Horta v Commonwealth [1994] HCA 32

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Horta v Commonwealth [1994] HCA 32

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 pars 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 pars 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 pars 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) (Consequential Provisions) Act 1990 be within the powers of the Parliament under s. 51 of the Constitution: