Thorpe, An application by

[2005] HCATrans 493

[2005] HCATrans 493

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M180 of 2004

In the matter of –

An application for leave to appeal by ROBERT ALAN THORPE against the refusal of leave to issue process

Application for leave to appeal

Publication of reasons and pronouncement of orders

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 AUGUST 2005, AT 9.44 AM

Copyright in the High Court of Australia

GLEESON CJ:   The applicant seeks leave to appeal from the order of Hayne J made on 7 October 2004 refusing leave to issue or file certain process being an affidavit and draft order nisi which the applicant sought to have directed to “Andy Becker, Commonwealth Electoral Commissioner” as first respondent and to the Commonwealth of Australia as second respondent.  His Honour delivered written reasons for that refusal of leave.           

The relief sought by the applicant consisted of writs of prohibition and mandamus in effect requiring the first respondent, prior to the general election on 9 October 2004, to inform voters and candidates of certain matters.  These matters included the following:

(a)      that the “Original Peoples of geographic Australia” did not give a free and informed consent to “the attempted occupation of Lands and purported usurpation of Laws by the Commonwealth of Australia”;

(b)      that the failure by the Commonwealth to obtain or seek such consent constituted genocide within the meaning of the Criminal Code Act 1995 (Cth);

(c)      that the International Criminal Court has jurisdiction to decide whether the Commonwealth of Australia can obtain and maintain its claimed territory and purported sovereignty without such consent; and

(d)      that the only role for the Commonwealth of Australia pending the obtainment of such consent is that of a caretaker government for the “true sovereigns, the Original Peoples of geographic Australia”.

The applicant submitted that the Commissioner’s decision not to make this information available was afflicted with jurisdictional error, as it disclosed a misunderstanding of the Commissioner’s discretion, constituted a fettering of that discretion, was in breach of inviolable limitations on the exercise of the Commissioner’s jurisdiction, was arrived at by reference to irrelevant factors or showed bias, both actual and perceived. 

Hayne J refused leave to file the applicant’s affidavit and draft order nisi on the basis that the relief sought was founded in allegations which challenge the Crown’s acquisition of sovereignty over the several parts of Australia.

We have reviewed the applicant’s submissions.  On the assumption that an appeal could lie, even with leave, there are no prospects of success in any appeal from the order of Hayne J.  Accordingly leave to appeal is refused.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing this application for leave.

AT 9.46 AM THE MATTER WAS CONCLUDED