Cloud v Commonwealth of Australia & Ors B78/2001 [2002] HCATrans 321 (26 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B78 of 2001

B e t w e e n -

MICHAEL CHARLES CLOUD

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE STATE OF QUEENSLAND

Second Respondent

THE STATE OF NEW SOUTH WALES

Third Respondent

Application for leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 2002, AT 9.33 AM

Copyright in the High Court of Australia

MR M.C. CLOUD appeared in person.

GLEESON CJ: Would you just come to speak in front of that microphone because people are taking a note of what you are saying.

MR CLOUD: Yes. Well, I am here because I have an appeal against the strike-out application from an earlier court. The judge ordered that my constitutional matter be struck off.

GLEESON CJ: Well, you are seeking leave to appeal against the decision of Justice Callinan?

MR CLOUD: Yes, seeking leave to appeal, that is right. My original leave to appeal was rejected - - -

GLEESON CJ: May I interrupt you to say this, Mr Cloud. There is a certificate from the Deputy Registrar of the Court saying that she holds a letter from the New South Wales Crown Solicitor, the solicitor for the third respondent, advising that the third respondent will submit to any order of the Court, save as to costs.

MR CLOUD: Yes.

GLEESON CJ: Go ahead.

MR CLOUD: The matter that was before the judge was raised by me in my claim as a constitutional matter. It was seeking relief against an adoption process that was commenced by the Family Court. Nobody would dispute that the Family Court was involved. However, the former High Court Judge did point out that the original Family Court judge never ordered the adoption.

Now, if I refer to the appeal book, page 15, lines 15 to 19, the former Judge at the High Court said:

Mr Cloud, Justice Barry did not make an order for the adoption of the child.

And he repeated that in line 19:

He did not make an order for adoption.

Now, further down on the same page, I am saying - on Mr Cloud:

He says that he did order the adoption - I have got the page here from the transcript - on the top line - on the top. That is a transcript when I was seeking access immediately after the orders were made.

It was like a week or two after, and his Honour says:

Well, that is not the order that was made in fact.

Now, the same one that I referred to is also article 10 in the material in which the applicant intends to refer. If you have that material, and it shows, the top line on page 11, where Justice Barry says - will I wait for them to find it:

I have already ordered that the child be adopted.

So you can see it was a complicated problem for me in that the formal orders never said there was to be an adoption but yet the judge told me face to face that I have already ordered the adoption of the child. Consequently, in my claim, I was claiming that the transfer of guardianship originally to the Director-General in Queensland was invalid, but also in the transcript I pointed out to the judge that it does not necessarily conflict with the orders made by the Full Court of the Family Court or - that was subsequently upheld by the High Court in 1996. It is just that there were unconstitutional strings attached to the orders that I could not appeal.

Now, my claim is because we have got two statements here, the former High Court Judge recently saying that Justice Barry did not order the adoption of the child, but yet Justice Barry telling me, "I have already ordered the adoption of the child" and stressing that I need to understand that.

I think the reality of the situation is that what he meant was, "I have already ordered that there will be no access for the adoption of the child", and that there was a dual situation going on - was that formal orders were made which I could appeal. Those orders did not compel an adoption, but unconstitutional strings attached, such as giving directions to the Director-General, at which was acknowledged by the Minister of Families that the child be adopted in Queensland, but have no access until the child reaches 18. That was another issue to what the formal orders were. Accordingly, I am not challenging - if you look in detail at my claim for relief, it does not try to invalidate the orders. It just tries to remove the unconstitutional effects and aspects attached to the former orders of the Family Court, which were that the Director-General be declared the sole guardian of the child.

I have in detail, in an affidavit, I told the judge - if you see page 9 of the appeal book, paragraphs 15 to 20, it shows that I explained to the judge that my claims were expanded in detail because they involved several sections of the Constitution and treaties.

Now, I am submitting that because the judge told me, and it was acknowledged by the Minister of Families that the Family Court effectively directed that the adoption proceed, that this does evoke treaties, and that for the child it is not a past matter in the past. It something that is practically going on right now, because he is just realising that he does not have the same rights as other children in Australia to contact his kinfolk, and these matters are covered in two treaties for free association, the right of self-determination, rights of the child. They are recognised in adoption law in other States, in New South Wales. In my material the applicant intends to refer, I have referred to an adoption book of it in New South Wales simply because the former Judge at the High Court said that it would be highly undesirable or something to that effect that any questions be asked at this stage. It seems that he was either biased or assuming that adoption was established and good whereas in actual fact there are, if you read adoption literature, conflicting views on adoption.

My claim is that because my claim evokes treaties and because both the Commonwealth and the State of Queensland support those treaties, they do not oppose those treaties. That it would not even be appropriate for the lawyers representing the Commonwealth and the State to oppose the operation of those treaties in proceeding further with having their strike out application upheld. I am saying that if the lawyers representing the Commonwealth do not really advocate the treaties, the Commonwealth and the State of Queensland, then they are not really representing, they perhaps should be dismissed as representatives of the Commonwealth in Queensland because the present policy of the government in adoption, they do not oppose the Adoption Act conforming with treaties, it is in the Adoption Review Act.

So, I am relying that my case requires a careful reading of the material that I have submitted and an understanding that I am not opposing the formal orders of the High Court, the Full Court - against the Full Court, rather. I am opposing the unconstitutional aspects and want to claim relief that would enable me and the child to communicate, have freedom of association, because it is 2002, it is in the information age.

In my material which I intend to refer to there is a reference that a particular case, it is No 15 of what I intend to refer to, on page 14, paragraph 50, where the High Court has upheld that "Australian law should, as far as possible, conform with treaties", which would obviously mean reading the treaties and the treaties also say that in adoption all the evidence should be looked at in detail. This means lesser laws, such as practices of courts, should not be factors which come to interfere with an Australian seeking their constitutional rights and seeking a remedy by a treaty whereby not only is the applicant aggrieved, but possibly the child, in that he would at some time have a desire to meet his natural kinfolk and that has been suppressed.

In other States I have got evidence that it is not suppressed and I put that evidence in because the former Judge at the High Court did state - and unfortunately I do not know where it is in the transcript but if you read the transcript it is towards the end, that it would highly undesirable to open questions at this stage.

I have the impression that the other parties are not wanting the courts to look in detail at what the law says and what the treaties say and I have given the details in my written statements in reply that comprise the appeal so I am hoping the Judges will read the written statements in order to evaluate the validity of the arguments themselves. Also, treat law in the order of priorities, such as what is important to Australia, and can two lawyers represent Australia if they are not actively advocating the treaties that Australia supports and which are not opposed by either the Queensland or the Commonwealth government? The fact that many laws have been made to conform with those treaties shows that even when the States make State laws to conform with the treaties, they are forming part of what comprises the Commonwealth so far as the citizens of Australia is concerned. Collectively they are upholding treaties.

I see it that the Court has an opportunity to look in detail at what opportunity there does exist for allowing constitutional relief and therefore not allowing the leave to appeal, rather, and not allowing it to be struck off on the basis of minor issues. Rather, the issues that count to Australia people should be considered and they are the treaties, the rights of children, the ability of Australia to make an international identity because it may have cases which proceed in conformity with treaties which gives Australia better recognition because in this world nowadays there is a problem of governments in strife, as you know with the USA, and I think that it is a very sound policy for governments to speak out their support for treaties for the people so the people can be respect the governments and they will never join a terrorist group or anything because they will say, "Why do this, we like our government?".

Basically, I think the same as for the child. If you look at what law exists, what law I referred to in my written statements, what is the child going to think because it stands that I may be able to explain to him one day that it is far beyond any practical time that all these laws were there but he never got them. Is he then going to respect the government? He has got two sisters he is not allowed to meet, I told the former Judge. I do not see any harm or damage by allowing leave to appeal and I would, again, stress the questioning of how can two lawyers represent Queensland and the Commonwealth if they are not advocating the treaties? Because, what is the Commonwealth? It is not the standard of those lawyers if that is there stand. That is basically my submission, I think.

GLEESON CJ: Thank you, Mr Cloud. Take a seat. We do need to hear counsel for the respondents.

This is an application for leave to appeal against a decision of Justice Callinan given on 29 August 2001 ordering that an action commenced by the applicant be struck out and making orders as to costs.

We are of the view that there has been no reason shown to doubt the correctness of the decision of Justice Callinan and for that reason the application is refused. The applicant must pay the costs of the respondents.

AT 9.47 AM THE MATTER WAS CONCLUDED