Thorpe v Commonwealth (No 3)

In *Thorpe v Commonwealth (No 3)*, the plaintiff, Mr. Thorpe, sought declarations against the Commonwealth of Australia. The core of the dispute concerned whether the Commonwealth owed a fiduciary obligation to Aboriginal peoples as the original inhabitants of the land, arising from alleged historical wrongs including invasion and genocide. Specifically, Mr. Thorpe sought declarations that this obligation extended to requiring the Commonwealth to petition the United Nations General Assembly to obtain an Advisory Opinion from the International Court of Justice regarding the separate rights and legal status of Aboriginal peoples, including their territorial sovereignty, and that the Commonwealth was obliged to negotiate with him concerning this request.

The High Court, constituted by Kirby J, was required to determine several significant legal issues. These included whether the Commonwealth owed a fiduciary duty to Aboriginal peoples, whether such a duty, if it existed, extended to the specific relief sought concerning the United Nations and the International Court of Justice, and whether the declarations sought were justiciable. Furthermore, the Court had to consider its own jurisdiction under sections 75 and 76 of the Constitution, whether the proceedings constituted a "matter" within that jurisdiction, whether there was a reasonable cause of action disclosed, whether the plaintiff had the necessary standing to bring the claim, and whether the action constituted an abuse of process.

Kirby J reasoned that the claims advanced by the plaintiff did not fall within the limited jurisdiction conferred upon the High Court by the Constitution. His Honour found that the asserted fiduciary obligation, and the consequential demands for the Commonwealth to engage in international diplomacy and negotiation concerning an Advisory Opinion from the International Court of Justice, were not matters that could be adjudicated by the Court. The claims were considered non-justiciable, meaning they were not capable of being resolved by a court of law. Consequently, the Court lacked jurisdiction to entertain the plaintiff's claims.

Accordingly, the High Court ordered that the writ and statement of claim be set aside for want of jurisdiction. The applications for praecipes for the issue of subpoenas were also dismissed, and the plaintiff was ordered to pay the defendant's costs.