Nelson, An application by

[1988] HCATrans 253

~

~ ;,;-.~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth	No Pl6 of 1988
In an application by
MICHAEL WILLIAM NELSON

Nelson

DEANE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 24 OCTOBER 1988, AT 11.28 AM

Copyright in the High Court of Australia

PlTl/1/PLC 1 24/10/88

HIS HONOUR:	You are Mr Nelson, are you?
MR M.W. NELSON:	Yes, Your Honour.

HIS HONOUR:  Mr Nelson, I have read the · papers. What you

have to show before the process can issue is that

the requirements of the law have been complied with

in a case like this. That means that you need to

comply with the requirements of the rules of Court.

Having said that, there are two aspects of the matter

that you need to direct your mind to: one is that

while you say you are applying for a writ of mandamus
you do not identify any order that you actually seek;

the second aspect is that you do not identify the

facts which you say entitle you to the order. Do

you follow what I am saying to you?

MR NELSON:  Yes, I do.

HIS HONOUR:  What would you like to say about that. Let me

be specific:  you seek an order against, is it

Mr Fish or somebody called M. Fish?

MR NELSON. I was not sure how to word that. It is against

Mr Fish of the Attorney-General's Department.

HIS HONOUR:  There is nothing to indicate why Mr Fish is involved

in it or even who he is. Now, guessing from the

documentation, it seems that you want to be a registered

marriage consultant?

MR NELSON:	That is correct.
HIS HONOUR:	But there is nothing in the documentation that

indicates you have ever applied to be one or that

you have been refused or, if you have been refused,

what the reason for the refusal was. They are the

problems that are involved from the point of view of issuing an order directed against people. The

basis needs to be shown otherwise it would be unjust

to people to be brought up if the requirements of

the law were not complied with at the beginning.

Now, it is not my function, as you will appreciate,

to give you legal advice, but I just want to make

sure you understand the problems that are concerning

me and that you are able to deal with them.

MR NELSON: Actually, I thought I had already done that in

the very early stages, back in June.

HIS HONOUR:  I have copies of the documentation that has been

filed. Apparently the original file is on the way

and has not arrived but can I pass down to you the

copies of the documents that I have just so that you

can make sure there is not anything missing.	Take
your time, sit down if you would like.

PITl/2/SDL	2	24/10/88
Nelson

There is a registry letter there which is in the

Court file but which does not come from you.	You
will see that when you come to it.

MR NELSON:  Your Honour, even though I do seem a little

insecure in some of these legal matters, it does not

go away that I have, in fact, pointed out that it

was a writ of mandamus, which we all know is compelling

of duty, against M. Fish. It is there before you.

It was back in June, yes, Your Honour.

HIS HONOUR:  What exactly do you want Mr Fish and the secretary

of the department to be ordered to do?

MR NELSON:  The correspondence I have down here in my brief -

it may be of some help to you. I will point it out.

HIS HONOUR: If you would just tell me.

MR NELSON: It is: the administrative policy which the Attorney-

General's Department is working under is not the same

as what is actually written in the law and the duty

is even indicated in the law itself. I was at a total

loss that these things could be just pushed aside

as irrelevant considerations concerning this issue.

HIS HONOUR:  Can I ask you this, Mr Nelson, have you applied

to be registered as a marriage consultant?

MR NELSON:  Yes, I have.

HIS HONOUR: And your application was rejected?

MR NELSON:  No, Your Honour, it was deferred. They gave me

a whole pile of criteria that the Attorney-General's

people want me to do and the law does not give this

criteria and it gives straight-out duty. Everything

is subject under this "shall" which is compelling,

it is a duty - it has got to be done - and the Attorney-

General's Department have neglected to do that and

have put, instead, their own policy of what they want.
I know what they want;	I also know what the law

says they must do - "must" as in "will do".

HIS HONOUR:	What is - - -
MR NELSON:	The laws are before you. There are a whole pile

of laws but they are written on the affidavit of

14 October.

HIS HONOUR:  Yes. Have you the CONSTITUTION, section 116,

there with you?

MR NELSON:	Yes, I have that here with me.
HIS HONOUR:	If you could just tell me how you say that comes

into it?

PITl/3/SDL	3	24/10/88
Nelson

MR NELSON:  There are three parts in this, in section 116:

The Commonwealth shall not make any law for

establishing any religion·-

which is not the issue in question here. It is this

second part:

or for imposing any religious observance,

or for prohibiting -

well, I am not worried about the free exercise

because it has nothing to do with it, but the "imposing

a religious observance." Now, my members, even

though they are only small and I have no intention

to make a larger membership possible at this point,

but the fact still remains that they have understood

that when I pronounce them as married - being high

priest of their religion - they are married within

that religion and the Attorney-General's Department

does not disagree with that. As a matter of fact, I have that

high legal, government documents, they are still

in writing where they are quite happy with it.

classed as a de facto marriage when, in fact, it

is not. It is solemnized because I have solemnized

it under God's eyes but not in the eyes of the

law. Now, there are various other sections which make

that necessary and compelling that it is to be

recognized by the law and that is where the dispute

comes. The Attorney-General's people reckon, "No,

we want you to do this", the law says, "This is

all that is required", and they are at loggerheads

so, henceforce, the dispute.

HIS HONOUR:  Right. You just carry on with anything else

you would like to say.

MR NELSON:  I applied before going through this Court -

because I did not think that it was absolutely

necessary - to the ombudsman's department and it

is their job to try and rectify such problems

uniudicially - or non-judicially - and the reply rrerely

gives me section 27 of the MARRIAGE ACT, which

is not even applicable. I have all that with me

and you may look at it if you wish, and they also

tell me about a section 39. Both deal with the

register, not with me. All that deals with me

is section 29 and section 30:

the person is a miniser of religion of a

recognized denomination -

well, that has not happened because the initial

wording of this, when I applied to the Governor-

General, is "may exercise" and that is discretionary

so I had to apply to the Attorney-General. That

is what started the whole thing.

PITl/4/SDL	24/10/88
Nelson

HIS HONOUR:  Can I ask you this: do you say that that is

why you have not been registered? That you do

not comply with section 29(a)?

MR NELSON:  No, I am just reading out section 29, which

is where I am able to apply.

HIS HONOUR:  Do you :comply with section 29(a)?

MR NELSON:  Yes, I do. Most definitely.

HIS HONOUR:	The religion has been - - -
MR NELSON:	Yes. Well, it is not a "recognized denomination"

by the Governor-General, but in the eyes of the

High Court, which gave criteria itself for

religion, it is certainly recognized in the eyes

of the law.

HIS HONOUR:  So then, would it be true to say that you

say the reason why you have not been registered

is that the - as you describe it - "KMPL Religion"

has not been proclaimed?

MR NELSON. I have done my best to proclaim it; it is

just simply that the government has not accepted

it despite the High Court ruling which says that

they have to - and that was for the Church of Scientology

back in October 1983, a case in 9 ALR 65.

HIS HONOUR:  Yes, I remember the case.

MR NELSON:  Thank you. The issue actually revolves around

the next section, section 30 of the MARRIAGE ACT:

Subject to this Division, the Registrar for

a State or Territory shall, on application in

accordance •with the regulations, by a person

ordinarily resident in that State or Territory -

and I am complying with this all right -

who is entitled to registration under this

Division -

shall be registered by the Act. That leaves them

no choice and yet they come across and say, "No,

we defer you; we want you to do this - do that",

and so on. That is not what the law says. That is what policy says, yes, I agree, but it is not

what the law says and we are talking about law.

I go on to where it tells us, in the HIGH COURT

ACT itself, that there is an oath that is made by all

Justices of the Court and to read the ending:

PITl/5/SDL	5	24/10/88
Nelson

that I will do right to all manner of

people according to law without fear or favour, affection or ill-will. So Help

me God!

I am sure you are well aware of it. This is what

we are talking about - law, not government policy -

and the law is very explicit and section 15A of the ACTS INTERPRETATION ACT, which I think you are also

familiar with, merely puts all Acts, all of them,
subject again to the CONSTITUTION and the CONSTITUTION

says the law cannot impose its wishes, virtually,

on religious observance. They are mine. The religion

is mine to run, not the Commonwealth; it is my religion

to run and this is where the dispute is. My will

against the Attorney-General's will and hopefully

the Court can intervene because the law is written
that it will be done what the Attorney-General do

not want to do and it is for this reason that the
writ of mandamus, I thought might be just a simple
straight-forward matter to make them to do what they

should be doing. But now I have to sue them because

I can no longer have a government department just

rubbing aside law. They cannot do it.

(Continued on page 7)

PITl/6/SDL	6	24/10/88
Nelson

MR NELSON (continuing): If I want to do it or if you or

any other persons who disobey the law, we would

soon be in big problem, would we not? So why

cannot these big government departments who

disobey the law also not pay penalty?

HIS HONOUR: ls there anything else you - - -

MR NELSON:  I would have felt for sure that you would know

all the points and I would not have to go through

them again because they have been listed.

HIS HONOUR:	I have read the documents.
MR NELSON:	Understanding that the ACTS INTERPRETATION

ACT again under section 33 gives it the definition of what the government can and cannot do because

it talks about "where an Act imposes a duty",

the 11 may 11 is discretionary, 11 shal1 11 is obviously

very compelling. I mean, you know, I should

not even have had to apply for the writ of

mandamus. It is unnecessary time and expense

but, unfortunately, government departments think

they can run the show when they do not.	I believe
the law does.	I have faith in the law in that
regard.

There is a further point. This is from

the ADMINISTRATIVE DECISION (JUDICIAL REVIEW)

ACT and it is telling me to establish the ground

of review:

the applicant must show that the consideration

concerned is relevant and that the decision

maker is bound as a matter of law to take

it into account.

And this I have adequately done. I really see

that there is no choice in the matter. You do

it, that is it, finish. And that is entirely

up to the Court then because I am now going to

rely on section 32 of the JUDICIARY ACT and quote

it again:  The High Court in the exercise of its

original jurisdiction in any cause or matter

pending before it, whether originating in

the High Court or removed into it from another

Court ..... all such remedies whatsoever as

any of the parties thereto are entitled -

that means they will do it, shall have power and

shall grant. There is, again, no choice, no

question. I am not asking for anything I am

not entitled to under law. People may think

so; they can laugh at the religion, they can

do what they want but there is always recourse

PlT2/l/ND	7	24/10/88
Nelson

through the law and this is what I am here about

today, law - simple law.

I think these two might be very ;elevant

Your Honour. They were prepared but unfortunately

I did not have the time to register them here

to send to Canberra to come back here.

HIS HONOUR:  Mr Nelson, I will regard that as a submission

you have made orally to me.- I have read it- which
means we will keep that with the papers if you

would like it to be on the Court file.

MR NELSON:  Not particularly.

HIS HONOUR: It is a matter for you.

MR NELSON:  All I want to do is to, once and for all, end

the disput~ with the government. This is now
the second appearance that I have had to go before

the Court. Firstly, against social security -

I think the Court knows - and this particular

case and in both situations the policy is determined

and taken into account more than the law and

that, to me, does not seem right and surely to

any person sitting in a position of authority

would know what the law says and what is actually

being done are not always the same thing.

I know we have rules to run things efficiently

and effectively but I am not asking for more

than I need to. I am not going to go out there

and start marrying everybody that I meet and

run into; I cannot do things like that. But

what I am saying is that I want the marriages

that I have performed within KM religion to be

recognized by the government as being such
and there is only one way I can do that, register

myself as a celebrant so there should be no problems, but the Attorney-General's people

seem to have created a few. Then, of course,

there will be other departments with other

sorts of problems and refusing to their duties

and so on which means again I have to go before

the court which I would like to avoid because

it is interferring with my whole way of life.

HIS HONOUR:  I follow what you are saying but can I bring

you back to th E: point I raised with you at the

beginning and that is this: if you want in this

Court to bring proceedings you must get them

framed properly in accordance with the rules

of the Court. Now, if that means you have to

seek legal advice that is unfortunate but that

is the position. Now if, for example, you want

to bring proceedings in this Court attacking the requirement of section 26 of the Act, or the provision of section 26 of the Act for a

PlT2/2/MB	8	24/10/88
Nelson

religion to be proclaimed as recognized or

requiring that you be a minister of a recognized

religion, there is a way of doing that. That is

the type of matter that this Court deals with.

You just cannot come here without defining what

you want or setting out the grounds on which you

want it in the relevant documentation. Now, I

do not know there is more you can say about

that but that is the problem that I am trying

to direct your mind to.

MR NELSON:  I can definitely, Your Honour, because even

though, perhaps, with administrative matters

in circles of the judicial as well as just simply

governing running I may be naive in certain

areas and certainly not well to put but when it comes

to dealing with the law which is really the base root

of what the courts are here for, I do not really

see that I have neglected to do anything.

I have established that there is a very good

case that has to be answered and since there is no need to answer the case, the problem is only

a writ of mandamus which compels duty. This

was outlined back in June. Justice Wilson, that

I initially had applied to had it hit on the

head because, I do not know, I think the Registrar
has had something to do with it and I am going

to have to go right back to the outcome of

Order 58 rule 4(3), and it just means that it

was a "frivolous or vexatious" or an "abuse"

of the Court's proceedings. Well, it is neither.

The writ of mandamus is within our

CONSTITUTION as a remedy against the governmental

bureaucracy.	I believe there is also one in the
JUDICIARY ACT too, for such a recourse.	So
I have done nothing wrong. It is neither

"vexatious", nor is it "frivolous" because it

is certainly within the law; it can hardly be that,

and there is certainly no abuse of the system

because it is what I am entitled to according

to the law.

HIS HONOUR:  I think I follow, the way you put it. Well, now,

is there anything else that you can - - -

MR NELSON:  Not really, I think the case has been fairly

well presented.

HIS HONOUR:  Thank you, Mr Nelson. The original file

has now arrived, Mr Nelson, so I am reading from

that. On 2 June 1988 Mr Justice Wilson ordered,

pursuant to Order 58 rule 4(3) of the Rules,

that an "application for writ of mandamus" filed

in the Western Australian District registry of

the Court and directed to "M. Fish, and the

PlT2/3/MB	9	24/10/88
Nelson

Secretary, of the Attorney Generals Department" not issue without the leave of a Justice first

had and obtained.

Subsequently, Mr Nelson filed a summons

which in terms required attendance of all parties

concerned "on the hearing of an application on

the part of Michael William Nelson for an order

that compels duty. Called a writ of mandamus."

I propose to regard this summons as an application

for leave for the original process to issue.

As I follow the submissions of Mr Nelson,

who appears in person, he desires a writ of

mandamus to compel his registration as a

marriage celebrant pursuant to Division 1

of Part IV of the MARRIAGE ACT 1961, Cth ("the Act").

He claims to be entitled to such registration as

the "High Priest of K.M.P.L. Religion".

Apparently, he has sought registration as a

marriage celebrant. He indicates that a reason

why he has not been registered is that "K.M.P.L.

Religion" has not been proclaimed as a "recognized

denomination" under section 26 of the Act and that,

as a consequence, the requirement of section 29(a)

of the Act has not been satisfied. He desires

to attack that requirement on the grounds that

it contravenes section 116 of the CONSTITUTION.

The problem about the material upon the basis of which Mr Nelson seeks to obtain the issue of

a writ of mandamus is not that it demonstrates

that the application for a writ is foredoomed

to failure as a matter of substance. It is

that that material quite fails to identify the

capacity in which M. Fish is named as a proposed

respondent to an order or what it is that M. Fish

and the secretary of the Attorney-General's

Department should be ordered to do.	The
material does not refer to any specific

application by Mr Nelson to be registered as a

marriage celebrant or whether, if there was such a

specific application, it was refused or unreasonably

not dealt with. Nor does the material indicate

what, if any, were the grounds upon which any

such refusal was based or any such failure to deal

with it was sought to be justified. It is not to the point that Mr Nelson has sought to deal with some of these matters in his oral submissions

before me. The content of the order sought and

the factual base or grounds upon which it is

sought must be identified in the affidavit

upon which the application is based.

What I have said should not be taken as

indicating any conclusion on my part that the

desired application of Mr Nelson is completely

PlT2/4/MB	10	24/10/88
Nelson

devoid of merit. If, in fact, he has been

refused registration as a marriage celebrant -
or if his registration as such a marriage celebrant

has not issued - for the reason that the

requirement of section 29(a) that he be "a minister

of religion of a recognized denomination" has not

been satisfied, a serious question could arise

about whether that requirement was consistent

with section 116 of the CONSTITUTION. I would

not, for my part, be prepared to find, on an application such as the present, that it was not arguable either that the provisions of

section 26 relating to declaration by proclamation
of a religious body as "a recognized denomination
for the purposes of this Act" were inconsistent
with the injunction of section 116 against "any law

for establishing any religion" or that the

requirement of section 29(a) that an applicant

for registration under Division 1 of Part IV to
be a minister of religion of "a recognized denomination"

contravened the direction of section 116 that "no

religious test shall be required as a qualification

for any office or public trust under the

Commonwealth.

Obviously, however, the process sought in

the present case cannot issue on the present state
of the documentation and the present application
must be refused at least at this stage. In the

light of what has been said above, however, my

conclusion to that effect should not be construed
as precluding Mr Nelson from seeking to initiate

proceedings in compliance with the requirements

of the Rules.

Some of the comments made by Mr Nelson in the

documents which are before me make it desirable that

I point out that in insisting on observance of the

rules in a case such as the present the Court

is doing no more than insisting upon observance

of requirements which are necessary for the

orderly conduct of litigation and for the

protection of other parties to proceedings.

I have considered whether the appropriate

course to adopt is to adjourn, rather than dismiss,

the present summons. It seems to me, however,

that, in view of the extent of the insufficiency of the present documentation, the preferable course is

to dismiss the summons before me. If Mr Nelson

desires to file new documentation to identify and

support the relief which he seeks in the present
proceedings, it will then be open to him to apply

again for leave pursuant to the order made by

Justice Wilson. On the other hand, if Mr Nelson

seeks to institute completely independent

proceedings seeking, for example, declaratory

PlT2/5/MB	11	24/10/88
Nelson

relief, it will be a matter for the Registrar

to decide whether, in the context of these

reasons for judgment, the matter should be

referred to a Justice pursuant to Order 58

rule 4(3).

Mr Nelson, a copy of these reasons will

be available to you in writing. When you get

them, read them carefully and then work out

what, if anything, you wish to do in relation

to the matter. As you have no doubt followed

as I have delivered them, what I have said is

that it does not appear to me that if you wish

to attack section 26 or section 29(a) of the

MARRIAGE ACT that your case is hopeless or

vexatious or frivolous or whatever else, but

that if you wish to bring such an action, you

have to do it in accordance with the rules.

Now, that may be something you need advice

on but what you do is a matter for you. In

terms of obtaining a copy of my reasons, I think
they are available free of charge which means you

just have to ask for them and you will get them.

Also, if you want to obtain a copy of the

transcript of what has been said in the course

of the proceedings that should be available to

you. If that is not available free of charge, I

direct it to be made available to you.

MR NELSON:	Thank you, Your Honour.
HIS HONOUR:	I will now adjourn.

AT 12.08 PM THE MATTER WAS ADJOURNED SINE DIE

PlT2/6/MB	12	24/10/88
Nelson