Case: Thorpe v Commonwealth of Australia (No 3) [1997] HCA 21 ; (1997) 144 ALR 677
Outcome: cited
Thorpe v Commonwealth of Australia (No 3) [1997] HCA 21 ; (1997) 144 ALR 677 , the plaintiff commenced a proceeding in the High Court seeking declarations that the Commonwealth owed certain obligations to Aboriginal people, that it ought to move the United Nations General Assembly for an advisory opinion from the International Court of Justice as to the legal rights of Aboriginal people and that the government should negotiate with him about the terms of the foreshadowed resolution of the United Nations General Assembly. Kirby J set aside the plaintiff's written statement of claim for want of jurisdiction. In dealing with the declaration which related to the securing of a resolution of the General Assembly of the United Nations, Kirby J said (at 690) that what the plaintiff was: "... seeking ... is that this court should set out to control the way in which the Commonwealth conducts Australia's international relations ... [I]n no case that could be cited, nor any that I have discovered in my own researches, has this court purported to intrude in such a way in the conduct of Australia's international activities. The reason why no such case could be found is plain enough although the explanation may be advanced in various ways. It might be said that the subject matters of the declarations are not the kind of "immediate right, duty or liability" grounded in a legal norm which would present a "matter" to enliven the jurisdiction of this court under the Constitution . This was the Commonwealth's primary argument. But it might also be said that the issues presented by the declarations lacked "judicially discoverable and manageable standards for resolving" a justiciable issue. Traditionally in this country, as under like constitutional provisions in the United States, the courts have been extremely reluctant to pass upon the conduct of international relations". Later in his reasons, his Honour said (at 692) that if a plaintiff invites a federal court to perform functions other than those properly exercisable by the judicial branch of government: "... it matters little in practical terms whether the court, facing an objection, rules that it lacks jurisdiction for want of a "matter" engaging its powers, or that it says that any such "matter" would be non-justiciable. In either event, the court's duty is plain. It should stop the proceedings forthwith. It will thereby send the parties to the other branches of government, or to other public fora, in which they can make their complaint". The applicants, in the present case, invite the Court to direct the Commonwealth government to adopt and prosecute a particular policy which is designed to influence the conduct of another sovereign government. They wish the Commonwealth to engage other sovereign governments and international institutions in an attempt to have the Indian government act in a particular way. The conduct of Australia's international relations falls within the province of the executive government. In the absence of legislative restraint it is a matter for the government to determine the issues which it chooses to raise with foreign governments and the manner in which it will pursue those issues with foreign governments. The choices which the government makes in dealing with international relations are a matter for it and are not justiciable. They do not give rise to "matters" with which the judicial branch may deal. In my view, the Court thus lacks jurisdiction to entertain this part of the applicants' case. The applicants applied for protection visas under the Migration Act 1958 (Cth) ("the Migration Act "). A delegate of the Minister rejected their applications. They appealed, unsuccessfully, to the Refugee Review Tribunal. In this proceeding they apply for a writ of mandamus to direct the Immigration Department to grant the visas which the Minister's delegate has already refused to grant. Under the Migration Act , visas are granted by the Minister or a delegate of the Minister. The Immigration Department has no power to grant visas. The Department has no duty enforceable by a writ of mandamus or otherwise to issue protection visas to the applicants. For that reason alone the application is bound to fail. The application would also have failed had it been directed to the Minister or a delegate of the Minister. This is because the application would necessarily involve the Court directing the Minister or a delegate how to exercise power conferred on them under the Migration Act , and to do so in a way in which they, having considered the applicants' applications, have determined not to be appropriate. This would be tantamount to judicial review of the decision-making process.