislature and I do not want to - perhaps it is not the appropriate time and perhaps I ought let the matter proceed as you directed, but given the statements made by Australia by the Attorney‑General - sorry, by the Minister for Foreign Affairs and previous Attorney‑General, and by the Solicitor‑General in the International Court of Justice on 30th October last year, I do have grounds for doubting whether, in fact, the Commonwealth has instructed the Solicitor‑General in this way.

HIS HONOUR:   But the Solicitor‑General asserts that he appears - he asserts that he has instructions, and unless you have some basis that casts any doubt on that, I must accept his assertion.

MR LINDON:   But, sir, this is a Commonwealth Court and the Solicitor‑General is appearing - - -

HIS HONOUR: No, this is a Court established by the Constitution. It is in no way partisan; it is neutral as between you and the Commonwealth. It deals many times with applications by the Commonwealth and dismisses them. So that, it is empowered to determine an application such as is now before it, but the fact that certain statements were made by previous ministers, the fact that the Solicitor‑General said certain things in the International Court of Justice, does not seem to me to go to the point which is before the Court now which relates to the acceptability or not of the process which you are seeking to proceed upon in the Court.

I think that we really have to get to the heart of the Commonwealth’s objection and then hear you in resistance to it, and if you do not feel that you could put your case fairly today, well, I will then consider any application for an adjournment.

MR LINDON:   Well, the point has been made anyhow, sir.  I do not consider that Commonwealth - I mean, in my submission, the Commonwealth does not have instructions to make an application to strike out - - -

HIS HONOUR:   Well, you submit that; but the Solicitor‑General asserts that he does have those instructions.

MR LINDON:   And then we move to the next question, do I have material on which I can make that assertion, and I say yes.  I point firstly to the International Court of Justice and I point secondly to a resolution - - -

HIS HONOUR:   But how can that show any change in the position of the Commonwealth  The Solicitor‑General asserts today that he has instructions to proceed on these applications.

MR LINDON:   Yes, well, I believe one can rely on evidence that is circumstantial, not necessarily direct, in order to prove a point, and I am doing so now.  I rely on the Solicitor‑General’s statement to the International Court of Justice that nuclear weapons are, per se, illegal which he made on 30 October, and I rely also on the 40‑page statement by Australia as to the current state of customary international law which was made then.  I also rely on the resolution that was put up by Australia at the United Nations General Assembly on 31 October ‑ ‑ ‑

HIS HONOUR:   But all of these are matters put in the forum of the international community.  One of the points that is made against you is that what you are seeking to agitate in this Court is a matter of international law which is not incorporated into the domestic law of this country and, therefore, though properly made in the international court, these statements are of no relevance to proceedings in this Court.

MR LINDON:   Yes, but that, with respect, cannot be correct in all circumstances, sir, because you have the Alice in Wonderland situation of Australia going to a forum outside Australia and saying, “Nuclear weapons are illegal for these reasons”, and then coming into Australia and saying ‑ it seems to me, and this is a current debate in the development of the law at the moment, sir, as to the extent to which and how ‑ ‑ ‑

HIS HONOUR:   I think you will understand that an assertion that an international court should declare within its jurisdiction that something is illegal by international law does not necessarily mean that a domestic court can have its jurisdictional vote to make a similar declaration in this country.

MR LINDON:   Absolutely.  That is not quite my point.  My point is that if Australia states its position as to what it says customary international law is, whether it is in a forum outside the country or here, but certainly in a formal setting like a court of law, then that must be taken account of.  So that it is not a case of me saying that International Court of Justice has said, “This is what customary international law is.”.  I am saying Australia has stated its position on what customary international law is to the International Court of Justice.  As at 30 October, therefore, there has been a change in the Australian customary international law, which is imported into this country.

I have referred to the resolution of the United Nations General Assembly calling for the complete disarmament of nuclear weapons put up by Australia, and once again your Honour will say, “Well, that’s external”, and I come back and say, “Well, it’s partly external, partly internal”.  I also refer to the resolution put up to the Commonwealth Heads of Government by Australia in November of last year; and finally I refer to the proposed mandate of the Canberra Commission on the Elimination of Nuclear Weapons, which was set out by the Prime Minister on 27 November last year, and I also refer to the current inquiry of the Commonwealth of Australia into the complete test ban treaty which is being held by the Senate of the Parliament.  On that material, my submission would be that the Commonwealth ‑ and it is common knowledge, of course, the Commonwealth consists of many different departments and many different aspects ‑ the Commonwealth is not just a solicitor acting in the Attorney‑General’s Department; the Commonwealth, in fact, has an executive head and legislative head.

Where Australia, acting externally, has spoken, one would assume that it speaks on behalf of both the executive and the legislature, and certainly, if one looks internally, you can see that the executive through the Canberra Commission has spoken and also that the Parliament has spoken through its inquiry into the complete test ban treaty, and the debate that is going on there.  I say that is sufficient material for the Court to have grave doubts as to whether the Commonwealth, whoever that may be and however it may formally instruct counsel to make its application, cannot be seen to have done so unless there is a ‑ it is almost like a “show cause” situation.

Normally one accepts the instructions of the Commonwealth.  One accepts they appear under instructions.  If a doubt is raised, why does the Commonwealth then not produce, as it were, its chain of delegation as to how in fact a solicitor in the Government Solicitor’s office can claim to be instructing the most senior counsel in the country to make this application.  I say that the Commonwealth has not, and has continued to fail to demonstrate that link to me which, as a citizen, I would say I am entitled to and, given that the Commonwealth and the citizen are equal parties before this Court under ‑ ‑ ‑

HIS HONOUR:   None of the matters that you have raised cast any doubt in my mind on the statement by the Solicitor-General that he appears for the Commonwealth.  However, I think it is appropriate that you should identify the documents that you have referred to so that they can be marked for identification and ‑ ‑ ‑

MR LINDON:   Certainly, your Honour.

HIS HONOUR: ‑ ‑ ‑ that way, what you are relying upon can be on the record.

MR LINDON:   Also having heard your Honour’s indication of having listened to me patiently for 10 minutes I do not want to - I will very quickly do that, sir.  The documents I have referred to is first of all the verbatim record of the proceedings before the International Court of Justice on 30 October 1995.

HIS HONOUR:   That is MFI 1.

MFI:             MFI 1.....Verbatim record before International Court of   Justice.

MR LINDON:   Yes, together with a letter dated 4 December from the Deputy Registrar enclosing a copy of that verbatim records.

HIS HONOUR:   I do not think we need that unless you ‑ ‑ ‑

MR LINDON:   Well it is just if its authenticity was being challenged.

MR GRIFFITH:   That is admitted, your Honour.

MR LINDON:   The next document I refer to, sir, is the resolution of the United Nations General Assembly, the first version of 31 October 1995 and the second version ‑ ‑ ‑

HIS HONOUR:   Is that the resolution that referred the question to the International Court for an advisory opinion?

MR LINDON:   No, your Honour; this is simply a resolution by Australia on nuclear testing.

HIS HONOUR:   MFI 2.

MFI:             MFI 2.....First version of resolution of United Nations General   Assembly

MR LINDON:   Yes.  I have not referred to, but I have probably, for the sake of completeness, will now, sir, to the extension on the Treaty of Non‑proliferation of Nuclear Conference, conducted in May 1995 and the various resolutions coming out of there.

HIS HONOUR:   MFI 3.

MFI:             MFI 3.....Extensions on Tready conducted in May 1995

MR LINDON:   I refer to the resolutions passed at the Commonwealth Heads of Government meeting as proposed by Australian, the resolutions on 24 November 1995 about the elimination of nuclear weapons.  And finally I refer to the ‑ ‑ ‑

HIS HONOUR:   MFI 4.

MFI:             MFI 4.....Resolutions passed on 24 November about   elimination of muclear weapons.

MR LINDON: ‑ ‑ ‑ Canberra Commission on Elimination of Nuclear Weapons proposed mandate together with a list of members and a statement by the Prime Minister on its initiative for a nuclear weapons free world, dated 27 November last year.

HIS HONOUR:   They will be MFI 5.

MFI:             MFI 5.....Canberra Commission on Elimination of Nuclear   Weapons proposed mandate, list of members and   statement by Prime Minister of 27 November
  1995

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, I am able to indicate that the plaintiff referred to me as the highest law officer; your Honour, I am not, I am the second law officer.  Your Honour, the first law officer, the Attorney, in January, your Honour, determined this matter and gave instructions accordingly.

HIS HONOUR:   I think he was simply trying to compliment you; it is a very high legal office.

MR GRIFFITH:   Yes.  Well I just indicate, your Honour, to allay his anxiety, that it is the Attorney-General who has given instructions to the Australian Government Solicitor to brief me and Ms Perry today, so there is a direct chain there.  Your Honour, I would ask Ms Perry briefly to address your Honour on our written submissions.

HIS HONOUR:   Yes.

MS PERRY:   Your Honour, my learned friend has indicated I will be brief in my oral submissions.

HIS HONOUR:   Can I just interrupt; you have a copy of these, do you, Mr Lindon?

MR LINDON:   Yes.

HIS HONOUR:   Yes, very well.  Yes, Ms Perry.

MS PERRY:   The grounds on which we seek an order that the writ and statement of claim be struck out, and that the action be dismissed, are set out in our summons and in the Commonwealth written submissions and we are relying in particular on Order 26 rule 18 and on the Court’s ‑ ‑ ‑

KIRBY J:   I had better have a look at this.  The orders here are a little different to those that I have been familiar with.  Yes?

MS PERRY:   Your Honour, just briefly, I will not take your Honour to the declarations sought unless your Honour would wish me to do so, but it is quite clear that they are not asserting the invalidity of any legislation, nor are they seeking to impugn any conduct of the Commonwealth or any of its officers.  The third and fourth declarations which seek declarations as to the use of nuclear weapons in wars and other armed conflict relate only to future hypothetical situations and in effect the advisory opinion of this Court, on purely abstract questions of law, is sought.

The abstract or hypothetical nature of the declarations which are sought reveal the fundamental ‑ ‑ ‑

KIRBY J:   Can I just ask you to pause for a moment.  The basis of this stream of jurisprudence is in Re Judiciary and Navigation Act.  That was in 1921, I think, very early in the century.  Since that time, I think it is probably fair to say that the concept of declaratory relief has enlarged quite significantly, particularly over the last 20 years, and it is now not uncommon to get declarations of right relating to future conduct of parties.

Now, the question that leads me to pause about the jurisdictional issue is that that is quite a large question as to whether, in the light of the development of the declaratory relief, which has been one of the really significant procedural developments in the law in the last 20 years, there may not at some appropriate time, and in an appropriate case, be an occasion to reconsider the issue of what is a matter for the purpose of sections 75 and 76 of the Constitution. That is why when I saw the written submissions, I must say to you, subject to hearing what you have said and Mr Lindon said, it would seem to me that a more appropriate way to start was to go to some of the later submissions, leaving that issue for a future time, because if you can succeed on one of the other grounds then it is not necessary to embark upon what I think is a very important and large question.

Of course at the moment, sitting alone, I am bound by what the Court has said, but I just have a certain concern not to say or do anything that is foreclosing of a reconsideration by the Court of the continuing authority in Re Judiciary and Navigation Act, in the light of the development of the declaratory relief.

MS PERRY:   Your Honour, I think that it is probably true to say that there has been some loosening up of the rules, particularly with respect to standing in actions brought by the Attorney-General and it would seem to me that the flexibility that the law has been developing has tended along the lines, or in the area of standing, that that may have an impact at some point in time in what is a matter.

HIS HONOUR: It is possible that the answer to my concern is that, whatever my views on this are, that that is a matter for a Full Court and that, sitting alone, I simply have to apply what is said in the cases that are referred to in the footnotes, numbers 2 and 3, of your written submissions. But I just have an anxiety about embarking upon that question if I do not have to because if you stand back from the Constitution and ask what is a matter, then it is at least arguable a matter is a serious question upon which a person with standing seeks a judicial determination that may affect rights and duties of parties and that perhaps in this country that word has been given an unduly narrow construction in the past. We have come a long way in the last 20 years with declaratory relief. That is why I just feel a little anxious about embarking upon this matter if I do not have to onto that first ground.

MS PERRY:   Thank, your Honour.  Perhaps, then, I will just mention that, as an alternative, one alternative, the Court, for example, in Luna Park v The Commonwealth in (1923) 32 CLR 596, used as an alternative to the ground of jurisdictional incompetency the ground that the Court will not grant declaratory relief where no right or duty of a person is involved and the issues are hypothetical only. Perhaps, having mentioned that, it would then be appropriate for me to move onto the question of standing.

HIS HONOUR:   That is really your third ground, is it, because that is really under the - third basis of objection to the process.

MS PERRY:   It is, your Honour.

HIS HONOUR:   So, there is no reasonable cause of action.

MS PERRY:   It may well be that the principles in this area are very closely inter-related and that would appear to be the case.  Looking then at the question of standing.

HIS HONOUR:   I am not stopping you from arguing the issue of jurisdiction if you wish to do so.  I mean, it is a fundamental principle that a court should always satisfy itself on its jurisdiction.  It may be an eccentric view of my own, but I think one day, sooner rather than later, the Court is going to have to really reconsider what is a matter.

MS PERRY:   Your Honour, then I think that we would just stand on our written submissions with respect to the question of a matter and then move onto the question of standing.  On that issue, I can also be very brief.  We have isolated the grounds on which it would appear that the plaintiff might seek to assert standing in paragraph 11 of the Commonwealth’s submissions.

HIS HONOUR:   Where do we find the plaintiff’s assertion of his standing?  It is in his original statement of claim, is it?

MS PERRY:   Your Honour, there does not appear to be an express assertion of standing.  These are really bases which we were able to extract on which we felt an assertion of standing might be made, albeit that we say that assertion would be misconceived.

HIS HONOUR:   Do you challenge any of the factual statements, or am I to assume that the facts could be made out?

MS PERRY:   Your Honour, at the moment you can assume for present purposes that we do not challenge those.

HIS HONOUR:   Do you say that, assuming those, they are not enough to cloak the present plaintiff with the standing to bring the claim for the relief that he seeks?

MS PERRY:   Yes, your Honour, we would say they are not sufficient.  In particular, I would draw your Honour’s attention to paragraphs 12 to 14 of our submissions which set out our reasons for that view.  It is our submission that these bases disclose that the interest of the plaintiff is no greater than that of any other member of the public, whereas in order to establish standing it is, of course, necessary for a private individual to show interference with a private right held by him or her, or a special interest in the subject matter of the action.  In particular, I have referred to the authorities in footnote 7, but I would refer your Honour to the decision in Australian Conservation Foundation v the Commonwealth (1980) 146 CLR 493.

HIS HONOUR: Is there anything since then by the Full Court on standing?

MS PERRY:   Not that I am aware of, your Honour.

HIS HONOUR:   I had an impression that there was a later case, but I cannot remember it myself.

MS PERRY:   Your Honour, I can seek out that decision but I am afraid that I do not have it with me today.

HIS HONOUR:    A case of Ingram is mentioned here.  What was that about?

MS PERRY:   Ingram was a decision of Acting Chief Justice Gibb as he then was.  In that action the plaintiff brought an action in the High Court seeking relief by way of a declaration that the defendants by their continuing support for a treaty of 1979 between the USSR and the USA on the Limitation of Strategic Offensive Weapons were acting in breach of principles of international law and the question of standing was one that was raised.  It was also held in that that the action was, in any event, not justiciable.

HIS HONOUR:    What about Mr Ramos Horta’s case?  Was the question of standing raised in that case?  Perhaps you could help on that, Mr Griffith.

MR GRIFFITH:   Your Honour, perhaps I could indicate, because I was there.  Your Honour, there we raised three issues.  (1) on the merit; (2) on justiciability and, (3), on standing and, your Honour, because the Commonwealth as a rule does not like taking standing points, we started at merits first.

HIS HONOUR:    Is this out of some new-found generosity of - - -

MR GRIFFITH:   Well, your Honour, I in fact appeared for the Australian Conservation Foundation v the Commonwealth and I lost on standing, so perhaps that is reflective of the fact that we do not put up cowardly barriers, as it were, your Honour and are prepared to face up to the merits on things.  So, in Horta, we pleaded logically, of course, no standing, no justiciability, no merit but we argued, your Honour, in reverse and we did merit, then justiciability and I said to the Court, “We will no deal briefly with standing” and the Chief Justice said, “Why are you bothering us with this?”  I said, “Because we are so strong.  In the two points we have argued it must be an overwhelming case for standing.”  In the face of discouraging silence, your Honour, I opted not to argue it.

HIS HONOUR:   I see, thank you.  What about Mr Coe’s case.  There have been a couple of cases where one might say that if the argument you are advancing here is correct the similar argument of standing would have been a knock out blow.

MR GRIFFITH:   I would have to check Coe as to whether that was, in effect, the same combined issue, your Honour, but it is true, as your Honour observes, that it is not all that often that a pure standing point is used as a knock out blow ‑ ‑ ‑

HIS HONOUR:   No.

MR GRIFFITH:    ‑ ‑ ‑because of the fact often it is tied up with other issues and particularly at the Full Court level, your Honour, one tends not to get there on a standing point or not to win on a standing point because you have won for other reasons, so that does explain the absence of considered Full Court authority on the  ‑ ‑ ‑

HIS HONOUR:   That is one explanation.  Another explanation is that the notion of standing has expanded a little and that the Court is holding back from defining the perimeters.

MR GRIFFITH:   We would accept that, your Honour, but for one reason,  that is that the Commonwealth does not come and ask the Court to rule very often.

HIS HONOUR:   Yes, but you do ask here.

MR GRIFFITH:   Well, we do, your Honour, although we still use the same logical order, your Honour will see in saying, well, there is nothing here anyway and that confirms standing.

HIS HONOUR:   Very well.  Well, I think I understand the way you put it.

MR GRIFFITH:   Thank you, your Honour.

HIS HONOUR:   Yes, Ms Perry?

MS PERRY:   Your Honour, just before leaving the question of standing,  I would mention that it is clear that litigants cannot give themselves standing by agitating publicly the issues which they wish to litigate and there are some very clear expressions to that effect in the Australian Conservation Foundation decision to which I have referred, particularly at pages 531 per Justice Gibbs, as he then was, and 539 to 541 by Justice Stephen. Any such proposition would plainly be open to abuse, quite aside from other objections which could be made to it as a matter of principle.

HIS HONOUR:   I could understand that notion as being to the point that a person cannot, by bootstraps as it were, send a missive off to the United Nations and say, “That gives me standing in a court in Australia” but, on the other hand, if a person agitates for a time and becomes involved in groups and is concerned in issues and sustains an interest over time, I think that is qualitatively different.  Whether it gives standing is another question, but I think that is a somewhat different issue.

MS PERRY:   I think that that certainly would be contrary; to suggest that that went to afford a litigant standing would be directly contrary with the Australian Conservation Foundation decision and would widen the scope very, very widely, even beyond what would appear to be the case in America.

HIS HONOUR:   Yes, well now you come to the one which it would seem to me to be the strongest argument, at least when I looked at the written submissions.  This is the third ground: no reasonable cause of action.

MS PERRY:   Yes, your Honour.  As I have already mentioned, the nature of the claim is a hypothetical one, really dealing with abstract questions whether they be characterised as questions of law or really political questions, is one that we submit is a fatal defect in the claim.  In particular, it is quite clear that the courts would not grant declaratory relief in a situation dealing with where only such hypothetical and abstract questions are raised.

HIS HONOUR:   Is this the Luna Park Case, is it?

MS PERRY:   Yes, it is, your Honour, and there are other cases, but it does seem to be generally a proposition very well established.  I think I have referred to some of the other decisions in the written submissions.

HIS HONOUR:   Yes.

MS PERRY:   In a similar vein, dealing with the award of a declaration, two of the declarations which are sought seek the opinion of the Court on Australia’s international obligations and the reference in the Declarations to Transnational Law would appear to be incomprehensible unless it is actually intended to be a reference to international law.  This Court has ‑ ‑ ‑

HIS HONOUR:   Can I just mention a matter that concerns me just a little.  When one looks at your submissions, the footnoted cases, the earliest of them on this hypothetical point is 1953 and I just have to approach this, keeping in mind the fact that giving declarations of right as to the future has become much more common in Australia in the last 20 years and I wonder, is there any more recent authority in the Court than the case of the Australian Boot Trade Employees’ Federation about not giving declarations as to future conduct on the ground of their hypothetical character?  There is an article by Mr Crawshaw, who is a Sydney barrister, in the Australian Law Journal about 15 years ago, on the issue of matter and advisory opinions, and his thesis is that the development of the declaratory relief has in a sense overtaken the original constitutional statement against advisory opinions, because the scope of the declaratory relief has enlarged.

MS PERRY:   Yes, your Honour.  I think to some extent that article was envisaging a development; it was picking up on trends.  Even if one could say that to an extent the principles relating to the award of a declaration with respect to future situations, without actually conceding the point, might to some extent have been watered down, when one couples that with what are purely abstract questions without any foundation of fact which has been pleaded, then I think one is going well beyond any development in the law which might have occurred since these earlier decisions, and it really is taking the Court into the realm of the giving of an advisory opinion.

HIS HONOUR:   Just look at the questions the plaintiff wishes to raise, “Does not the use or threat of use of nuclear weapons in any circumstances within Australia contravene Australian domestic law?”, you say that is a completely abstract question; there is no present real threat or danger which is proved or provable, that there is such a circumstance in reality that has to be dealt with by the Court?

MS PERRY:   Yes, your Honour.

HIS HONOUR:   No 2 is, “Is not the nuclear targeting a civilian population both a criminal offence and civil illegality in Australia?”.  You say the same thing.  Question No 3, “Who is legally responsible for enforcing the law to stop such nuclear targeting?”.  You say that it is purely hypothetical; that there is no such nuclear targeting that is proved or could be proved.  No 4, “What legal actions are ordinary citizens obliged or empowered to take a stop, or prevent such targeting?’.  Same thing.

MS PERRY:   Yes, your Honour, although, of course, those questions relate to issues which were said to arise in proceedings which have now been dismissed by the Court, rather than the issues that actually are said to arise in this case.  Those appear to have been identified only in the declarations set out in the writ.

HIS HONOUR:   Yes, they are set out 1 to 4 on page 2 of the statement of claim.

MS PERRY:   Yes, your Honour.  This is what we are attacking.  I think your Honour can take judicial note of the fact that Australia has no nuclear weapons.  If your Honour wishes, just going back to the article to which your Honour referred earlier, by Steven Crawshaw, if you would wish, I can obtain a copy of that or I can hand up this copy.

HIS HONOUR:   I have a copy of that.  I had to read it in another connection recently.

MS PERRY:   Thank you, your Honour.  With respect to the declarations which seek the opinion of the Court on Australia’s international obligations, the Court has said on many occasions that issues relating to Australia’s international obligations are non‑justiciable.  One of the reasons for this is that under Australian law, unlike the position in other legal systems, international treaty obligations are not incorporated into municipal law unless specifically incorporated by statute.  I would refer to the citations contained in footnote 21 of the Commonwealth’s submissions.

HIS HONOUR:   I would prefer to say, unless incorporated by lawmaker.

MS PERRY:   Yes, your Honour.

HIS HONOUR:   They can be, and usually are incorporated by a statute, but a judge can also - and development of the common law incorporate notions of international law.

MS PERRY:   Yes, through a different process the international law can have an impact on the development of the common law.  While the nature of obligations under international law to which the declarations sought relate, are not actually identified by the plaintiff, that is, whether they are obligations under customary international law, or created by treaty, the same principle would apply.  Rules of customary international law are not part of Australia’s municipal law system.  Your Honour, those are our submissions.

HIS HONOUR:   Yes, thank you for your assistance, Ms Perry.

MS PERRY:   Thank you.

HIS HONOUR:   Yes, Mr Lindon.

MR LINDON:   Just picking up that last point, first, sir.  The Commonwealth Parliament has passed several bits of legislation which, in addition to treaty and customary international law, are relied upon.  The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 is one. The Nuclear Non‑Proliferation (Safeguards) Act 1987 is another, and the South Pacific Nuclear Free Zone Treaty Act 1988 is another.

HIS HONOUR:   Would you just pass those up so I can take a note of those statutes?

MR LINDON:   Yes, sir.  I pass up a copy of the Weapons of Mass Destruction (Prevention of Proliferation) Act and regulations.  It came into force in November.  I pass up the citation for the Nuclear Non‑Proliferation Act and I will just dig up my South Pacific Nuclear Free Zone Treaty Act.  I do not actually have the Act in front of me to hand, without rustling unduly.

HIS HONOUR:   Just hand up what you have and I will take a note of those.

MR LINDON:   I will undertake - yes.  The name of the Act is the South Pacific Nuclear Free Zone Treaty Act.

HIS HONOUR:   Yes, thank you.  I have notes of those and they can be returned.

MR LINDON:   Yes, sorry, the South Pacific Nuclear Free Zone Treaty Act is 1986, sir.  So, we have the Nuclear Non-Proliferation (Safeguards) Act, the Nuclear Free Zone Treaty Act 1986 and the Weapons of Mass Destruction Act 1995.  This raises one of my major points about the presentation of my response to the Commonwealth’s motion.  Essentially, the only real issue, in my submission, between us is whether or not this writ can stay on foot in the manner in which it is, perhaps with some slight amendments, because it is quite clear from the Commonwealth’s submissions to the International Court of Justice that it does take the position that nuclear weapons are per se illegal, which is a customary to international law point.

It is quite clear from the legislation of the Commonwealth Parliament that nuclear weapons - their use, or threat of use - is completely outlawed in every way, save one, which I will return to.  One of my proposals would be that your Honour give directions that I be allowed to amend my writ to add particulars, and that the Commonwealth then file a defence and that the Court then deal with these preliminary questions when it comes to deal with the substance as well, since it is basically a case on the documents, there is not much evidence required, and the extra amount of hearing time involved in going to the next stage of looking at the merits is not much.

In this regard, I point out to your Honour that the Commonwealth of Australia told the International Court of Justice that nuclear weapons are, per se, illegally, they cannot be justified in self-defence, and that the customary international law has, as of 30th October, certainly, changed and that nuclear weapons are, per se, illegal - their use, or threat of use, is illegal.  The Solicitor‑General raised three preliminary points as to the International Court of Justice’s jurisdiction to determine the point. 

These three points have surfaced again in these submissions, and one of the things I wanted to do was to turn to the three submissions made to the International Court of Justice as to why that court lacks jurisdiction and contrast those with this Court here, and make the point as to how, in fact, this Court does have jurisdiction.  Your Honour, it might be helpful, if that is agreeable to you, to refer to an affidavit of mine in matter No M306 of 1995 in which I have set this argument out, so it will be before you.

HIS HONOUR:   This was in earlier proceedings, was it?

MR LINDON:   Yes.  Essentially, when I had trouble - - -

HIS HONOUR:   I do not know what the earlier proceedings were, because I was asked did I want earlier files and I said, no, I would deal on this matter on the basis of the material placed before me by you, or by the Commonwealth.  But you ask me to have a look at that affidavit?

MR LINDON:   Yes, sir.

HIS HONOUR:   Is there any objection to my looking at that affidavit?

MR GRIFFITH:   No, your Honour.  I am not familiar with it, but no doubt I can catch up on it.

MR LINDON:   It is just that it is in written form and if my friend - - -

HIS HONOUR:   Would you identify the affidavit again, please?

MR LINDON:   Yes, it is an affidavit of mine, affirmed 9 November 1995.  If I could take your Honour to paragraph - - -

HIS HONOUR:   I have got a number of exhibits, but I do not - here we are, 9 November.

MR LINDON:   Yes.

HIS HONOUR:   Yes.

MR LINDON:   If I could take your Honour to paragraph 22 of that affidavit:

it is difficult to see how the three -

this is the last sentence on page 9 at paragraph 22:

reasons given by the Solicitor‑General to the International Court of Justice as to why it should decline to give the advisory opinions are relevant to why this Court should decline to issue the writ sought.  In fact, those three reasons of the Solicitor‑General, when applied to this matter before this Court, actually support the decision to allow me to issue the writ.

Paragraph 23:

Firstly, unlike the matter in the ICJ.....the declarations sought are closely related to a particular fact situation with present and future consequences to my rights and liabilities -

and I refer to paragraphs there, sir:

These questions are not abstract - - -

HIS HONOUR:   How do you say that they relate to your rights and liabilities, as distinct from any interest you may have as a member of the public - your personal rights and liabilities?

MR LINDON:   Yes.  Sir, I pass up correspondence commencing on 15 June 1993, up until 22 February 1996, in which the Australian Government Solicitor on several occasions has indicated that bankruptcy proceedings will be launched against me in relation to certain court costs in which I had argued the illegality of nuclear weapons under Australian Law.  This was a case in 1987 - - -

HIS HONOUR:   But is this not a boot straps argument?  You are saying because you sought to agitate an interest that you have simply as an individual, and that that has led on to costs orders against you, that therefore you have thereby given yourself a standing or an interest in prosecuting this matter.  What I am asking you about is, leave aside the litigation, what is your interest over and above that of any other person in Australia in the declaration of rights and liabilities in this area?

MR LINDON:   Well, essentially, sir, I did not seek to litigate; I was prosecuted for trespassing at Pine Gap and was fined $350 and eventually, because I raised preliminary questions relating to the legality of nuclear weapons or otherwise and it is the Commonwealth’s duty to enforce the law, I incurred a debt of $50,000 or $40,000 and I am now being bankrupted for that.  I think that is slightly different to seeking to initiate, as it were, a vehicle for ‑ ‑ ‑

HIS HONOUR:   Where were you trespassing?

MR LINDON:   At Pine Gap, your Honour.  It is a US spy base outside Alice Springs.

HIS HONOUR:   I see.

MR LINDON:   And, just on that topic, sir, you have heard the Commonwealth state that there are no nuclear weapons in Australia; that is disingenuous.  The whole point of my arguments then and now is that in fact Australia does participate in the deployment of nuclear weapons.

HIS HONOUR:   Well, you are saying this, but I do not have any evidence before me.

MR LINDON:   I have material to put before you on that, sir.

HIS HONOUR:   I do not think there is any need for me to receive the letters that you have referred to on the basis of the explanation that you have given as to what they contain; it does not seem to me that they advance the matter in any way.

MR LINDON:   Well, only this far, sir, that it is well accepted that bankruptcy is a change of status, it is different to an ordinary debt ‑ ‑ ‑

HIS HONOUR:   Indeed it is.

MR LINDON: ‑ ‑ ‑so therefore one would have thought that, under the formula of rights and obligations and personally being affected, one would have thought in a common sense view, that I am personally affected in that way.

HIS HONOUR:   Yes.

MR LINDON:   Your Honour, the judgment which is perhaps most relevant to that is a 1989 decision of the Full Court of the Northern Territory Supreme Court.

HIS HONOUR:   I do not think you need a judgment to show that bankruptcy effects a change of status.

MR LINDON:   No, that judgment shows that the essential questions at issue were whether or not nuclear weapons were illegal in the municipal law sense, and also whether or not the Nuremberg principles applied to impose a duty on citizens to stop and prevent serious crimes such as genocide.  Your Honour would take judicial notice of the fact that nuclear weapons are a weapon of mass destruction like chemical weapons and so on and that genocide as defined within the terms of the Genocide Convention Act 1949, the destruction caused by nuclear weapons is clearly an example of genocide because it is a mass civilian deaths, and I can take your Honour to that in more detail later as to the legal definitions of genocide in Australia.

I also refer your Honour, of course, to the words of Justice Brennan, as he then was, and Justice Toohey in Polyukhovich’s Case where they talked about the customary international law of genocide applying in this country that it is a crime that is so heinous that it is either through customary international law or through the ordinary law of the land imported into this country.  Justice Brennan made the same point in the earlier decision of Re Limbo which I will refer to in a while.

Just returning, if I may, sir, to this affidavit.  I basically take apart the three reasons that the Solicitor-General gave to the World Court as to why it ought not give the advisory opinion sought to the United Nations, and I contrast those with municipal law.  So, firstly I say in paragraph 23 that:

the declarations sought are closely related to a particular fact situation -

That is something which your Honour says there is no evidence before you on, but briefly my argument is that Australia provides facilities at Pine Gap for the reception and transmission of information from space‑based satellites; this information is made available to the United States armed forces and to the Central Intelligence Agency in America and that the United States has always maintained a nuclear war-fighting strategy, it is a nuclear power, it is well accepted that it deploys and targets nuclear weapons, Australia participates in that by providing these bases.  To say that there are no nuclear weapons in Australia, as I say, is disingenuous.  That is the whole thrust of the argument being put to the Court, that in fact, except for one exclusion in the South Pacific Nuclear Free Zone Treaty Act and one in the Nuclear Non-Proliferation Act, Australia has made sure that nuclear weapons cannot be used or deployed within Australia and the Weapons of Mass Destruction Act makes clear that Australia cannot participate in that kind of behaviour outside Australia as well.

So there is a particular fact situation,  I just hold up briefly a map of US facilities in Australia, sir; it is a map which I will prove in greater detail later, but it shows about 20 United States facilities around Australia, and I also refer to the Defence White Paper of 1994 which has a couple of pages on the so‑called joint defence facilities and to the statement in the House of Representatives by the then Prime Minister in November of 1988 as to those facilities.  There is a forest of academic research in addition to that which I would put before your Honour.

I also, to do this submission properly, need to take you in detail to the statutes I have mentioned and take you through the sections which prohibit the kind of activity that it is alleged is illegal in Australia so that purely on the statutes alone, my submission in the case can be made out.  If I could take your Honour then in this affidavit to paragraph 25.  It says:

Secondly, unlike the matter in the ICJ, the declaratory orders of this Court have a binding legal effect on all Australian subjects and others within Australia.  And the specific declarations sought would have a practical effect on particular activities and courses of action proposed by both:

(i)  the Commonwealth of Australia -

and I instance there, sir, the current Senate inquiry into nuclear testing.  I could further instance, for example, the Canberra Commission on the Elimination of Nuclear Weapons, Australia’s participation in the United Nations General Assembly resolutions and the CHOGM resolutions and on page 11 I continue.  It also has effects on:

(ii)  active informed vigilant citizens (which the Court will note it is common knowledge that the Commonwealth is currently encouraging.

One of the Commonwealth’s documents I refer to is the Report on Civics and Citizenship Education, Department of Prime Minister and Cabinet, November 1994, called “Whereas the people” and also, sir, a discussion paper on the system of national citizenship indicators promulgated by the Parliament of the Commonwealth.  It is the Senate Committee that has put that together, together with a copy of my submissions to that Civics and Citizenship Education Report.

Thirdly, paragraph 26, sir, I will take you to ‑ ‑ ‑

HIS HONOUR:   Yes, I have read that.

MR LINDON:   Thank you:

there is no risk of the Court finding that the use of nuclear weapons is not illegal in some circumstances.....given

(a) what Australia has already recognised is the state of customary international law as at 30 October - - ie prior even to issue being sought of this writ, Australia has recognised that nuclear weapons per se are illegal -

and I quote:

“it is therefore illegal not only to use or threaten use of nuclear weapons but to acquire, develop, test or possess them” -

That is Senator Evans to the World Court.  Over on page 12, sir, I go to subparagraph (b) that:

Australia would be bound to agree under its international treaty “obligation to take positive action to completely eliminate nuclear weapons from the world” - - the Commonwealth is estopped from submitting to the court that Constitution s 51 placita such as defence of foreign affairs can justify any exceptions of legality -

because, quote:

“The right of States to self‑defence cannot be invoked to justify such actions” -

And, in paragraph 27, sir, I make perhaps a tendentious point that:

the making by this Honourable Court of the declarations sought.....would assist the objectives cited by Australia and help minimise the risks (as identified by Australia above) in the ICJ proceedings itself - - particularly if the ICJ is minded to follow the persuasive precedent of so distinguished a national court -

as this one.  I make use of this affidavit in one more sense, sir, if I could take you to - this is in relation to standing.  I heard what your Honour said about standing, but I just take you to paragraph 10 of this affidavit, sir, on page 6.  You will see I begin by referring to the reference of the Attorney‑General of the Commonwealth to review who can commence legal proceedings and:

In October the Commission proposed a new test to replace all the standing tests under the general law:  if the proceedings “will clarify legal issues to the benefit of the general community” then no personal stake.....is required.

HIS HONOUR:   But this was a proposal for consideration, I assume.

MR LINDON:   No more than that, that is true.  And on paragraph 11 your Honour has already mentioned the Judiciary and Navigation Act Case and there is also SA v Vic, the 1911 case is referred to by the commission and I particularly rely on paragraph 12, sir, on what the commission says that:

“The laws governing who can commence or participate in legal proceedings must be examined in the context of the legal system as a whole.  Among other things, these laws should take into account
- the need for a fair, efficient and effective legal system
- the role of the courts as lawmakers -

which your Honour has already alluded to:

- the need for accountable government -

and:

- the part that litigation plays as a mechanism for clarifying legal issues to the benefit of the general community.

HIS HONOUR:   Would you identify that document 4(b), the Law Reform Commission?  Is it a discussion paper or  ‑ ‑ ‑

MR LINDON:   Yes, it is discussion paper 61 dated October 1995 called “Who can sue.  A review of the law of standing”.  I do have, in loose form, the pages ‑ ‑ ‑

HIS HONOUR:   No, I will have that available.

MR LINDON:   Thank you. 

HIS HONOUR:   Yes?

MR LINDON:   So the statement of the Commonwealth’s via the Solicitor‑General to which I have referred in that affidavit, sir, is contained in this verbatim record of the International Court of Justice.  As I said, the ‑ ‑ ‑

HIS HONOUR:   Yes.  I will be most interested to read that.

MR LINDON:   I have to say that the statement prepared and read by the Foreign Affairs Minister as to the illegality of nuclear weapons and the eight pages of citations referred to and the different categories on which that statement relied, including the laws against injuring non‑combatants and human rights law as well as other matters, is a very convincing document and it is not just a two‑page political throwaway.  It is a deeply argued legal statement that ‑ ‑ ‑

HIS HONOUR:   I was not joking.  I will be interested to read it.

MR LINDON:   This is partly my initial flagging of an adjournment, sir.  There are paragraphs in that statement which I wish to take you to in some detail and it would be helpful if your Honour were to read it before, if that ‑ ‑ ‑

HIS HONOUR:   Just say what you can and then I will consider whether we have to have an adjournment.  It is undesirable if we can avoid it.  After all, you have had a little notice of this application and I am here and the Solicitor‑General and Ms Perry are here.  We are all here.

MR LINDON:   Yes, everyone is paid to be here except me, sir, and if one accepts any validity in my point about the professional obligations of lawyers in Australia in the 1990s to act pro bono in the public interests in human rights matters, if that has any credence in this Court and if my actions are seen in some light in that way, perhaps I can be indulged.  I also have a young child and am attempting to run a legal practice.

HIS HONOUR:   The issue you raise is a very serious issue.  The question is whether the vehicle you have chosen is appropriate and this Court is appropriate.  There are few issues more serious and important than the issue of the danger of nuclear mass destruction and no one will deny that.  The question is whether this Court has an appropriate part in that and whether the process you have chosen is an appropriate vehicle to enlist that part.  That is all.  I do not for a minute underestimate the seriousness and importance of the issue that lies behind your application.  The only question is whether this is the court and this is the vehicle.  They are legal questions.

MR LINDON:   And whether this is one of those injustices to which we are still impervious or indifferent and which we do not yet see clearly, sir, to quote from your maiden judgment in this Court.

HIS HONOUR:   It was not a judgment.

MR LINDON:   Quasi‑judgment.  It has some weight.

HIS HONOUR:   It was just another speech.  Let us get on with the legal argument.

MR LINDON:   Thank you, sir.  But given the importance of this matter and given that your Honour does say it may not be the appropriate forum, it may not be the correct vehicle but it is a very important issue, I would hate to have not done my best in terms of presenting everything to your Honour that can be presented and I would make the point that if I had access to senior counsel and junior instructing solicitor to prepare this case and present it properly, I would feel more comfortable in speaking to the Court and presenting this matter to you.  I take as an example Dr Perry’s assertion that there are no nuclear weapons in Australia.  I mean, that is a very important fact and if it turned out that what I assert is correct ‑ ‑ ‑

HIS HONOUR:   I think in fairness, that was something that I suggested but what is said is that on the face of this document to seek declarations at a level of abstraction such as the threat or use of nuclear weapons in any circumstances is not permitted under municipal law is so vague, general and unconnected with any real right or obligation of any particular person that it is at a level of abstraction that a court would not regard as appropriate for a court to declare.

MR LINDON:   Perhaps not, because the court generally would look askance at a general question; however, it is horses for courses.  There are some questions which can be dealt with in that way and because nuclear weapons are so important, have such a profound effect on the planet and people’s lives, maybe it is one of those questions.  Sir, in relation to that I sought to take proceedings to stop a nuclear submarine coming into Melbourne.  I have a copy of those proceedings which ultimately were not proceeded with because the submarine landed.  I have also drafted proceedings on a notice to quit to the US bases which is being taken by several citizens.  I have a copy of those draft proceedings.  I say both of those, for example ‑ ‑ ‑

HIS HONOUR:   I think I will do enough to deal with the proceeding that you have actually started that I am dealing with.

MR LINDON:   Yes, simply that they are not abstract and theoretical.  These questions are arising.  There are visits by nuclear submarines and nuclear ships.  There is the uranium ‑ ‑ ‑

HIS HONOUR:   That may be so, but I have before me a particular statement of claim which is under attack and I have to concentrate on that.  I will do enough to deal with the one you have got.

MR LINDON:   That is right and your Honour also made the point to counsel on this side that things have moved on in the past 20 years or so and certainly this writ was only lodged after the International Court of Justice agreed to decide whether or not it should give advisory opinions one from 1993 and one from 1994 or 1995, sir, and the questions were put by the United Nations ‑ ‑ ‑

HIS HONOUR:   This was on a reference by the General Assembly, was it?

MR LINDON:   The most recent one was, and the earlier one was from the World Health Organisation.  Prompted by International Lawyers against Nuclear Arms and the so‑called World Court Project, a New Zealand magistrate, Harold Evans - I can take your Honour to citations which give the history of the matter, but essentially that is the story, that after many years these matters have now actually been put to a court.          Now, granted the International Court of Justice is a different beast to the High Court of Australia and to other national Supreme Courts or Federal Courts of other member states of the United Nations; nevertheless, it has some authority and Australia - - -

HIS HONOUR:   Would you not be in a better position, or at least better than you are at the moment, if you were - and I think Justice Gummow put this to you - to wait for the International Court’s decision and then targeting some particular fact or situation in Australia that is said to be in breach of international law, as declared by the International Court, seeking some relief at that time.  I think Justice Gummow gave you that option to - - -

MR LINDON:   We discussed it.

HIS HONOUR:    - - -delay the proceedings, and you rejected the olive branch.  I am not saying that that would necessarily overcome the problems ‑ ‑ ‑

MR LINDON:   That is right, of international - - -

HIS HONOUR:    - - - that are in your path, but, you see, at the moment we have got what seems to be the correct forum, with the undoubted jurisdiction - or with arguable jurisdiction, to determine the question by international law and we do not yet know what it has to say for itself.

MR LINDON:   But my point is simply - - -

HIS HONOUR:   When would that be likely to be decided?

MR GRIFFITH:   Your Honour, it was intended to be by the end of March; probably now to be about the end of April.

HIS HONOUR:   Thank you.

MR LINDON:   That is my information too.  But your Honour I think, in a sense, has jumped ahead of me, which is why I did not take up the olive branch of Justice Gummow was because of this, sir; my assertion is that nuclear weapons are already illegal in Australia.  Taking “illegal” in a sort of layman’s term, giving it a technical meaning as lawyers we say, “It is against certain sections of Commonwealth legislation,” bla bla bla.  We say it is also contrary, perhaps, to customary international law.  We say it is also contrary to certain treaties.

Now, the treaties by which Australia participates in the nuclear targeting of civilian populations overseas and, also, thereby making civilian populations such as the population of Alice Springs nuclear targets themselves - the treaties are, in fact, not legislatively enacted.  The various treaties in relation to Pine Gap, the United States/Australia Armed Forces Agreement, and even the ANZUS treaty, are not legislatively enacted.  The nearest that we come is the ANZUS Treaty Act, and that merely ratifies, in two short sections, the treaty.

Those treaties cannot operate against the legislative power of the Weapons of Mass Destruction Act, the South Pacific Nuclear Free Zone Treaty Act and the Nuclear Non-Proliferation Act.  So that, I accept my friend’s argument that unless things are legislatively enacted they - you know, treaties do not have the force of law in Australia, and I say - I turn that around and I say that is right; the treaties by which the Commonwealth of Australia agrees to participate in the nuclear targeting of civilian populations with America do not have the force of law in Australia and, in fact, there is legislation which outlaws the part of the operations carried out under those treaties.

Now, your Honour, just pausing there, your Honour will be well aware that - well, I assume your Honour is well aware - it is A long‑standing debate in the Australian community as to whether these US bases are merely there to monitor nuclear disarmament and nuclear non‑proliferation, or whether they do have a more sinister purpose in times of warfare.  I have material here from, once again, a statement in the House of Representatives as to the use of these bases in the Gulf War, and how they provided shared intelligence and were used for - in my submission the shared intelligence was used for targeting of certain areas under military dispute in the Gulf War.  So that they do have a military, and they do have a strategic war‑fighting capacity, as well as the very benign and applaudable nuclear disarmament verification aspect.

Dr Perry referred to Ingram’s Case, or maybe, in fact, your Honour introduced Ingram’s Case.  Now, that was a case where there was actually a motion for judgment.  Now, in this case I had intended to move for judgment at the expiry of the time required in the writ; but I did not do so because the Commonwealth alerted me to the fact that they would be bringing this action.  One of the other directions in the timetable I have been flagging is, in fact, if the Commonwealth were not to file a defence, then I would, in fact, move to sign judgment and that would put us closer to the procedure that was being considered by this Court in Ingram’s Case.

I, of course, distinguish Ingram’s Case in my favour, naturally, in relation both to time having moved on, particularly the various initiatives that we see in both the Australian municipal law area and in Australia’s membership of the international community.

At the time of Ingram’s Case there was no nuclear South Pacific Nuclear Free Zone Treaty Act, there was no Nuclear Non‑Proliferation Act, there was no Weapons of Mass Destruction (Prevention & Proliferation) Act.  There is now; that is legislation.  It is a different situation.  The other point I make, sir, in relation to Justice Gummow’s comment about why not wait and see, is that from my point of view as a citizen being vigilant, and from my point of view as a lawyer carrying out my professional obligation to defend human rights, I have been involved for nearly nine years in arguing that nuclear weapons are illegal, in very similar terms and relying on very similar material to that used by Australia in the International Court of Justice. 

As far as I am aware, up until 30 October of last year, Australia had continually denied ‑ that is to say, the Commonwealth of Australia ‑ that there was any merit in the legal arguments that I was putting.  It had denied that they were legal arguments, that instead they were purely political, and when on 30 October Australia presented to the International Court of Justice in a very solemn forum for many other countries, to my mind the self‑same legal arguments that I had been putting, it seemed to me that the question of justiciability, the question of standing and even the question of a matter under the debate about what the matter is when we are looking at declaratory relief was grounded. 

My submission is that up until 30 October, I could not properly have issued the writ in the form that you see it.  I have issued the writ and I did that because of the position and a statement on a law, not on politics, not on policy, but on a law that was made by Australia’s second most senior law officer, and our Foreign Affairs Minister who presented himself to that court as a former Attorney‑ General and a member of counsel.  So, my submission is they knew what they were doing; they were lawyers; they were making legal submissions.  We are in a different sphere now to the period before that when people could say that declarations in terms of this generality could not be made.

The validity of the point that you and Justice Gummow make is that if we waited until the end of April we would know whether the International Court of Justice was going to take the jurisdiction or the preliminary point, or whether in fact it was going to go beyond that and rule on the substance.  Now, my information is that the court appears likely to rule on the substance.  Perhaps that is the least maintainable argument that could be put to a sitting judge; that spectators think that the court is going to look at the substance and merits of the case, but that is the feeling of people that sat through the entire case, and particularly in relation to the submissions put up by Zimbabwe ‑ Zambia ‑ the last country, which melded together the view taken by Australia and the contrary view taken by the United States and France and the United Kingdom.

I also intend to provide the Court with a copy of the United States’ submissions to the International Court of Justice so that one can contrast the view taken by Australia and the view taken by the US.  The point I make from that is that the United States still maintains that its nuclear war‑fighting strategies and its use, stockpiling possession, testing, on computer, and deployment of nuclear weapons is legal.  Australia’s view is that it is not legal.  Australia’s legislation says that it is not legal and yet Australia allows, and participates in, the nuclear targeting of civilian populations elsewhere and thereby becomes itself a nuclear target from the people who it is participating in targeting overseas.

Your Honour may be aware that in relation to matter No 306, which is the affidavit that you are looking at there, I had filed a complaint to the Human Rights Committee about the Court’s refusal to issue the writ in question.  This appears in exhibit 1 before you in matter No 306.  So in exhibit 1 you will have a copy of the ‑ ‑ ‑

HIS HONOUR:   This is the United Nations Human Rights Committee, is it not?

MR LINDON:   Yes.  Sorry, your Honour, it is actually the Human Rights Committee under the optional protocol and many of the articles of the ICCPR on which I rely I also would rely on in this matter as well, that the same arguments that apply to this Court in actually issuing process and allowing access to justice to citizens to clarify the legal situation also apply in some way to the disposition of this matter.  For example, if your Honour were to find that there was an ambiguity or a lacuna in the current law, reference could be had to that.  I also in that document, sir, extract various quotations from the Australian position before the United Nations.

HIS HONOUR:   Well, if I have the Solicitor-General’s address to the International Court of Justice that should give me a good idea of what the Australian position in that court was.  The point that is being made is that questions of jurisdiction, justiciability, availability of remedies, and standing are different in this Court than they are in the International Court of Justice.

MR LINDON:   Right.

HIS HONOUR:   And that what may be possible to be achieved in an international court with its different charter and different procedures and different functions will be different from what you can achieve in this Court given, particularly, the background of some rather strict rules on jurisdiction, on standing, and on the admissibility of hypothetical questions.

MR LINDON:   Right.  My point is that it is not a hypothetical question.  It has very practical consequences both for me and the community.

HIS HONOUR:   Well, the four points upon which you seek declarations appear to be at a high level of abstraction and hypothetical character.

MR LINDON:   Yes.  But that is because they echo ‑ ‑ ‑

HIS HONOUR:   Assume that you were a native representing an Aboriginal community with its history and culture very close to the Pine Gap community, different questions, quite different questions would arise concerning a claim by them for declaratory relief than arise in a declaration which merely seeks the statement in the broadest possible terms, the threat or use of nuclear weapons in any circumstances is not permitted under municipal law.  So it is very different.  You are not seeking any remedy.  It does not lead to any follow-up.  It is just a statement of complete abstraction.

MR LINDON:   With respect, sir, it is quite clear that often a declaration is remedy enough, that merely by declaring what the law is, that is well settled now, I believe.  Given that this Court of Australia, no longer a colonial court or any other court, given that this is now an indigenous Court, sir, and it speaks to the Australian community and to Australian citizens, and that is part of its obligation to serve its citizens, it is helpful to citizens to be advised as to what the legal situation is in certain circumstances.  Now, if I am correct in saying that Australian and Commonwealth legislation prohibits the use of nuclear weapons under specific sections, which I will take you to - I mean, there are specific sections which section by section prohibit certain different kinds of activities to do with nuclear weapons ‑ ‑ ‑

HIS HONOUR:   I will look at those statutes.  There is no need for you to take me through them.  I have not looked at them before.  I was not even aware of them.

MR LINDON:   No.  As I have already pointed out, there is one exception which allows certain foreign countries to use nuclear weapons outside of Australia and it may well be that that is the legislative loophole on which the Commonwealth might be able to rely to say, “Well, there is an exception to the use of nuclear weapons.”  They weigh exception to the generality.

HIS HONOUR:   What is that section?

MR LINDON:   Right. Section 15(3) of the South Pacific Nuclear Free Zone Treaty Act purports to provide that section 10, which is the section prohibiting control over nuclear explosive devices within Australia:

Section 10 does not apply to or in relation to a nuclear explosive device of a foreign country, being a nuclear explosive device that is outside Australia.

Now, that section, in my submission, is inconsistent with a more recent Act, The Weapons of Mass Destruction Act, which purports to be a sort of coverall situation, a catch-up Act, and I go further and I say that if I am correct in my assertion that there has been a change to customary international law as at 30 October as far an Australian court looking at what customary international law is, then there is an argument, in my view, that section 51 placita, both defence and foreign affairs, which would allow the Commonwealth Parliament to legislate in this way, is now limited. Given that Senator Evans told the World Court that self-defence cannot be invoked to justify the use or possession or association with nuclear weapons, if that be right, then it may be that there is a limitation on either the foreign affairs or the defence power that would be invoked to say that the legislation is within power. If that be right, section 15(3) fails. In my view, it can be struck out. Therefore, the declarations can be made at that level of generality because then it will indeed be true to say that the threat or use of nuclear weapons in any circumstances is not permitted under municipal law. Although it appears to be general on its face - I mean, it is general, but it is merely summarising. As your Honour has pointed out, nuclear weapons and the threat of them is a very, very serious problem. It is hard to think of one more serious.

It cannot be beyond the power of this Court to declare once and for all, so that everyone knows, no more argument about it, “We are Judges of the High Court of Australia, very experienced lawyers, we have read the legislation, we are aware of customary international law and we find that there is no situation in which municipal law permits the use of nuclear weapons because we, on a plain reading of the Weapons of Mass Destruction Act,” and the other two Acts that I have mentioned, “can conclude in no other way than that the use or the threat of use of nuclear weapons in any circumstances is not permitted.”  Have I lost you on that point of are you way - - -?

HIS HONOUR:   No, I understand how you are developing the point.

MR LINDON:   Your Honour appreciates that the actual declaration sought mirror almost word for word the advisory opinions sought by the International Court of Justice with the addition of the words, “municipal” where it is relevant.  It may be, for example, that the Court will not make all four declarations; it will only make one declaration, or it might, in fact, simply make half a declaration.  It might not speak in any way to the international ‑ ‑ ‑

HIS HONOUR:   You would settle for a tiny fraction of a declaration?

MR LINDON:   Yes, of course I would, your Honour.

HIS HONOUR:   Yes, you make the point that you would not strike out the whole statement of claim if any of it can, by amendment, or if any part of it would be able to be rescued.  That is a trite principle in these matters.

MR LINDON:   It did not work for Coe, but, yes.  In relation to my foreshadowed amendment, sir, what happened was that - the history of this matter is that I sought to issue a writ; it was refused pending application for leave and finally the application was made.  What then happened was that there was a delay because the file had to go to Canberra.  There was some delay in me being able to actually allowed to issue the writ because the Deputy Registrar in Melbourne had to have the transcript before her and so on.  Very close to Christmas that was all finally achieved.  The transcript had come back from Canberra; I was advised that I could then issue the writ if I wished.  I discussed with the Deputy Registrar this problem, which was that since 30 October events had moved on and I now had a complete copy of the statement of Australia, and there was various particulars I could add.  The question then was, “Am I allowed to add particulars to my - for example, particularising the statements of Australia, the UN resolutions and the Canberra commission and the various things that have happened since then?  Is it appropriate for me to add those particulars in this writ which I have been given leave to issue?”.  The Deputy Registrar, probably correctly, thought not since I would then have to make an application again, probably.  My view is that is not correct because according to the rules one can make any changes one likes to one’s writ before it is issued.

However, given this huge battle I had to issue the writ in the first place, it did not seem appropriate to engage in another round of that....the Court.  The writ was then issued on, I think, 22 December, as is.  Because his Honour had indicated the Commonwealth probably would - and given their previous attitude, it was not unexpected that they would - seek to strike out.  My view was that at some stage there would be an occasion of this kind and I would then seek to do several things and ask the Court to impose a timetable by way of directions, which has been done in other large litigation such as the Mabo epic and so on.  So that, in fact, I would be given leave to amend my statement of claim to add particulars to various paragraphs and perhaps, having heard what the Commonwealth has said about my pleadings, to negotiate with them a form of pleading that they would be happy to allow to remain.  For example, I take it that paragraph 8 of my statement of claim is defective, according to their views, because I have not stipulated in detail what the matter is.  I also take them to be saying that I have not formally claimed standing, even though I was attempting just to draft in plain English and all the material matters on which I relied for standing are, in fact, pleaded in paragraph 7 and earlier.

Objection to my statement of claim cannot be taken on the grounds that it does not look like a conventional statement of claim, heavy with legalise, because it was partly drafted with the people mentioned in paragraph 9 in mind, that is to say, the people that had filed declarations of conscience with the International Court of Justice; that is to say ordinary Australian citizens.  My intention was to make the necessary legal component of the drafting as non‑off‑putting and non‑intimidating as possible to a non‑lawyer, so that they could understand what it was that was being claimed and what was being sought from this Court.

If the only objection to the declarations sought is their generality, then - I will not repeat what I said to you about generality - but if one accepts that these matters are justiciable, that is to say that there is Commonwealth legislation - and I do not believe I needed to have pleaded the Commonwealth legislation, because that is, in a way, the law that would be argued when we came to legal argument.  I do not think I need to plead that.  I take the Commonwealth to know what its legislation is.  I take the Commonwealth to know that it does have Weapons of Mass Destruction (Prevention of Proliferation) Act and the other two nuclear Acts I have referred to.  If one accepts that there is standing, although your Honour is not very excited about my bankruptcy argument, but even if one accepts that there is confusion in the community as to exactly what is meant by Australia’s statement to the World Court, and in this regard, sir, I take you to exhibit 2 in matter No M306.  Exhibit 2 is just a very slender exhibit containing - no, that is exhibit 3, sir.  Exhibit 2 is just a slender, stapled document.  It has two photocopies of a press clipping.  Your Honour is looking at exhibit 3, and exhibit 2 is not in booklet form.

HIS HONOUR:   Yes, I have it now.

MR LINDON:   You will see there that there is a confusion between the then foreign affairs minister and the then opposition foreign affairs spokesperson as to exactly what the effect of Australia’s legal submissions to International Court of Justice meant, both internationally and domestically.  I hand up, sir, to supplement that excerpt from The Age of Thursday 8 February, page 11, which was during the campaign, in which the headline is “Parties at war over nuclear testing”.  Mr Downer says the Coalition has been committed to the elimination of nuclear weapons since 1970 when the then Prime Minister, John Gorton, signed the nuclear non‑proliferation treaty and Senator Evans is saying that a coalition government could not be trusted to pursue a nuclear‑free world or the recommendations of the Canberra commissions.

HIS HONOUR:   I have simply put those press cuttings with exhibit 2.  You have no objection?

MR GRIFFITH:   No, your Honour. 

HIS HONOUR:   Yes?

MR LINDON:   So, I say that there is some confusion in the Australian community as to exactly what the municipal situation is in relation to ‑ ‑ ‑

HIS HONOUR:   Normally confusion in the community about what politicians say is sorted out in Parliament, not in the court.

MR LINDON:   Yes, except that this was said in a court of law in a case in which an advisory opinion was being considered on exactly the same questions on which I am seeking declarations and I merely use those articles to prove as a fact, if you like, that there has been some debate - call it confusion, if you like - as to exactly what that means.

HIS HONOUR:   Yes.

MR LINDON:   And one of the reasons for seeking a declaration is to clarify the law.  The law at the moment appears not to be clear to both the Commonwealth and to other people. 

HIS HONOUR:   I am beginning to feel, as Justice Gummow expressed it, that you have been given more time than you would have been given in an appeal.  I have got the broad parameters of this matter.  Do you have anything else that you want to say or is there anything that if you cannot say it today you could put in writing and send in within a couple of days?  We have to conserve our time, Mr Lindon.  We work under a lot of pressure here and I think this is an important matter from your point of view and the issue behind it is certainly important from everybody’s point of view including mine, but we have to be efficient in the disposal of time.

MR LINDON:   I understand that, sir, and I am embarrassed to have to be told that by the Court when, in fact, I would have preferred and still do prefer to present my response to the written submissions of the Commonwealth in the same way which they have done with the two exhibited thereto  ‑ ‑ ‑

HIS HONOUR:   When could get that in?

MR LINDON:    ‑ ‑ ‑ and having done that then, to speak to it, sir, which is why I indicated earlier ‑ ‑ ‑

HIS HONOUR:   I do not think we could give you another hearing.  I think you will just have to put that in writing because  ‑ ‑ ‑

MR LINDON:   But, sir ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ you have now had about an hour and a quarter and that is more than people get with prisoners in gaol for fifteen years.  In special leave applications they get half an hour, or twenty minutes; less.

MR LINDON:   Mabo got more, Teoh got more.  This is an important case, sir, and ‑ ‑ ‑

HIS HONOUR:   That is true, but that was at a point of a hearing.  Here we are at the very threshold, so these sorts of matters tend to be dealt with rather more efficiently.

MR LINDON:   Right.

HIS HONOUR:   However, I think if you were given the facility to put in a written document by the end of the week that ought to give you plenty of time to get your submissions together.

MR LINDON:   Well, sir, that is just not the case.  I have - on one hand the Court is telling me how seriously they take the matter and it is very important and that I am to be given a fair hearing.  I have indicated from the outset I do not believe I have been able to do justice to the case to be presented.

HIS HONOUR:   You address this issue at a point of its importance as a human being and I understand that.

MR LINDON:   And as a lawyer.

HIS HONOUR:   But I have to focus upon three legal submissions which are put before me and I think you will do your cause and your statement of claim better if you concentrate on those three points and, strictly speaking, you are the party who is seeking to invoke the jurisdiction of the Court.  You could have anticipated these points and you have not.  Now, I am prepared to give you a degree of leniency because I myself only got this submission this morning and I think it is fair that you should have an opportunity to put your written submissions in and I take into account the fact that you are not with any outside assistance, you are appearing in your own interests, so that I think if you have by the end of the week that ought to be plenty of opportunity to put those submissions in and if you do not have access to typing, you could do it in neat handwriting and I will read it.

MR LINDON:   No, I type, sir.  My problem is I have got a commitment to - well, let me say that the wrath of this Court is as little compared to the wrath of my wife if I do not go off on a family holiday which has been planned for some time now, and I do not intend to do that.  I feel as though it is - I suppose I am saying what is the rush?

HIS HONOUR:   Well, how long do you ask for then?

MR LINDON:   Initially, I was thinking to have this matter adjourned for one month so I could prepare properly.  Now, what is the rush?  If it is adjourned for one month, how can that ‑ ‑ ‑

HIS HONOUR:   The only rush - can I tell you the rush from my point of view?

MR LINDON:   Yes, sir, please do.

HIS HONOUR:   The rush is that I have sat here now for two hours.  I have heard Ms Perry’s argument and your argument and it is fresh in my mind.  By a month, I will have heard countless cases and the nature of the human mind is such that it protects us.  It blots out things after a couple of extra cases.

MR LINDON:   True.

HIS HONOUR:   You would understand that.  So I think it ought to be done, otherwise it is very inefficient and I have to sit there and then double the time input by reading the transcript.

MR LINDON:   Yes, I see what you mean.  I did indicate at the outset that my preferred position was to do it by way of affidavit and exhibit and not waste the Court’s time and you say, “Bat on” which we have batted ‑ ‑ ‑

HIS HONOUR:   Well, I hear that, but could you not get in the essence of what you want to say if you have over the weekend and you can send it in early next week?  After all, you now have the written submissions.  They are quite succinct.  They refer to authorities.  You have heard the contentions that have been put by the Commonwealth and you yourself have had a good opportunity to put your point of view.  I think you have really got to target your attack on what the Commonwealth says in the written submissions rather than talk at a level of generality about the seriousness of nuclear weapons because every thinking citizen knows how serious that danger is.

MR LINDON:   Well, sir, my problem is simply this that, as a lawyer, seeing what can be done in terms of the presentation of this case and being aware of what could be done if there were more senior counsel and more experienced solicitors than me involved, I believe, for example, that the particular sections, for example, of the legislation that I have been in general terms mentioning, if they are actually detailed and specified - there is an enormous amount, in my view, of presentation work that could be done. 

For example, your Honour was not very excited about my claim to have particular rights and obligations and I feel that maybe that is because it has not been put before you in a way that might have been done by others.  I also hear you say that, at the end of the day, you have got to make a decision and this is a preliminary part of the process.  It is just that for me it is sudden death for me, as a citizen, if this Court is to take the view that it will rule in the Commonwealth’s favour at this preliminary stage, given its almost hypocritical statements and attitudes in the World Court.  There is a

strong moral pressure on me to do my utmost, which is competing with my own private obligations.

HIS HONOUR:    :   There is pressure on all of us. 

MR LINDON:   On all of us, that is true. 

KIRBY J:    In the court from which I came, this sort of application would have been dealt with in a quarter of an hour by me.  I have sat here for nearly two hours - I am not complaining and I am not rebuking you - I am simply saying that we have to conserve and husband the time because it is short and it is important.

MR LINDON:   I hear you.  So, I should stop whingeing and sit down and basically say that if, on reflection, having sat down this afternoon with the material and thought there is glaring things that I should have drawn the Court’s attention to, I will file a supplementary thing and serve it on the Commonwealth and they can respond to it.  And if I feel, hearing what you have said about the preliminary nature of this application, that in general terms I have taken your Honour to the matters that I think you ought to consider - whether or not in any detail is not important - at least I have raised them with you, I will not do that.  I will not make any follow-up document.  Thank you for your time, sir.

HIS HONOUR:   Would you be able to send that in within the space of a week?

MR LINDON:   Yes, sir.

HIS HONOUR:    Very well.  Thank you very much for your assistance Mr Lindon.  Mr Solicitor

MR GRIFFITH:   Your Honour, we would like to make it clear that we attacked the claimant’s declaration as a prayer for relief.  We are not concerned all that much with the statement of claim, other than to make the point that our submission is that it could not be reconstituted so as to support declarations which could be maintained in the writ.  So the essence of our application, your Honour, is that the statement of claims should be struck out and, as in the ACF Case and Ingram, that the action be dismissed.

Your Honour, in paragraph 11 of our written submissions, we have gleaned as best we could from the statement of claim various ways in which a claim for standing could be put and seek to answer that, but we do not, in doing that, raise any pleading points about them.  We merely say, looking at it as benignly as possible, your Honour, this is all, putting it at its highest, that could be said for standing and if that is how it is put, we say there is no standing.  We contrast, say, the situation between ACF and Onus and Alcoa, where there was a special interest.

HIS HONOUR:    If the Federal Parliament enacts a law which puts a limitation on the use of nuclear weapons in or from Australia - I have not looked at the South Pacific Act, but there must be some way whereby if it is contended that that law is being breached, that a person with appropriate standing can bring the matter to the court in order that the rule of law will be upheld.

MR GRIFFITH:   The point your Honour makes is really perhaps implicit in Horta, because part of the claim - there was a claim against a treaty - there was also a claim against particular legislation that one sees listed in the questions in 181 CLR at 192 where there was a prayer for relief that Commonwealth laws were invalid and that explains one reason why the order of argument, your Honour did address that issue and then went backwards through justiciability and, as I said, standing was not reached. But your Honour’s general proposition is one that may well be a case if the qualification is accepted, if there be standing, having regard to the particular legislation that is involved but the contrast we make here, your Honour, we support our claim that there is no matter if needs be is that this is so far removed from that situation that one does not get to that ambit of discussion, in our submission, and we say that makes our summons today the appropriate course to resolve the matters at the threshold.

HIS HONOUR:   Can I ask for your help on this point.  You say not only to strike out the statement of claim but to dismiss the action.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Why would one do that?  Why would one not be content with simply saying on its face this statement of claim presents no cause of action but it is up to the plaintiff to ‑ ‑ ‑

MR GRIFFITH:   Perhaps I could contrast Kruger, your Honour, where we applied to strike out the statement of claim on the basis that one could not claim damages for breach of an implied constitutional rights, immunity or freedom and the essence of that application was, your Honour, to enable the plaintiff to replead which in that case added a claim in tort, claim in damages, which overcame the difficulties, so it was not an attack on that aspect in limine but on the pleading, but here, your Honour, our attack is not so much on the pleading.  We are happy for your Honour to consider it on the basis, however it is pleaded, an action for these declarations cannot be maintained and, therefore, your Honour, it would seem, as in the ACF Case, the appropriate order is not merely that the statement of claim should be struck out with an implication of a right to replead, but the action should be terminated.

HIS HONOUR:   I had in the back of my mind I had to look at standing in the Court of Appeal and I had in the back of my mind that there has been another case since ACF which was, shall we say, the next step along the path to a larger standing right.  You do not remember what that case is in this Court?

MR GRIFFITH:   No, I do not, your Honour, I am afraid.  I will rack my memory and advise the Registry if we do, your Honour.  When one looks at Order 26 rule 18, your Honour, there is a clear power to make such an order that we seek and we refer to the fact that it was made in ACF and also in Ingram but, your Honour, it would seem logically if the statement of claim is struck out on the basis we would say that the claim for declarations are not and we say cannot be supported then it is appropriate for the action to end rather than to be hovering, as it were, with perhaps a possibility of another statement of claim resulting in the arguments being rehearsed again before the Court, but we put our application at that highest level of saying that a claim for declarations ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that.  There are two other matters on which I need help.  The first is the history of the litigation involving Mr Lindon and the second is he asserts that the relief he seeks is essentially the same as in the International Court of Justice.  First of all, dealing with that second point, is that correct that the declaration sought at the International Court of Justice paralleled the four declarations he sought?

MR GRIFFITH:   Your Honour, it is a little bit more complicated.  Of course in the International Court of Justice the matter went to the advisory jurisdiction of the court and, as was indicated by the plaintiff, your Honour, there were two requests for advisory jurisdiction, one from the World Health Assembly and, secondly, one was expressed as a matter of urgency from the General Assembly, but the essence of each question - we could perhaps give your Honour the precise questions - was whether or not the use of nuclear weapons was unlawful in all circumstances being contrary to international law.  The questions were differently framed, one in the positive, one in the negative.  That is the essence of the questions, your Honour, and as has been referred to, for example, in the situation of Australia’s submissions and other States, the first submission made, your Honour, was that the court could not answer such a question even as an advisory opinion and then the alternative approach was if the court does proceed to answer it then there is our submissions as to how it should be answered and other States ‑ ‑ ‑

HIS HONOUR:   The Commonwealth took an In re Navigation and Judiciary Act point in the International Court really.

MR GRIFFITH:   Your Honour, it was in the original draft but I struck it out of the footnote.  It did not seem apt in the international jurisdiction but, your Honour, inasmuch as the court’s judgment may next month answer or not answer that question, we do not know if a majority of the judges resolve that the question should be answered, then it will exist as an advisory opinion only.  That is the basis of the jurisdiction.  Our submission would be that that judgment cannot advance things further here.  That is all the matters we ‑ ‑ ‑

HIS HONOUR:   Yes.  On the question of the history of this litigation, my impression from something I read - the only other thing I read that is outside the material in the case was a transcript of proceedings before Justice Gummow, which was given to me.

MR GRIFFITH:   That is in this matter, yes, your Honour.

HIS HONOUR:   And I got an impression from that that there was some order made that the plaintiff could not commence proceedings without the leave of a Justice.  Is that correct, or not?

MR GRIFFITH:   That has been as a result of earlier proceedings.  There are quite a few, as we understand it, and your Honour indicated he did not regard that as relevant and we had not taken it as relevant, but the plaintiff make clear in his submissions today that he is in a position he can only issue a writ with leave of a Judge.

HIS HONOUR:   That permission must have been given then for the issue of this process.

MR GRIFFITH:   It was, your Honour, by Justice Gummow.

HIS HONOUR:   I see.  Was that after a hearing, Mr Lindon?  Was there a hearing?

MR LINDON:   Yes, sir.

HIS HONOUR:   And who did that come before now? 

MR LINDON:   Justice Gummow, sir.  That is the transcript you have read.  The bulk of the hearing time was taken up with this question of whether he could issue a writ about the appointment of women as judicial officers and whether that was ‑ it is reported, I think, in the most recent ALJR.  That was a lot of the hearing, and Justice Gummow gave me leave.  He read the writ; gave me leave to issue it; noting, of course that I would probably face an application such as this.  In terms of the entire history of the matter, sir, the case I referred to, the Alice Springs Pine Gap arrest, is reported at 65 NTR 19 ‑ ‑ ‑

HIS HONOUR:   What is the name of the report?

MR LINDON: It is 91 ALR, and it is at the back 65 NTR 19 Limbo v Little.

HIS HONOUR:   Yes, I will have a look at that, thank you.

MR GRIFFITH:   Your Honour, we do have a transcript of the proceedings of 28 November before Justice Gummow, but we were not intending to ‑ ‑ ‑

HIS HONOUR:   Yes, I have those.  I must have misunderstood something I read in it.  I will have another look at that.

MR LINDON:   Does your Honour wish any of this marked for identification material to be passed to ‑ ‑ ‑

HIS HONOUR:   Which is that material?

MR LINDON:   We marked several documents “MFI 1 to 5” ‑ ‑ ‑

HIS HONOUR:   Yes, you might pass that up and they can remain in the Court file; unless you want them back.  Do you want them back?

MR LINDON:   We will have to discuss copying.  I cannot afford to pay 25 cents a page ‑ ‑ ‑

HIS HONOUR:   What are they exactly?

MR LINDON:   Well, this is the verbatim record of the International Court of Justice.

HIS HONOUR:   I thought we had got Dr Griffith’s submission on the International Court of Justice in exhibit 3.

MR LINDON:   We have.  It actually runs from exhibit 1 to exhibit 3 ‑ ‑ ‑

HIS HONOUR:   Well, if I have got those, why would I need them again?

MR LINDON:   That is why I am asking.

HIS HONOUR:   It is always a pleasure to hear or to read Dr Griffith but ‑ ‑ ‑

MR LINDON:   It is great in French and the other documents that I have referred; the resolutions of UN General Assembly and so on; you do not need to have those before you?

HIS HONOUR:   Well, perhaps it will be enough if they are copied, and they can be done by my associate and returned to you.

MR LINDON:   Fabulous.  Thank you.

MR GRIFFITH:   Those are our submissions, your Honour.

HIS HONOUR:   Yes, thank you very much, Mr Solicitor.

MR GRIFFITH:   Sorry, your Honour, one matter that ‑ I understand it is a possibility written submissions may be filed by the plaintiff, your Honour ‑ ‑ ‑

HIS HONOUR:   Yes.

MR GRIFFITH:   We would endeavour not to seek to answer them unless there was some point that we felt it was essential to.

HIS HONOUR:   Yes, of course, but they are to be in by next Monday and therefore that would be appropriate that if you are to answer them you should answer them by the end of next week.

MR GRIFFITH:   We would certainly do that. yes, your Honour.  We will indicate to the Registry if we do not intend to answer them.

MR LINDON:   I will endeavour not to file them in the interests of there being an end to things.

HIS HONOUR:   No, if you feel that there are matters specific to the legal points that have been raised in the late to be received submissions from the Commonwealth then I would encourage you to put in a submission.  Thank you both for your assistance.  Yes, Mr Solicitor.

MR GRIFFITH:   One further point, your Honour, in explanation.  We did seek to have these written submissions filed in good time to reach your Honour and on Thursday I think became aware that they were filed in Melbourne and we filed an additional copy here on Friday morning hoping that they would reach your Honour.

HIS HONOUR:   Yes, I did not get them until last night.

MR GRIFFITH:   So we are sorry, your Honour, that they did not reach  ‑ ‑ ‑

HIS HONOUR:   No, I had plenty of other things to read.  Thank you both for your help.  I will reserve my decision in this matter but the parties have leave to file additional written submissions as I have indicated on the transcript.  The Court will now adjourn.

AT 11.31 AM THE MATTER WAS ADJOURNED