Horta and Others v The Commonwealth of Australia

(1994) 181 CLR 183
(1994) 68 ALJR 620
(1994) 123 ALR 1

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Between: Horta and Others
And: The Commonwealth of Australia

Court:

Judges: MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

Hearing date: 9 August 1994, 10 August 1994
Judgment date: 18 August 1994

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ORDER

Answer the questions reserved in the case stated as follows:

1.

Are the plaintiffs' allegations:

(a)

that the Treaty is void under international law; and

(b)

that the terms of the Treaty, and entry into and performance of the terms of the Treaty, are inconsistent with or in breach of the Commonwealth's obligations under customary international law, the Charter, the ICESCR, the ICCPR, and UNCLOS. justiciable?

Answer: Unnecessary to answer.

2.

Are the plaintiffs' allegations in paragraphs 1, 2(b), 3(b) and 4(b) of the Statement of Claim justiciable?

Answer: Unnecessary to answer.

3.

If the facts on the basis of which the plaintiffs seek standing, to the extent that they are justiciable, were made out, would all or any of the plaintiffs have standing to seek declarations:

(a)

that the making of the Treaty was not within the Executive power of the Commonwealth on the grounds referred to in paragraphs 10-11 of the Agreed Facts; and

(b)

that the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 and the Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions Act 1990 are not valid laws of the Commonwealth on the grounds referred to in paragraphs 10-11 and 13 of the Agreed Facts?

Answer: Unnecessary to answer.

4.

If the answer to questions 1 and 3(a) is "yes", would the making of the Treaty be beyond the Executive power of the Commonwealth:

(a)

if the Treaty were void under international law; or

(b)

if the terms of the Treaty, or entry into and performance of the terms of the Treaty, were inconsistent with or in breach of Australia's obligations under customary international law, the Charter, the ICESCR, the ICCPR or UNCLOS?

Answer: Unnecessary to answer.

5.

If the answer to questions 1 and 3(b) is "yes", would the enactment of the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 and the Petroleum (Australia-Indonesia Zone of Cooperation) (Consequentail Provisions) Act 1990 be within the powers of the Parliament under section 51 of the Constitution:

(a)

if the Treaty were void under international law; or

(b)

if the terms of the Treaty, or entry into and performance of the terms of the Treaty, were inconsistent with or in breach of Australia's obligations under customary international law, the Charter, the ICESCR, the ICCPR or UNCLOS?

Answer:

(a)

Yes.

(b)

Yes.

6.

If the answer to question 3(b) is "yes", are the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 and the Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990 invalid:

(a)

by virtue of the operation of section 81 of the Constitution;

(b)

on the ground that they purport to provide for the collection by Indonesia of taxation revenue that would otherwise have been payable to the Commonwealth;

(c)

on the ground that they contain an impermissible delegation to Indonesia of Commonwealth legislative power with respect to taxation;

(d)

on the ground that they impose an incontestable tax?

Answer: No.

7.

If the answer to question 3(b) is "yes", are the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 and the Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990 invalid on the ground that they purport to provide for the delegation of the Executive power of the Commonwealth to the Ministerial Council and the Joint Authority contrary to section 61 of the Constitution?

Answer: No.

The matter to be listed before a Justice in Chambers.

The plaintiffs to pay the costs of the case stated.