Wadjularbinna Nulyarimma - Application for Expedition C8/1998 [1998] HCATrans 257 (2 July 1998)

IN THE HIGH COURT OF AUSTRALIA

Registry No C8 of 1998

In the matter of -

An application for leave to appeal by WADJULARBINNA NULYARIMMA against the refusal of leave to issue a proceeding

Application for expedition

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 2 JULY 1998, AT 2.15 PM

Copyright in the High Court of Australia

MR L. J. LINDON: I appear for the applicant, your Honour.

HIS HONOUR: I understand that application is misdescribed, Mr Lindon. I do not have jurisdiction to grant leave to appeal. This, I understand, to be an application for an expedited hearing of an application for leave to appeal.

MR LINDON: That is right, and the summons is in that matter, sir.

HIS HONOUR: Yes, thank you.

MR LINDON: And if I just pass up a copy of Wadjular's affidavit and a copy numbered of the other affidavits I would be seeking to tender before you, sir. I have just photocopied them and numbered them for convenience. If I might just take you to that material, sir, you will see that the first document is the applicant's affidavit. She exhibits a copy of the application book. Has your Honour had a chance to read these documents?

HIS HONOUR: Yes.

MR LINDON: Right. That exhibits a letter to the Registrar last Friday and a copy of the application book in pretty near ready-to-go form. The other affidavits, if I could take you to those. I will just take you through them. At page 1 of that cluster of affidavits is a notice of motion from Pauline Gordon of Bunjalung People, and at page 4 of that cluster appears her actual affidavit. She had to go to a funeral yesterday afternoon so, you can see, sir, it was sworn by David Kapeen. David Kapeen states in paragraph 2 of his affidavit on page 2 that he was authorised to sign the affidavit and Stephen Schnierer was authorised to sign a notice of motion.

HIS HONOUR: Mr Lindon, these proceedings have not yet been commenced but, as I understand the substance of the proceedings, they are an attempt to prevent the progress of some pending legislation before the Commonwealth Parliament.

MR LINDON: That may be the effect. The actual phrasing of the restraining order is that the defendants be restrained from any further act in relation to that.

HIS HONOUR: I understand that. Now, there are two logical possibilities. One is that the legislation when enacted will be invalid, in which case its validity can be determined in properly constituted legislation.

MR LINDON: Yes.

HIS HONOUR: The other is that the legislation when enacted will be valid. In that event, what would be the business of this Court intervening to prevent its enactment?

MR LINDON: Quite, sir. That is the issue. What we say is that the power of parliaments to debate matters and to pass legislation is unfettered and the Constitution makes that clear. The only fetter we say that is outside the Constitution is that, as Justice Gaudron said in Kruger's Case, in relation to section 122 of the NT Ordinance, she said:

Section 122 does not authorise the passing of legislation contrary to the Genocide Convention.

HIS HONOUR: But if the legislation is invalid, it will be in due course held to be invalid.

MR LINDON: That may be so, but what we are saying with genocide is that because there is no doctrine of immunity, or doctrine of Act of State in the Statute of Limitations, that one looks at Mr Howard and Mr Fischer in this case not as Members of Parliament passing an Act but as individuals committing an act of genocide. That is the allegation. If one accepts that it falls within the common law definition of acts of genocide, then it is quite clear from the Genocide Convention, which is the schedule to the Act, sir, that it is no defence to a charge of genocide, there is no immunity basically, whether you are a constitutionally responsible ruler, is the term they use, or a public official. So my point here is that we look at Mr Howard and Mr Fischer as individuals doing acts which fall within the term "punishable offences" in the Genocide Convention.

HIS HONOUR: But it is not for me to form a view about the merits of your proceedings. So far the view has apparently been taken that they are frivolous and vexatious, but I am not concerned - - -

MR LINDON: Not frivolous; just vexatious.

HIS HONOUR: I am not concerned with whether that view is right or wrong. My sole concern is whether this matter should be put to the head of the queue.

MR LINDON: That is right. I was just answering your point that - - -

HIS HONOUR: If there is a possibility of challenging the validity of the legislation in due course, why should this matter not take its turn in the ordinary Court list.

MR LINDON: Because - let me just take an example. Let us assume Mr Howard and Mr Fischer are heads of private companies and they are doing acts which fall within the definition of "acts of genocide". To take a very black and white case, they are going out and removing children or sterilising women. They are classic - they are specified in Article II of the Convention as acts of genocide. Now, ordinary private individuals could be restrained by injunction, in my submission, under the Convention's jurisdiction to prevent acts of genocide. If they were heads of companies doing that, they could be restrained from going out and removing children or sterilising women or killing people or causing serious physical or mental harm.

HIS HONOUR: Yes, but you say the alleged act of genocide is supporting an Act of Parliament.

MR LINDON: Not supporting an Act of Parliament, we say two things: we say the Act of Parliament itself, the actual legislation, is itself an act of genocide. But what we also refer to - and which is where we come to our causing serious harm connection - we say that this whole process from December of 1996 when Mr Howard and Mr Fischer launched their 10-point plan after the Wik decision came down, I think it was January 1997 at Longreach, we say that the past 18 months the pain and suffering that Aboriginal people have been exposed to - and I will take you to the affidavits where that is alleged, sir - is such that serious mental harm within the definition in the Genocide Convention Article II(b) is established, and if that is so, if we can establish serious mental harm because of this whole process - to take an example, using words like "extinguishment" which is very close to extermination, and for Aboriginal people to hear daily the word "extinguishment" is more than stressful, particularly the ones that are clearly victims of genocide, like this applicant is, who was removed as a child and is therefor actually a victim of an act of genocide herself.

HIS HONOUR: If this serious harm has been suffered since 1996, why did you wait until May 1998 to commence the proceedings?

MR LINDON: Because it has been a growing process, sir. You will be aware that last December it seemed to have ended. There was a great deal of stress and concern and trauma in the Aboriginal community as they felt that, once again, their rights were to be diminished; the rights that they had struggled so hard to have recognised, and it seemed to end in December of last year. The political process seemed to have worked out that the Bill had stopped, this onslaught on Aboriginal rights and culture had ceased. It was only when the applicant, for example, became aware some 21/2 weeks ago, I think, on Friday a fortnight ago, that the Bill was to come back before Parliament and that this whole trauma was to be reopened once again, that she decided to act.

Her view, as stated in her affidavit, and supported by others, sir, including - well, I will come to the people who have put in affidavits - is that the situation with Aboriginal people now has been getting worse and is now in crisis. Each daily step in this process has caused more and more trauma to more and more Aboriginal people so that this serious mental harm allegation is made out.

Could I just take you through the affidavits, sir? It might well assist you in the application.

HIS HONOUR: Yes.

MR LINDON: We have dealt with one of Pauline Gordon from the Bunjalung and you will see that on page 4 she states that:

1. I am on the Board of Bunjalung Elders -

and in paragraph 2 she makes clear that she knows what the action is about. In paragraph 4 she makes clear her attention to appear and make submissions at the Full Court hearing.

Page 5, the next affidavit, is from Michael John Anderson from the Gumilaroi people. Once again he testifies that he has read the proceedings and that he agrees with the facts as set out which supports the allegations of fact made in the affidavit and statement of claim of Wadjula and he states that he is seeking leave to appear before you to present submissions, namely this, saying that there should be an urgent Full Court hearing.

The next affidavit begins at page 7. There is a notice of motion from the Ngarrandheri people of the Coorong in South Australia. The affidavit is from Mr Tom Trevorrow who is the designated elder in this situation. You will see at page 10 that he goes into some detail - perhaps if your Honour would read this affidavit with me. This, in my submission, sets out the kind of influences that have led to a situation where every further attack on Aboriginal rights of this kind is causing serious mental harm to people. You will see that in paragraph 5 he says that:

The terra nullius doctrine was genocidal - when it is official policy that Aborigines don't "exist" then there is obviously an undeniably validation of acts of genocide ("if they do not legally exist, then we can destroy.....them -

And he goes on to say, paragraph 6, that:

The continued official denial for generations of our very existence has caused us serious mental harm and made us particularly vulnerable to further serious mental harm.

Then in paragraph 7 he makes clear that:

even after 3 June 1992 -

that is the date of the Mabo decision, your Honour -

there has been continuing official denial of our law, our religion, our culture, our identity, and our sovereignty as a people. And apart from limited rights to limited parts of our country, there has been continuing official denial of our land.

8. These continuing official denials have resulted, quite foreseeably, in conditions of life calculated to bring about our destruction -

in whole or in part. Just pausing there, your Honour, the exegesis to the Genocide Convention on the definition of "intention to destroy" seems to suggest, according to the Laws of Australia annotation, that the mere fact that there are foreseeable consequences that may or are likely to occur is sufficient. I can hand up, your Honour, just an extract from the Laws of Australia. It is the volume A for Aborigines, Chapter Four, Existing Obligations, and I have marked the particular passages in paragraph 14 that I wanted to refer your Honour to.

HIS HONOUR: Thank you.

MR LINDON: I do not know if your Honour has a copy of the Genocide Convention Act before you. I will pass up a print-out from the Austlii web site.

HIS HONOUR: Thank you. Yes.

MR LINDON: Perhaps, just pausing here, you will see in the Act before you that there is a schedule to the Act and if I could just take you to the schedule which is the last couple of pages. It starts at Article I. It goes on to Article II which sets out the various acts of genocide, (a), (b), (c), (d) and (e); removal of children, sterilisation, conditions of life. Article III deals with the related offences of attempt, complicity, conspiracy and direct incitement to commit genocide. Article IV is the one that says that it is no defence to a prosecution for genocide that you are constitutionally responsible ruler or a public official and that you are as liable as private individuals.

We rely on that, sir, to say that this is the one exception that proves the rule of parliamentary democracy, that is to say Parliament's power is unfettered except for the limitation imposed by customary international law now, since Polyukhovich's Case, that the Parliament can do any act, can pass any Act and debate any Act it wants to do, as long as it does not commit acts of genocide because acts of genocide are not protected, there is no doctrine of Act of State, there is no public immunity for officials or for the State committing them. That is made clear in that Convention before you.

The question, of course, there is what is the status of the law, in common law, of that Convention and whether there is any inconsistent statutes, whether the Constitution itself is inconsistent. But, on the face of it, it is arguable that the statement of claim sets out the material allegations of law and fact in this matter.

Can I just finish reading with you, sir, Mr Trevorrow's affidavit, or shall I skip through and summarise what other affidavits there are before you?

HIS HONOUR: You take your own course.

MR LINDON: Right. If I can just finish Mr Trevorrow's affidavit. At paragraph 9 he states that:

These continuing official denials have also resulted in serious mental harm to our people -- the piling of injustice upon injustice.....combined with the results of past acts of genocide and continuing denial.....has resulted in serious mental harm.

10. The destructive conditions of life and the serious mental harm -

are contrary to the Genocide Convention. Paragraph 11 he refers to the removal of Aboriginal children, the Stolen Children Report, which your Honour would be aware of, Sir Ronald Wilson's, in which, as your Honour is aware, Sir Ronald was quite clear in that report that the removal of children was an act of genocide, whether for the best of intentions or not, because, of course, the foreseeable consequences were that it would cause serious mental harm and conditions of life. Paragraph 12 he says:

Any one of the different types of genocide would be sufficient o prosecute the responsible individuals..... Australia has committed every type of genocide within the legal definition-- including the sterilization of Aboriginal women, contrary to Art II(e) of the Genocide Convention. How much longer can any acts of genocide be tolerated and validated by Australian governments? What will it take to stop the genocide now and prevent it ever happening again?

In paragraph 13 he testifies:

Conditions of Aboriginal people are getting worse and there is a growing sense of a final crisis that could see us and our land, law, religion, culture and identity - which are all interconnected - finally overwhelmed and destroyed.

In paragraph 14 he talks about the beginning of this onslaught 18 months ago and the immense and sustained pressure since the "ten point plan" attempted to further diminish our rights. Paragraph 15 he talks of:

The fact that the leaders of the two political parties were and are also in control of the government - and hence have all the forces and resources to enforce their laws - has added to the pressure and sense of powerlessness.

The very fact that these people doing it are not just leaders of political parties but actually control the government adds to that sense of powerlessness which affects one's mental and physical state. Finally, in paragraph 16, he says, and this may answer your Honour's point a bit, that:

After the damaging events last December when the Native Title Amendment Bill was narrowly not passed, Aboriginal people have been reliving those damaging events since the Bill was brought back to Parliament last Monday. This is intolerably and unbearably painful and the despair, panic and hopelessness over what is happening here is widespread among Aboriginal people. And if the Bill is passed -- because of the ferocious pressures on Senator Harradine-- then the finality of the destruction will be complete. Mr Howard and Mr Fischer will have their law and they have the full power of government to enforce it. The nightmarish anxieties and dread about our future now seem about to engulf us utterly. In the circumstances, this is serious mental harm.

He then goes on to say in paragraph 17 that:

Many of the acts of genocide occur and have occurred because of racist behaviour by white people.

18. Many white people are still in denial about past acts of genocide-they don't recognise or don't care -

Then he testifies he has read the documents and he supports the summons and he summons the appeal to the Full Court.

The next affidavit, sir, page 13, is by the Most Reverend Dr Peter Carnley, AO, the Archbishop of Perth, the Anglican Diocese in Perth. At page 14 he testifies that:

1. I am a member of Australians for Reconciliation.....

.....

3. I have read Wadjularbinna Nulyarimma's writ, statement of claim, summons and supporting affidavit -

and the summons in this matter. Paragraph 4:

I am seeking leave to intervene in these proceedings.....I think it is very important that the powers of Parliament be clarified as a matter of urgency in the face of the genocidal claims being made by Wadjularbinna.

5. I would request that the Justice hold an oral hearing as a matter of urgency to determine whether leave to issue the summons will be granted. I believe it is important actually to hear from the applicant in person. After all, if the application to issue the writ is rejected, then the defendants will never have to answer to these very serious and racially sensitive claims of genocide which will have profound consequences for law and religion in this country. It is important that such issues be resolved by the competent authority.

In this case, obviously, the Court. At page 16 begins an affidavit by Father Frank Fletcher. He has filed a notice of motion at page 16 to intervene in support. At page 17, he confirms, in paragraph 3:

I have had daily contact with Aboriginal people -

in his inner city Sydney mission -

involving social and welfare issues as well as religious and pastoral care.

He confirms, in paragraph 4:

Aboriginal people are having inflicted upon them destructive conditions of life imposed upon them.

In paragraph 6 he says:

I believe there is a real crisis of the spirit of Aboriginal people and a sense that this is the end of all their hopes for a self-determining future. I have real concerns at the effect of this current onslaught on the psychological and physical well-being of Aboriginal people.

In paragraph 5 he says that:

In many way the Aboriginal people I work with in the inner city are suffering more because of the cumulative effects of removal from their land and the attempted destruction of their law and culture over generations. They are extremely vulnerable to the utterly hopeless despairing feelings stirred almost daily over the past 18 months with all the thoughtlessly painful talk of "extinguishment" (traumatically close to "extermination").

HIS HONOUR: But all this seems to demonstrate that there is nothing recent about the conduct on the part of the defendants that you seek to restrain.

MR LINDON: With respect, sir, the affidavit that I just read out, Mr Trevorrow's, specifically says, at paragraph - - -

HIS HONOUR: They have been trying to do this for years, according to you.

MR LINDON: Sir, just because - the Nazis have been carrying out their particular campaign for - - -

HIS HONOUR: No, it affects a claim for urgency, does it not?

MR LINDON: It does.

HIS HONOUR: If you have stood by for years and not taken these proceedings and now, having commenced the proceedings recently, you say the Court should put the matter to the head of the queue.

MR LINDON: At the risk of repeating my answer to your Honour, when you asked me that before I did explain that the matter seemed to have been resolved last December, so if we can start from December which is some five months ago, or six months, that is when the matter seemed to have been resolved. The Bill had not been passed, the Bill had been resoundly defeated. There seemed to be a victory for common sense and decency and humanity. That is from the Aboriginal point of view. It was not, as I say, until the matter was - at page 11 of these affidavits, paragraph 16, that paragraph of Mr Trevorrow, he says exactly that. He says:

After the damaging events last December when the Native Title Amendment Bill was narrowly not passed.

And he said but:

Aboriginal people have been reliving those damaging events since the Bill was brought back -

and I would submit, sir, that the applicant is a perfect example of why now, because she felt that things had come to such a situation where it was just - you know, she had to speak out. There seemed to be no rational end to the suffering of Aboriginal people in this regard and she, as an elder and a leader of her people, was determined to invoke the aid of the Court to prevent any more acts of genocide causing serious mental harm to her people, the Gungil ....., to the people of her Land Council which include six other mobs, including the Waanyi, and for Aboriginal people generally and these affidavits show, from the Aboriginal people, that they support her claim of fact that serious mental harm is occurring, her claims for urgency.

After all, sir, they are the victims. They are the ones that are testifying as to their mental state. They are saying that a crisis has been reached and they are saying - so that unless one gives no weight to the voices of the alleged victims and, as I say, corroborated, sir, by the material I am coming to. So far I would say it has been corroborated by several different Aboriginal people, sufficient to show a cross-section, and I am now demonstrating it is corroborated by people in the white community who work closely with Aboriginal people and are aware, on a daily basis, of their struggles, much more so than you or I, your Honour.

For example, if I can take the next affidavit, it is at page 19, the affidavit of Anne Marie - - -

HIS HONOUR: Yes, I have read those affidavits now, thank you.

MR LINDON: Right, sir, and you have also read the affidavit of Michael Kidd, page 21?

HIS HONOUR: Yes.

MR LINDON: What I will read out is a very important affidavit, sir, the final one at page 25, is that from a parliamentarian, Senator Bob Brown. You will see, the first two paragraphs, where he has visited her country and got an understanding of the spiritual attachments and that she is entitled to have those attachments. He says, "As a Member of Parliament" - and he quotes the words of Justice Gaudron. He believes that the Constitution - this is paragraph 3 at page 25, sir, "does not confer power to pass laws authorising acts of genocide"

This is exactly what we say is happening here, is section 51 perhaps is the source of the power as opposed to section 122 which is the Northern Territory Ordinance but, clearly, if Justice Gaudron's words are to be applied then and if - in her opinion, sir, in Kruger, which was a genocide case, the Constitution "does not confer power to pass laws authorising acts of genocide" and the reasons that she says that, sir, she goes on to explain that there are some things so fundamentally abhorrent to the common law that - I will just give you the exact passage, sir. This is from the ALJR report, 71 ALJR 1041, column one, paragraph E. I will pass this up, sir. Sorry, that is the quote from Justice Dawson. Yes, it is page 1037 of the report, column two, halfway down. It says:

The acts encompassed in that definition -

that is the definition of "genocide" -

are so fundamentally abhorrent to the principles of the common law that, on the approach which I favour, it is impossible to construe the general words of s 122 as extending to -

I have marked the passage.

HIS HONOUR: Thank you.

MR LINDON: And, just while it is there, sir, on the next page there is a passage I have marked in which Justice Gaudron points out that the Constitution itself was discriminatory and excluded women and Aborigines, and that is a point repeated by Justice Dawson in the same case. I can take you to the passage once again where Justice Dawson points out that the Constitution itself "excluded most women and many Aboriginals". That is the words of the Judge.

Also, sir, at page 1036, Justice Gaudron quotes the various acts of genocide:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm -

et cetera, and then goes on to say - this is column one at page 1036:

The notion of genocide embodied in the definition in Art II of the Genocide convention is so fundamentally repugnant to basic human rights acknowledged by the common law that, by reason of well settled principles of statutory interpretation, an intention to authorise acts falling within that definition needs to be clear beyond doubt before a legislative provision can be construed as having that effect.

And she, at the footnote 240, she quotes all the cases including Coco v The Queen.

Now, my point here, sir, is that this Act is clear and very clear in its intention to diminish rights. It is based on the 10-point plan and both of the putative defendants, Mr Fischer and Mr Howard, stated last night on television, each in separate interviews, that they have preserved the integrity of the 10-point plan. I would have thought that was almost a fact one could take just judicial notice of because of the degree of public interest in the controversy, the fact that the alleged defendant, or putative defendants were still repeating unashamedly their intention to diminish the rights of Aboriginal people, and rights that affect their culture, religion, law and life.

HIS HONOUR: Could you just remind me when was the proposed legislation in response to the Wik decision first mooted, an approximate date?

MR LINDON: Yes, I know. There was a little box in one of the papers this morning which - I think it was The Herald - sets out a little timetable which, although it is completely unjudicial - yes, there is a little box on the side, sir, which just tracks the history of the matter. It says, "December 1996, High Court Wik judgment finds native title coexists. February 1997, National Party demands extinguishment of native title. Howard promises solution by Easter. April: Cabinet agrees to a 10-point plan." That was just after Easter - "which Aborigines called, at the time, virtual extinguishment."

HIS HONOUR: That is April 1997?

MR LINDON: Yes. And then as you will remember what happened last year in May, Mr Howard promised he would not back down, and from June to November there was draft legislation released; there was advice from the Law Reform Commission. It was racially discriminatory. It was passed by the House of Reps but in December it was rejected by the Senate. As you know, this year, there has been various noises made about it. For example, in March, Mr Howard said he would not compromise and in April Mr Harradine said he would not compromise and danced on the laws of Parliament House with Gladys Tybingoompa, a Wik elder, and in May, your Honour, Mr Harradine was signalling he was going to hold further talks and Mr Howard said, no.

Perhaps the crystallising factor in all this, it could not have been anticipated by anyone and may well answer your point, is that in June there was an election in Queensland which had a surprising result for a new party, the One Nation Party, whose leader's views on race and a denial of the genocide are presumably in the public domain, your Honour. It has been suggested by many commentators that the reason why the Bill was brought back at this time in this way was not uncoincidental with the recent election.

Now, those are matters beyond the applicant's control but the importance of the One Nation Party, sir, is that in terms of serious mental harm, you have had this Wik Bill that dropped off in December and has been muttered about but then suddenly in June you have had a demonstration that there are many Australians who would appear to favour the views propounded by Miss Hanson. In the applicant's submission, sir, some of those views of Miss Hanson fall within the prohibition of the Genocide Convention on Direct and Public Excitement to Genocide because if the Court accepts the point of view being put forward here that the denial of Aborigines' religion, culture, tradition and sovereignty is actually a denial of identity and therefore leads to serious mental harm and conditions of life, then it may well be that Miss Hanson could be restrained by injunction from such comments which either deny the Aboriginal holocaust or deny the rights of Aborigines as indigenous people here long prior to any invasion by Europeans.

HIS HONOUR: Well now, are you in a position to state in a summary form the grounds of your application?

MR LINDON: Your Honour does not want me to take you through the last page of Mr Brown's affidavit.

HIS HONOUR: I have read that.

MR LINDON: You have read that. Well, I think his quote there, sir, from Justice Kirby in the Thorpe Case probably summarises the reason why discretion should be balanced in favour of the applicant.

In line with Archbishop Carnley's submissions to the Court, sir, that you ought hear personally from the applicant, I would make an application that you hear brief evidence from - - -

HIS HONOUR: No, no, you are here to put your application on behalf of your client, and do so.

MR LINDON: I certainly am. I am going to do that, sir, but I put that for two reasons: one is the point raised by Bishop Carnley that if she is to be refused an early hearing, then she has not really had a chance to have her say on that.

HIS HONOUR: You have had your opportunity to put your evidence in affidavit form. Your opportunity now is to put your argument.

MR LINDON: Thank you, sir. If I may just complete this point: the second point I make in relation to oral testimony from the applicant is that Aboriginal culture is an oral culture and that things are often expressed in an oral way, including physical posture and all sorts of things like that, that in an Aboriginal way a person would be expected to be able to speak themselves briefly on their behalf to state facts from their heart and that they wanted the people to hear. So that I would say out of respect, which, of course, this Court is not racially discriminatory and, in fact, it can recognise differences - but out of respect for the differences of people whose culture goes back way beyond ours, sir, that it would be appropriate as she is an elder of her people, for her to speak directly to the Justice of the Commonwealth of Australia to explain to him directly why she thinks it is urgent.

Now, it may be, sir, that this - and we are not talking about a great period of time but just, I would have thought, out of respect for her and the problems that she sees in relation to her people and the fact that we are talking about perhaps the most serious allegation that can be made, the most serious offence known to civilised people, which is genocide, that she ought to be heard.

HIS HONOUR: There is no issue of respect or lack of respect that arises in this matter, Mr Lindon. There is no lack of respect involved at all. It is a matter for you to explain why the application for leave to appeal that you seek should be taken out of its order in the list. That is all that is to be dealt with today.

MR LINDON: Right.

HIS HONOUR: Now, you have put the affidavit evidence on which you want to rely and I have invited you to state in a summary form the arguments you want to make.

MR LINDON: Yes. What I am saying the arguments clearly appear from the affidavit material and from the applicant's two affidavits, the one on 22 June and the one on 29 June. It really boils down to two things, your Honour. If your Honour takes seriously, for the purpose of this hearing, that there is an arguable case or even a stronger than arguable case that acts of genocide are occurring, that they are not past acts but they are present and continuing acts of genocide as legally defined, and if one accepts that the act of genocide in particular that we are talking about is causing serious mental harm - - -

HIS HONOUR: The act of genocide being bringing forward legislation.

MR LINDON: No, sir, that is what you have been trying to put to me and I have been at pains to state that it is not just the actual wording of the Act, of the Bill, which is apparently to go to the Reps tomorrow, it is the actual process since January and February of last year, of talking up a 10-point plan, making quite clear that you were going to go ahead with this 10-point plan to diminish rights. It must be given some credence because it is not just a political party like One Nation saying it. It is people who have - the leaders of government. It is the Prime Minister and Deputy Prime Minister, the leader of the Liberal and National Party respectively who are saying this, right?

If one takes seriously the allegation - and there is supporting evidence that it could come from specialists in the mental health of indigenous people because, clearly, that would be adduced at the injunction application if it was disputed. If one takes seriously that, sir, then there is actually a crisis and this crisis only erupted on Friday, 19 June when it became public - - -

HIS HONOUR: The injunctive relief that you are seeking is relief to restrain the defendants from further acts intended to secure the enactment of the Native Title Act Amendment Bill.

MR LINDON: Yes, sir.

HIS HONOUR: In other words, you are seeking from this Court an injunction restraining members of Parliament from taking steps to enact legislation.

MR LINDON: Taking genocidal - - -

HIS HONOUR: Yes, but that is the act.

MR LINDON: Yes, and we say that they are acts in relation to the Native Title Bill, whether it is called the 10-point plan or Amendment Bill 1 or Amendment Bill 2, it does not matter. The whole process of pushing this through and publicly, from a government position, seeking to diminish rights of Aboriginal people without their consent, without their true informed consent, without duress and undue influence. We are saying that those actions are culminating in this thing of actually being passed where it becomes law and therefore becomes much more forceful to Aboriginal people.

Whether or not the Act actually does that, sir, it is their state of mind, it is their anticipation. It is the revival of the trauma they have already been through that is the crisis. Now, who is to determine whether it is urgent or not? I suppose the Court. What is the criteria? Well, how important an irreparable loss is going to occur; how serious is the damage? There are affidavits from Aboriginal people around the country saying there is a crisis. It is getting worse. This is causing us damage. In my submission, that has to be respected and given weight for the purposes of determining whether there should be an early hearing, particularly because all this appeal is about is whether or not a person can issue process in the High Court of Australia alleging genocide - - -

HIS HONOUR: The appeal is about whether your process is vexatious.

MR LINDON: That is right. That is what I am saying, so presumably it is vexatious because it mentions the word "genocide". I mean, the documents are in the proper form. In my submission, the cause of action is well known to the law. The relief is clearly within the jurisdiction of the Court, and I claim the jurisdiction in the statement of claim including the jurisdiction for declaratory orders and the universal jurisdiction to stop and prevent genocide as expounded by Justices Brennan and Toohey, in Polyukhovich. Justice Toohey, in particular, said that at whatever time the definition of "genocide" in the Convention became part of the customary international law, the common law of Australia, it was certainly so by 1990 when that case was decided, and I rely on the fact that Mabo came down two years later.

So, the question of urgency has to consider irreparable damage and I would particular submit that in relation to mental harm some damage is irreparable. It is not really the same as a broken leg and it is hard for anyone to actually say, with any degree of certainty, that will not be irreparable damage. Where you have Aboriginal people who are very experienced at suffering genocide who have seen, in this applicant's case, members of her immediate family fall ill and die as a result of the conditions of life, but you have to rely on the applicant's contention that it is a crisis and it is a crisis on top of a crisis and that the whole way in which this has finally come to a head is causing absolute, you now, mental harm to Aboriginal people. It is literally driving Kooris crazy, the fact that their law, religion, culture and identity is being denied in this way.

Maybe, if this was the first time it ever happened, you could not make out a case of serious mental harm, but there is admitted past acts of genocide. They have been clearly admitted at the Redfern Speech by Prime Minister Keating in 1992 and I would say, successively, by the actions of government who impliedly admit that they have acted genocidaly in the past. The real question in this case, sir, is whether there is continuing acts of genocide as we speak. Is genocide something that just occurred a long time ago? Related to that question, sir, are the questions of the foundation of white law in Australia because Aboriginal people say if the genocide occurred then, when did it stop? If there was an invasion, if there was, you know, a war of invasion that we suffered, when did the war stop? Where is the treaty of peace showing that the war stopped? And they point to factors like that, and the denial of their sovereignty, and it is quite clear from all the cases, sir, that you cannot go into the question of sovereignty. Act of state is the brick wall you come up against with arguing about sovereignty. I think I have made that point, sir.

So the question of irreparable damage is very important. Can you actually get your mental health back - I mean, can you come back from this situation - and what they are alleging, sir, is a kind of critical mass of mental harm; it is not just one or two Aboriginal people, but because they are often in their own communities and where there are several, and then many, suffering mental harm as a result of this, it impacts on the whole community. So it is not just a case of looking at individuals. But if leaders of individual communities - and I would put to you that Pauline Gordon and Michael Anderson and Tom Trevorrow are, on their own affidavits, leaders of their community and they are testifying to this Court that there is a crisis, that serious mental harm is occurring and that it is important that the matter be resolved urgently.

In this case, the urgency could be - if I can look at the solution to the problem and I can show you how it could be a healing process and how it would actually seek to diminish the mental harm. What the applicant is faced with now is a situation where she is not even allowed to issue her process to attempt to get an injunction to stop this. Leaving aside your Honour's point about whether or not Parliament can be restrained in that way - and that is the debate - I say the genocide allows you to open the door, because is it not act of State, and you say, well, no, it is absolutely finite that Parliament's powers cannot be fettered in that way.

HIS HONOUR: No, I do not say that. It is not for me to form or express any view on the merits of this litigation.

MR LINDON: Sorry, you are right; I withdraw that, sir.

HIS HONOUR: I am dealing with an application for this matter to be taken out of its ordinary turn in the list.

MR LINDON: Yes. I am now turning, sir, to the fact that she is merely seeking to issue proceedings. It is not an appeal inter partes; it is an appeal - it is actually against a Court's decision not to issue proceedings. I have taken your Honour to that quote from Justice Kirby in Thorpe's Case where he says that in this period of readjustment, recognition of past injustices, the Court should really bend over backwards before it throws anything out that seems to - perhaps if I could just take you to that quote again. I do rely on that. He says this:

"Australian law at this time is in the process of a measure of re-adjustment, arising out of the appreciation, both by the parliaments and the courts of this country, of injustices which statute and common law earlier occasioned to Australia's indigenous peoples.

So that, pausing there, sir, he is admitting and saying it is well admitted that both statute and common law, the law of terra nullius presumably, have a lot to answer for in occasioning harm to Australia's indigenous people. He then goes on, and I rely on this in my argument:

In such circumstances, it is appropriate for a court, including this Court, to be cautious in ... terminating proceedings, including those brought by parties which, in the fullness of time, might, with evidence, elaboration and detailed argument, contribute to the process of readjustment".

So he is saying there exactly what I would say in relation to this, that the decision as to the vexatiousness of the applicant's documents was taken on the statement of claim and her affidavit in support of a summons for an injunction. There was no evidence put or heard, as there would be in a trial or in discovery of documents, from mental health experts, from international law experts, as to the exact state of the Genocide Convention in other countries and so on.

So in the fullness of time, sir, with elaboration and detailed argument, it might well be possible to convince a court that, in fact, there is an exception to the ordinary rule that you cannot attack an Act of Parliament until after it has been passed, and that is when it is genocidal or when it is attempted genocidal, complicity in genocide or conspiracy in genocide; if it falls within any of those preparatory related offences. In my submission, that is exactly what the situation is here.

Now, you might then say, well, why is it so urgent for the Full Court to determine that? Well, if the Full Court did determine that Justice Callinan's decision should be overturned and that the proceedings should be issued, and indeed, further, that an injunction should be granted, then that is the healing point I make because, in fact, that would bring an end to the conditions that are exacerbating the mental harm from bad to serious and, therefore, brings it within the Convention.

HIS HONOUR: Do I gather from what you say that, in addition to an urgent hearing of the application for special leave, you want to join with that an application for an interim injunction?

MR LINDON: Yes, sir. If I can take you to - that is pleaded - - -

HIS HONOUR: You do not need toi prove what you are saying is right. I just wanted to understand what your application is.

MR LINDON: Yes, that is actually said in the documents. The notice of appeal asks for that, an order in those terms.

HIS HONOUR: Thank you.

MR LINDON: I will just check with my client. I think those are my submissions.

Your Honour, I just ask you to consider carefully the affidavit material and give it due weight and that word "respect" again. I have been asked to point out that one of the things that has happened which has exacerbated the crisis, and answers your point about they have had months, why did they leave it until now, is that the reconciliation process had been in train and there was a reconciliation convention and there was an attempt by Sir Ronald Wilson and others to get white Australia to understand exactly what the true history of Australia was, and that that reconciliation process has also been seen to break down in the past few months.

So that you have had this 10-point plan seeking to diminish rights, and you have had the reconciliation process that was so optimistically embraced by so many grass roots Australians around the country, seeming to be cut adrift by the Government. So that at the same time as there was an onslaught on their rights, there has been this falling down of any sense of bridging between the two cultures and the two communities. So all that has really come to a head in the past few weeks. The final bursting of the river was this bringing back of the Bill. Many Aborigines would know their history and remember that reconciliation was the word used in Tasmania when Truganini and her people were virtually wiped out; one of the most extreme cases of genocide; much more extreme than the Jewish populations in Germany.

It is against that history, sir, of actual killing and wiping out of their people, and the applicant's own grandfather could remember running from police and people with guns, and that is passed on to people. So up in Queensland, that is within quite living memory. It is not quite as distant as it is down here in Sydney. One must take one's eggshell skull victims as one finds one.

HIS HONOUR: Thank you, Mr Lindon.

On 22 June 1998, the applicant presented a writ of summons, a statement of claim and associated documents to the Canberra Registry of the Court. The defendants named in the proceedings are the Prime Minister and the Deputy Prime Minister. The relief sought in the proceedings included an injunction to restrain them from engaging in "any further acts intended to secure the enactment of the Bill", the

Bill referred to being the Native Title Act Amendment Bill. An interim injunction to the same effect was also sought.

Order 58 rule 4(3) of the Rules of Court provides that where a:

writ, process or commission appears to a Registrar on its face to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall seek the direction of a Justice who may direct him to issue it or to refuse to issue it without the leave of a Justice first had and obtained by the party seeking to issue it.

Pursuant to that Rule, the Registrar sought the direction of Justice Hayne who directed the Registrar to refuse to issue the process without the leave of a Justice first had and obtained. On 25 June 1998, Justice Callinan considered an application for leave to issue the process. In a written judgment of that date his Honour refused to give such leave.

The plaintiff wishes to seek special leave to appeal against the decision of Justice Callinan. The application before me this afternoon is an application for an order that the hearing of the application for special leave to appeal against the decision of Justice Callinan be expedited; that is to say, taken out of its ordinary turn in the list, given priority and given an urgent hearing.

In relation to the urgency claimed, it is material to note that counsel for the applicant, in the course of his submissions, pointed out that the conduct of the defendants of which complaint is made has been going on since early 1997. It was going on for more than a year before the commencement of these present proceedings for which urgency is now claimed.

It is also material to note that the substance of the relief sought is aimed at preventing the enactment of legislation by the Commonwealth Parliament. If there is a challenge to the validity of that legislation in due course, it can be dealt with in properly constituted proceedings and resolved in the ordinary way. If the legislation is valid, it would be inappropriate for this Court to intervene to prevent Parliament from exercising its constitutional function of considering whether to enact such legislation.

It is unnecessary for me to form or express a view on the merits of the applicant's case or of the application for special leave to appeal from the decision of Justice Callinan. It suffices for present purposes to say that I am of the view that no sufficient reason has been shown why the matter, if it is to proceed, should not take its turn in the list. The application for expedition is refused.

Court will adjourn.

AT 3.07 PM THE MATTER WAS CONCLUDED