Thorpe v Cwealth of Aus

[1997] HCATrans 391

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M50 of 1997

B e t w e e n -

ROBERT ALAN THORPE

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

BRENNAN CJ

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 1997, AT 9.37 AM

Copyright in the High Court of Australia

BRENNAN CJ:   You are Mr Lindon?

MR L. LINDON:   Your Honour, I appear briefly on the notice of motion about the recording and broadcasting of proceedings.  It was filed yesterday by a Mr Ron Thorpe, Channel 31.  I do not have an instructing solicitor and I do not propose to take up too much of the Court’s time.  The affidavits are before you.  If your Honours are inclined to decline the motion, with some brief reasons, would perhaps assist. 

BRENNAN CJ:   It is not the Court’s practice to have its proceedings televised.  There does not seem to be any reason advanced for changing that practice.

MR LINDON:   The only two reasons are set out in the documents.  It is desired to send copies of this to Aboriginal communities around the country.  I think it is clear that - there are clear studies been done about the appreciation of spoken word as opposed to written, and if it can be sub-titled in their own language, for example, Arunta and Central Region and so on, then they will be able to access this public Court in a way that they cannot physically and they may be prevented by language and the written word as well.  Those are the submissions.

BRENNAN CJ:   Thank you, Mr Lindon.  The reasons advanced are not sufficient to justify the Court in departing from its usual practice, therefore, the motion is declined. 

MR R.A. THORPE:   Can I direct the Court to page 48 of the application book.

BRENNAN CJ:   You are Mr Thorpe?

MR THORPE:   Yes, I am.

BRENNAN CJ:   Yes, Mr Thorpe.

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:   Your Honour, I appear with MR P. ROBERTS for the Commonwealth.  (instructed by the Australian Government Solicitor) 

Your Honour, I should indicate that we have distributed submissions on the leave point, which the Court now has on its Bench.

BRENNAN CJ:   Yes.  Mr Thorpe has a copy of these, Mr Solicitor?

MR GRIFFITH:   Yes, he has, your Honour.

BRENNAN CJ:   I think we will look at this, Mr Thorpe, before we hear what you have to say. 

MR THORPE:   Your Honour, could I just press this point in relation to page 48 of my application book.  It is a notice that was placed on the record six months earlier and it is a notice of alleged complicity in premeditated criminal genocide.  This notice may point out the bias in the Court and may disqualify the Court.

BRENNAN CJ:   May disqualify the Court from hearing the application which you now wish to make to the Court?

MR THORPE:   It alleges complicity of the Court.

BRENNAN CJ:   Are you wishing to make an application to the Court or not, Mr Thorpe?

MR THORPE:   Just for the benefit of the Court, what you do say in this Court will be used as a reference in the Court of Justice.

BRENNAN CJ:   Whatever is said in this Court is available to the public in whatever way they think appropriate, subject to any other overriding laws, so there is no novelty in that; but we do need to know whether or not you are making an application to this Court.  Are you inviting this Court to exercise any jurisdiction?

MR THORPE:   In my statement of claim, your Honour, it is seeking a clarification on what the existence of the fiduciary obligation of Australia is to indigenous people, and see that it has a bearing on whether this goes ahead or not.

BRENNAN CJ:   Mr Thorpe, I think my question is a fairly simple one.  Are you asking this Court to do anything or not?

MR THORPE:   Basically, I am asking this Court whether it can, under the universal jurisdiction of the Genocide Convention, take us into the International Court of Justice, which has that power to do that, to clarify the issues involved here, the definition of the legal status of Aboriginal people and of non-Aboriginal people.

BRENNAN CJ:   What are you asking this Court to do, Mr Thorpe? 

MR THORPE: I am asking it to use their power under the Genocide Convention Act to take us into the International Court for a determination on the issue of fiduciary obligation, because this Court is complicit in the genocide, the premeditated genocide of Aboriginal people. I have a dilemma, your Honour, but - - -

BRENNAN CJ:   It is a dilemma only you can solve, I think, Mr Thorpe.  You have your choice:  either you ask this Court to exercise its jurisdiction to entertain some proceeding based upon the order made by Justice Kirby or you do not.  If you want us to entertain your application and to consider it, then we shall do so.  If, on the other hand, you do not wish us to do so, for whatever reason, then we shall not.  Mr Lindon, are you instructing?

MR LINDON:   Me, your Honour?

BRENNAN CJ:   Yes.

MR LINDON:   No, I am not instructing, your Honour, I am here as a legal practitioner assisting Mr Thorpe if it is requested, your Honour.  I believe lawyers have an obligation to assist Aboriginal people get their legal arguments heard in court.  If the Court does not want me to talk to Mr Thorpe or assist him in any way, that is a matter for the Court.

BRENNAN CJ:   No, it is a question of the function that is being performed by a legal practitioner and whether Mr Thorpe is acting on his own behalf or whether or not he is simply re-echoing whatever you may tell him to say.

MR LINDON:   That is true.  I see myself as partly my function is sort of backstopping him on legal technical arguments.  For example, your Honour has raised the point, “Are you making an application or not?”  Quite clearly, what Mr Thorpe is saying is he is making the application but he is making a preliminary point, if you like, about the Court’s complicity in genocide because of terra nullius and therefore the Court might consider whether it ought to disqualify itself.  Page 4 of the materials book, for example, lists the reasons why the Court might consider doing that.  There is nothing, logically, inconsistent, your Honour, between him coming to this Court and invoking its jurisdiction to direct the Commonwealth to go to the World Court and, at the same time, notifying the Court of its complicity in genocide.  It is up to the Court to disqualify itself in that, your Honour.

BRENNAN CJ:   Mr Lindon, what you are saying, in other words, is that you are offering Mr Thorpe whatever assistance he needs in legal matters, is that right?

MR LINDON:   Yes, your Honour.

BRENNAN CJ:   Yes, very well.  That is all right.  You can - - -

MR LINDON:   And to ensure he is not intimidated or bullied by the process.

BRENNAN CJ:   Mr Lindon, that is a comment which this Court does not accept from a legal practitioner.  You will withdraw it.

MR LINDON:   Withdraw the comment that I am not here - to make sure he is not intimidated or bullied, your Honour?

BRENNAN CJ:   Yes.

MR LINDON:   I will withdraw the comment, your Honour.

BRENNAN CJ:   Very well. 

MR THORPE:   Your Honour, when the High Court ruled on Mabo and removed the unutterable act of shame, terra nullius, it caused a lot of confusion and uncertainty, including myself.  The way that I see the situation is that the High Court pre-empted the natural process of law, or  overstepped its mark in terms of international standards when it assumed it had the jurisdiction to determine what the title of the indigenous people of this country was.  It is not my fault there is a lot of confusion and uncertainty about the processes in this country.  So I am really a little bit uncertain about what processes and who I should be approaching in terms of getting human rights justice for Aboriginal people.  It has been over 200 ,years our struggle, and the genocide is still here with today; there is continuing acts of genocide occurring in this country today with regards to indigenous people.  So I am here today trying to determine for myself whether this is the appropriate avenue to get to a place where we can have the issues of justice sorted out.

BRENNAN CJ:   I would take what you have just said as indicating that you are asking this Court to exercise its jurisdiction to consider the decision that was made by Justice Kirby.  Am I wrong in that?

MR THORPE:   Yes, that is right, your Honour, I am asking for that determination.

BRENNAN CJ:   All right.  Very well.  You can address that question.

MR THORPE:   Okay.  Your Honour, the issue is - we have had on the record for some time that - it is page 18 of the application book; it is a notice to produce documents.  I will just read it out:

You are required by the plaintiff to produce at a hearing of the interpartes summons a copy of the following document:

Any document or documents in the possession of the defendant evidencing the fully-informed consent of the original peoples of this land without duress, undue influence or misrepresentation as to their true legal rights to the jurisdiction of the defendant.

We have had a form of a convoluted answer from the defendant, your Honour, and it needs to be addressed.  Can we call for the production of that - if there is any of those documents available for them to now produce that document of consent?

BRENNAN CJ:   That is irrelevant to the application which I understand you to have made, namely, to ask this Court to consider the decision of Justice Kirby.

MR THORPE:   Can I refer you to page 110 of the application book, your Honour, you will see at ground 3:

At the hearing the plaintiff called upon the defendant, upon reasonable prior written notice, to either produce a proof-of-consent or admit that there was no such consent.  Upon the Commonwealth of Australia at the hearing both failing to produce the proof-of-consent and then formally admitting to the Justice that no such consent exists, the single Justice - especially an internationally-recognised expert on human right - ought to have given due weight to the absence of such consent as one of the key evidential indicia of present and continuing genocide by a national government.

This issue also applies to Justice Kirby’s judgment in respect to “no matter”.  The fact of the matter, there is no consent.  There is no consent to the basis of any institutions in this country to be valid or legal in light of the history of terra nullius and the fraudulent claim on which that was based.  All institutions, including the High Court, are premised on that illegal notion.  In my transcript, page 32 of the application book, I point that out, pointing out that Cook’s standing orders, his instructions from the Crown were to get consent to negotiations for - was instructed to get consent to negotiate for occupation of these lands.  He failed to do that, he lied, the act was illegal, Australia’s basic root title is an evil root title, your Honour.  The fact remains that no consent has been given by Aboriginal people, that I am aware of, at this present time, in regards to the occupation of non‑Aboriginal Australia. 

Like I said before, the High Court ruling on Mabo pre-empted the natural process of law, international law, by respecting customary law, and by removing terra nullius they disembowelled their terra nullius based law right over our lands.  The point I am trying to make is, there is still no consent.  The issue of land law settlement is still unsettled in this country;  the issue of sovereignty of Aboriginal people has not been addressed.  Can I take you to my first grounds of appeal, your Honour, page 109 of the application book:

1.  As the single Justice said, this Court has not determined the “still ... open question” of the defendant’s fiduciary obligation.....” adversely to” -

my claim.  There also seems to be a conflict of authorities in regards to the issue of genocide, hence the Kruger Case, the Mabo Case, and the Polyukhovich Case.  The contrast there, your Honour, is that Kruger and Mabo were Aboriginal people and Polyukhovich was a white person.  Polyukhovich’s Case drew a lot of - not support, but a whole process was set in place to address the issue of Polyukhovich in terms of the genocide.  That failed to happen in Kruger or Mabo, but still the issue of genocide was a matter in those two cases. 

Can I take you to 106 of the application book, your Honours.  In my notice of a constitutional matter I have asked the question:

1.  Does Australian law prohibit pre-meditated criminal genocide in some form?

2.  If yes, is the prohibition of such genocide not limited only to acts of mass murder or acts of extra-judicial execution?

3.  If yes, does such a prohibition of such genocide generally.....extend to the acts authoritatively defined by Articles II & III of the UN Genocide Convention 1948?

4.  If yes, does the prohibition apply to acts causing serious mental harm to the original peoples of the land committed with intent to destroy in whole or in part those groups?

5.  If yes, is it sufficient (in civil litigation to stop and prevent such prohibited acts, and especially in a constitutional matter) for the plaintiff to prove, on the balance of probabilities, “recklessness” by the Australian government to satisfy the requisite proof of the defendant’s genocidal intention to destroy in whole or in part the original peoples of the land?

6.  If yes, is it also sufficient to prove both “negligence” coupled with “bad faith” to satisfy the requisite proof of the defendant’s intent to destroy in causing such serious mental harm?

7.  Does anything express or implied in the Constitution Act of the Commonwealth of Australia, or in the law of Australia, prohibit an Australia court from making a finding of pre-meditated criminal genocide in civil litigation and especially in a constitutional case?

8.  Does anything express or implied in the Constitution Act of the Commonwealth of Australia, or in the law of Australia, authorise, allow, permit or otherwise validate acts of pre-meditated criminal genocide by the Australian government and the Commonwealth of Australia - such as causing serious mental harm to the original peoples of the land with intent to destroy in whole or in part?

I also just want to mention my last two grounds of appeal, 4 and 5 of page 110.  That points out the Court’s undoubted lawful power to command the initiation of these proceeding; that Justice Kirby ought to have recognised the continuing genocide of Aboriginal people.  Point 5 is, because of the admission and the obligation - the admission of the past acts of government in relationship to genocide, especially those alleging ongoing present and continuing acts of genocide by the executive.  That is referred to in the Genocide Convention, Article IV, and imminently the legislature. 

A specific hearing, written admissions and denials to each paragraph by Australia prior to any further hearing would both contribute to the process of readjustment over the past, complicity in the same genocide by Australia’s Parliaments and courts and clarify whether the particular executive conduct complained of went beyond the constitutional warrant, although the Commonwealth supported it by reference to the conduct of external affairs.

Your Honours, while we have been preparing this case we have found it difficult to determine who is actually the Head of State in this country.  Is it the Queen?  Is it the Governor-General?  Is it the High Court?  Is it the Prime Minister?  It is causing a lot - not just myself a lot of confusion, it is causing a lot of people confusion.  I think that is part of the debate that is going on at the moment, the issue of the republic, trying to determine, you know, exactly who is the Head of State.  In the writ that was presented to me it had the Queen’s name on it.  In the letterhead we have

got back from the Queen it had a different letterhead; it had the lion and the unicorn represented, whereas this one has got the kangaroo and the emu represented.  There is a lot of confusion, your Honour - I meant the Crown, sorry.

Your Honour, I would just like to finish up now and say that in light of the continuing acts of genocide I feel that this Court is compelled to take the Australian Government into court, at least to clarify what the legal status of Aboriginal people is and non-Aboriginal people is.  In light of the present negotiations going on in terms of land law settlement, we feel that we are in an unenviable position at this present time, an unfair position.  We believe that we at least have equal weightage in law in this country at least, and that is a major compromise for Aboriginal people, because we are the sovereign owners of this land.  Our law still applies; it has not been dealt with under Aboriginal or European laws at this stage.  As far as our creators of the law, we are still sound, your Honour.  Thank you.

BRENNAN CJ:   Thank you, Mr Thorpe.  We need not trouble you, Mr Solicitor.

Justice Kirby in this Court made an order, first, that the writ and statement of claim in the action be set aside for want of jurisdiction; secondly, that applications for praecipes for the issue of subpoenas be dismissed and, thirdly, that the plaintiff pay the defendant’s costs.  If the applicant is seeking leave to appeal from the decision of Justice Kirby, it is refused.  If the applicant is seeking to appeal against that decision, the appeal would be dismissed.  In either case, the reason is that the decision of Justice Kirby is correct. 

MR GRIFFITH:   I ask for costs, your Honour.

BRENNAN CJ:   What do you have to say to the Commonwealth’s application for costs, Mr Thorpe?

MR THORPE:   I could just say, your Honour, that it seems that the Commonwealth is still benefiting from the premeditated criminal genocide of Aboriginal people.  Thank you.

McHUGH J:   Are you really going to push this, Mr Solicitor?

MR GRIFFITH:   Your Honour, I just comply with my instructions and I have done that, your Honour.  Your Honour, I withdraw the application.

McHUGH J:   You withdraw it?

MR GRIFFITH:   Yes.

BRENNAN CJ:   Very well.  The application is withdrawn.

AT 10.00 AM THE MATTER WAS CONCLUDED