Many of my arguments against my treatment in the District Court at
Kingaroy are based on a failure by the court and the respondents to observe
correct procedure as determined in the District Court Practice Directions no 4
of 1997.
The matter was set for mention only and not for hearing.
His honour proceeded with the hearing in the face of the respondents
complete failure to observe Practice Direction no 4 of 1997, setting me at a
complete disadvantage being unprepared.
His honour erred in proceeding with the hearing of this matter in light of
insufficient notice to the appellant required by Practice Direction no 4 of
1997. The directions require 21 days notice. I was given only 8 days
His honour erred in proceeding with the hearing when, on self admission my
arguments had not been fully read- thus denying fair adjudication.
His honour erred in dismissing the appeal for lack of merit without new
and additional material in respect of the Australia Act and Section 53 of the
Queensland Constitution being considered. There is much new material since my
appearance before the High Court on 22 June 2000.
Under section 604 of the Queensland Criminal Code 1899 I should have been
given a jury
Civilisation requires human beings to put their faith in a legal system
rather than help themselves to vengeance, retribution or rough justice.
A COURT is a place where JUSTICE is administered. JUSTICE is the
PROTECTION OF RIGHTS and the PUNISHMENT OF WRONGS.
JUSTICE is a moral ideal which the LAW seeks to UPHOLD. Procedures or
failure to adhere to set procedures which DESTROY RIGHTS or PROTECTS WRONGS is
UNJUST and has no place in a Court.
In the hysteria that followed the Port Arthur massacre, politicians passed
gun laws all over Australia. I honestly believe these laws are not within the
legal competence of the parliaments that passed them. They offend a number of
laws that were in place when the Federation referendum was passed in 1899. The
repeal of those laws was outside the competence of Parliament then- and I
honestly believe they still are.
There is also doubt about the validity of the Queensland State Governor
and all laws passed by the Governor since 1986. This includes both the
Australia Act 1986 and the Weapons Act 1996.
The issue of the validity of the position of State Governor was dealt with
recently in Sharples v Arnison and ors in the Supreme Court on 5 March
2001. I understand that the issue is to go to the High Court.
A PARLIAMENT has the power, conferred by its Constitution, "to make
laws for the peace, order and good government" but "a law in excess of
the authority conferred by the Constitution is no law; it is wholly void and
inoperative; it confers no rights: it imposes no duties; it affords no
protection…… To be valid and binding they must be within the domain of
jurisdiction mapped out and delimited in express terms, or by necessary
implication, in the Constitution itself. What is not granted to the parliament
of the Commonwealth is denied to it." (The Annotated Constitution of the
Commonwealth of Australia by Quick & Garran, p 346).
A COURT which does not pronounce laws, which are ultra vires, to be
INVALID is DERELICT in their DUTY. Equally, a COURT which promotes UNJUST LAWS
is NO COURT because it is, itself, acting ultra
vires.
In Essenberg v The Queen (B55/99) the respondents argument sought
reinforcement for the notion that State law legislation is autochthonous law
and thus unable to be challenged by reason of same, and furthermore, that the
Australia Act, specifically Sec 3, subsection 2, some how provides for
unrestrained autonomy of law making by the State of Queensland.
The passages of the Australia Act 1986 through all Australian parliaments
without dissenting voices were themselves without substance and void since
they were in clear breach of our Australian Constitution on more than one
fundamental ground.
Section 5 of the covering clause of the Constitution binds all courts,
judges and people of every State, not withstanding anything in the laws of any
State, whereby it is implied the continuing observance of the binding
principles of Federation. Section 106 of the Constitution makes the States
Constitutions subject to that of the Commonwealth and section 109 invalidates
the States laws to the extent of inconsistency with the Commonwealth law. Thus
antinomy- that is conflict of laws -is precluded.
"In the Commonwealth V Queensland, in a judgement with which Barwick CJ,
Stephen and Mason JJ agreed - Gibbs J held that it is implicit in Chapter III
that a State cannot legislate in a way that has the effect of violating the
principles that underlay Chapter III"
per McHugh J, Kable V DPP at pg
34.
It follows then, that perpetuating the integrity of law is incumbent on
the Federal Judiciary under Chapter III is binding also upon all courts,
Judges, and people of every state by virtue of covering Clause 5 under the
Constitutional Accord, which, in se, bespeaks of the retention of individual
jural responsibility at common law.
I argue that just as certain principles underlie the supintendant power of
Chapter III, to properly effect the cohesiveness of the rule of law, and
thereby good governance, there are, others which consubstantiate the
constitutional compact giving life to Chapter III.
So that while it may be said that the provisions of the Australia Act
anneal our Constitutional Compact, it is unable to derogate from
jurisdictional responsibility and its intrinsic founding principles.
Jurisdictional responsibility implies due cognisance of the canons of
antecedent compacts upon which our Constitution is based. That the Australian
constitution is drawn partly on the American, is enough to pay due regard to
their Jurisprudential view on such matters.
In an American judgement of 1968 it was said "It (Constitution) must be
read in the light of all engagements entered into before its adoption
including the declaration of Independence and the Declaration of Resolves of
the First Continental Congress and the privileges and immunities secured by
common law, conferred by Magna Carta and other English Charters…"
and elsewhere "the Constitution is the property of the nation and more
specifically of the individual and not those who exercise Government. All the
Constitutions of America are declared to be established in the authority of
the people" First National Bank of Montgomery v Jerome Daly." Per Mahoney
JP
That the people are patently also seen by the Australian Constitutional
draughtsman to provide the main impetus for the compact, inter se, impliedly
acknowledges that the canons of law which provide its substantiveness do not
come from executive government, or from Parliament, but those who, by their
very existence perpetuate jus the animus of lex.
It further follows that while, prima facie subsection 2 of section 3 of
the Australia Act 1986 purports to sever jus from lex in reality it has the
residual effect of consolidating the fundamentals integral to the system in
Australia under the guardianship of Chapter III which compels the judiciary of
the States to uphold the principles thereof.
"Legislatures cannot alter or undermine the constitutional scheme set up
by Chapter III"
per McHugh J Kable v DPP at page 29
and further, "If chapter III requires that State Courts cannot exercise
particular powers, the Parliaments of the States cannot confer those powers on
them. That follows from covering clause 5 … and from Section 106 by which the
Courts of each State is made subject to the Australian Constitution. This was
recognised in the Commonwealth v Queensland (1975) 134 CLR 298 at page 315
where it was said that legislation in violation of the principles that
underlie Chapter III is invalid" per Gaundron J Kable at page 26
The corollaries are that the very pillars, upon which our system of
Justice is based, cannot be legislated away.
In the words of McHugh J, " Neither Parliament (Commonwealth or State)
can legislate in a way that permits the Supreme Court (but for our purposes
the Court of the State) while exercising Federal, Judicial power to disregard
the rules of natural Justice, or to exercise legislative or executive power.
Such legislation is inconsistent with the exercise of Federal Judicial power.
The compatibility of State legislation with Federal Judicial power does not
depend on intention. It depends on effect. If, as Gibbs J pointed out in
Commonwealth v Queensland, State legislation has the effect of violating the
principles that underlie Chapter III, it will be invalid" Kable at pg
34.
From the foregoing it is seen as imperative that the State Courts observe
the responsibilities of Jurisprudence, which are incumbent upon under the
Federal Constitution and not to derogate from their legal foundation. Is
thereby not possible without becoming ultra vires, to set aside factors which
consubstantiate the matrix, inter alia, the antecedent perpetual compacts of
the Bill of Rights (1688), the 37 confirmations of the old Magna Carta (1297)
, the Statute of Monopolies 1623 with a handful of other covenants, referred
to as "the Bible of the British Constitution, were already entrenched by
reason of grounding in unchanging principle. A principle is an undying
force.
Therefore the learned Judges of the lower courts fell into jurisdictional
error by not pausing to ascertain the true status of their guiding
principle.
The Magistrate erred in law and process in neglecting to pay the
principles of Chapter III of the Commonwealth Constitution in not transferring
the proceedings under 78B of the Judiciary Act 1903 as a "matter" caught by
the meaning of that section (Kable)
I say that since I raised Constitutional issues that under Section 78B of
the Judiciary Act 1903 that the magistrate was obliged to have the case
removed to the High Court for these issues to be resolved
It is evident section 78B of the Justices Act was invoked by the substance
of my defence in the first instance, which similarly was caught 35A of the
Judiciary Act (1903).
Thus: " when a court is created by an Act of the Legislature, the
Judicial Power is conferred by the Constitution and not by the Act creating
the Court. If its Jurisdiction is to be limited it must be limited by the
Constitution" 16 American journal 2d on Constitutional Law sections
210-222, pages 77 to 83. Per Marney JP in First National Bank of Montgomerey v
Gerome Daley
The word, "Prejudicial" means harmful to rights or interests, and I
say for my trial to be done in a summary manner was harmful to my rights and
interests.
The Anti Discrimination Act 1991 says on page 2260 Queensland Statutes no
85 1991, (15.1) we are all equal. The Anti Discrimination Act 1991 binds the
Crown by Section 3 in all its capacities. By Section 101 (15.4) it binds all
Judicial officers. By Section 5 Criminal Code Act 1899, persons in Queensland
may only be tried as for an indictable offence under the express provisions of
the code. This Act was in force and known to the electors who voted for
Australia. By Section 118 (9.9) Constitution, it became Australian Law. By
Sections 560 to 659 Criminal Code, the procedure to try indictable offences
was codified, and a jury trial guaranteed.
Indictment is defined in Section 3 of the code, to mean a written
charge preferred against an accused person in order to his trial before some
court other than justices exercising summary jurisdiction. I did not at
any time consent to summary jurisdiction. Applying the rule in Heydons'
(10) case, the mischief rule, summary procedure was for the benefit of
persons accused, not prosecutors. That is the meaning of the word "may".
(10- CS Pearce and RS Geddes STATUTORY INTERPRETATION IN AUSTRALIA,
3rd edition (1988)Butterworths. Brisbane. P 24 Heydon’s case (1584)
3 co rep 7a at 7b, 76 ER 637 at 638
In 1960 Section 3 Criminal Code (11) (7.1) allowed me to submit
myself by consent to two justices of the peace, who were not paid public
officers but drawn from the ranks of my local community, for justice. In 1985,
by Act no 32, without a referendum, the Parliament of Queensland enacted that
a Magistrates court could try me. By Section 53 Constitution Act 1867, (Q)
this is not an Act. Section 53 Constitution Act 1867 mirrors Section 128
Constitution. A Magistrate appointed by the State as delegate of the Office of
Governor, is not the same as two Justices of the Peace appointed on the
recommendation of the local Member of Parliament. It is a Constitution change
and requires a referendum. (11- Queensland statutes 1828- 1962 Vol 3 p
221)
I would now like to turn the Courts attention to the previous judgements
in the lower courts. Given the nature of the ligamen binding the State and
Federal principles it is submitted it is not necessary to expound on their
honours dicta but some response is invited. In the District Court of Appeal at
Kingaroy his Honour Boyce J was given to the view that there is "no
inconstancy…. shown between the relevant statute law of the State of
Queensland and the statute law of the Commonwealth of Australia." With all
due respect his honour neglected to observe the invocation of Federal
Jurisdiction in the matter and thus inconsistency of applied jurisprudential
law. The vagueness of his honours remark is all the more mystifying given
there is no relevant Commonwealth statute pertaining to the Weapons Act of
Queensland, as rightly pointed out by Lebsanft SM in the Magistrates Court at
Kingaroy and tends to be provocative of Judicial review.
The Magistrate erred in referring to the case of Walker v. New South Wales
(1994) ALJR at 111 and Gibbs J said in Coe v. The Commonwealth (1979) 53 ALJR
403 at 408 (In the judgement of Gibbs J in Coe v Commonwealth (1979) 53 ALJR
403 at 408 the court was evenly divided.)
These are cases which turn upon the question of Aboriginal Sovereignty as
confined to State and Federal Jurisdiction, and in this instance are
misapplied.
The learned Magistrate further quotes from a supporting case in the same
proceeding and then in another also turning upon Aboriginal sovereignty but
respectfully in doing so fails to provide further substance to his
deliberation.
Customary Aboriginal law is irrelevant to my case. I demand that customary
UK laws called the "Common law"- laws codified in the Magna Carta and the Bill
of Rights (1688)- be applied
I am subject to legally valid laws of the State or Commonwealth. In fact I
insist that these laws be applied- in particular section 78B, The Magna Carta
and the Bill of Rights
I am not arguing that the courts have no Jurisdiction (as was done in the
cases stated by the Magistrate).
The correctness or otherwise per se, of the arguments in regard to Magna
Carta raised in the proceedings of Skyring and Cusack, and upon which the
learned Magistrate also relies, have no real bearing upon the substantiveness
of mine in this case.
However it is the assertions contained in Chestermans J (Criminal Court of
Appeal) judgement in regard to Sir Edward Cokes Commentaries that invite some
address in detail.
In seeking reliance upon the minority judgement of Dawson J in this court
in Kable v DPP the learned judge was applying error of law and furthermore,
his interpretation of Justice Dawsons judgment was, with, due respect,
erroneous. When one looks at the actual dicta one finds the intent of the
wording to be distinct from that of the meaning drawn by the learned
Chesterman J. Coke was referring to the High Court of Parliament in his Fourth
Institute. Indeed, the Fourth Institute begins with the wording " of the
High and Most Honourable Court of Parliament. This Court consists of the Kings
Majesty in his Royal politic capacity, and the 3 Estates of The Realme."
The whole of Parliament then being a Court, as interpreters of communis juris
Anglia would naturally be transcendent and absolute as in absolution before
God, and perforce had to be upholden and not in contradistinction to their
charge. Bills of Attainder then, which were Acts of Parliament contrary to
natural justice, could never be valid law and accordingly, in the form of the
Community Protection Act of NSW of 1987 was struck down for that very
invalidity as recently as 1996 by the High Court.
The Australia Act
In Essenberg v The Queen (B55/99) the respondents stated that the
Australia Act, specifically Sec 3, subsection 2, some how provides for
unrestrained autonomy of law making by the state of Queensland and that thus
the Weapons Act was legal.
I refer to the article - National Gun laws and Constitutional Matters and
the prerogative of the Crown. It states "In the enactment of the Nations Gun
Laws by the State Parliaments of Australia, it was essential for those
Parliaments to use part two of Section Three of the Australia Act, 1986, which
allows Australian governments to enact Laws contrary to the laws of England.
This section of the Australia Act has the provision to allow Australian
State Parliaments to enact laws contrary to the Common Law Rights of Her
Majesty’s subjects (Australian Citizens) and also contrary to the prerogative
of the Crown in respect to upholding those rights contrary to rights that have
been reaffirmed by Statute.
The Monarch cannot lawfully or willingly grant Royal Assent to legislation
that undermines or allows an enactment of laws contrary to Her Royal
Prerogative, unless she has been led to believe this legislation is the will
of her subjects, that has been determined by referendum. There was NO
(Federal) referendum held to permit the enactment of this Section of the
Australia Act".
The Australia Act (1986) and Section 51 (xxxviii) Constitution
The Preamble nugatory reveals an intent inconsistent with Australia’s
precedent legal status as a self-governing polity, judicially independent of
the Parliament at Westminster, by virtue of Federation in 1901 , which under
section S74 of the Commonwealth Constitution precluded any appeals to the
Privy Council from a decision of the High Court, in recognition of
jurisprudential autonomy. The States, whose identity is derived from S106 of
the Commonwealth Constitution, are effectively caught similarly by S74. May it
be added , the Royal prerogative , by which avenue clause 3 of S74 special
leave of appeal is afforded from the High Court to Her Majesty-in-Council, is
not an intermeddling process, but further acknowledgement of the nation’s
establishment at common law (as is the first clause of S74) under the common
law auspice of equitable justice under the Crown. The Prerogative, in this
capacity, is thereby not sustainable of bar by statute. (See S11(I) Australia
Act(1986)). The Commonwealth of Australia, augmented by virtue of it’s peoples
consent, was ipso facto founded upon unobstructed self-determination ,
emerging as an untrammeled political and juridical corpus, rendering the
stated intent of the act nugatory. Further it will be shown through out the
body of this analysis that the Constitutional environs of Australia and the UK
remain indiscerptible
The second clause of the preamble of the Act states the fundament of its
genesis is drawn upon Section 51 (xxxviii) of the Commonwealth Constitution.
In the reading of the Act as a whole, it becomes evident that its main intent,
broadly, is the dissolution of legal ligamen from the Crown of the UK by
repeal of certain machinery acts, purportedly altering thereby, the powers of
the Head of State, enlivening S128 of the Constitution, but of which there is
no reflection in the Act, Within Section 51(xxxviii) of the Commonwealth
Constitution there is no scope upon which to predicate abscission from the
auspice of the Crown of the United Kingdom: to read otherwise is to vest it
with meaning which is misrepresentative of the whole of that Act. While it was
envisaged during the 1891 Convention Debates that Federation would result in
Autonomy, there was no intent to sever the Australian polity from it’s
Constitutional basis in the UK- quite the contrary, and many historical
authorities consolidate this view. There is no intent to read into the
preamble of the Commonwealth Constitution to dispossess Australians of their
legal heritage. To claim such provision in an implied sense under S51(xxxviii)
is antithetical to any basis for authority by Constitutional continuum. The
plain meaning of S51(xxxviii) does not confer power upon the State and
Commonwealth Parliaments for abscission from the vinculum of their original
source, for there can be no Constitutional atrophy of the founding nidus, for
in the case of Australia the principle applies that "the law should postulate
one or more first causes whose operation is underived …there must be found in
every legal system certain ultimate principles from which all others are
derived but which themselves are self-existent."(the words of Sir Owen Dixon,
Chief Justice of the High Court of Australia, 1957, quoted from his
extra-judicial paper "The Common Law as an Ultimate constitutional Foundation"
31 ALJ) The Australian politico/legal system does not stand alone and
underived, to "where the memory of man runneth not." The construct of
s51(xxxviii), when read as a virent component of the Commonwealth
Constitution, cannot not be understood but as a reserve power to be used
beneficently for the Australian nation expressly provided for by the words
"within the Commonwealth", and constrained thereto. The dispossessive nature
of the Australia Act cannot be interpreted as a beneficent outcome, for
contrary intent to S51(xxxviii), and any contrary imputation is not assisted
by the extra-territorial provision of Section 3 of the Statute of Westminster
Adoption Act 1942, which, provides for the legitimate defence measures in the
war then being conducted by His Majesty.
Dispossession is not synonymous with autonomy, and in the words of Kitto
J., a Justice of the High Court for 20 years, from 1950 to 1970, on the
subject of taking liberty with the law: "I think it is a mistake to (be)….
concerned with ‘changing social needs’, …or that it is to be decided by
‘designing’ a rule…to discuss(the matter) in terms of ‘judicial policy’ and
‘social expediency’s to introduce deleterious foreign matter into the water of
the common law- in which after all, we have no more than riparian rights."
Airlines of NSW p/l V NSW (No.2) 1965 113 CLR 54 @ 115
Sir Edward Coke termed it "innovation in the law", but it’s true epithet
has always been ‘ultra vires’.
"Excess of jurisdiction is want of jurisdiction" WC Wentworth
Extra-Territorial Jurisdiction Misapplied
In Gould and ors V Brown S204/1996 (8-4-97) it was argued, broadly, that
due to lack of power vested in the Colonial Legislatures in regard to
extra-territorial jurisdiction, they were, accordingly, unable to confer such
power upon the Commonwealth Government under S51(xxxviii) of the Commonwealth
Constitution, and are thereby unable to enjoy the reading down of Section 107
to any other effect. The authorities cite that dealing with the Parliament of
the UK can be viewed as an ‘external affair’, but even so, S51(xxix) (external
affairs) does not apply to the States, who are precluded by ultra vires in the
first instance, voiding, thereby Section 2(2)of the Australia Act, ab initio,
insofar as any law which is part of the (body of) law of the State.
Sir Harry Gibbs’s judgement in Kirmani v Captain Cook Cruises P/L (No. 1)
(1185) 159 CLR 351 found for the view that that which forms part of the body
of law in Australia remains in force, as follows: "There remains the question
whether an act of the Commonwealth Parliament which repeals an act of the UK
in so far as it is part of the law in force in Australia, is, for that reason
alone, a matter with respect to external affairs. The answer is….clearly in
the negative."
Indeed, the body of law to which our argument refers in context of the
Australia Act is that 1) the Prerogative is the enabling mechanism by which
the colonies themselves were established, and thus forms the matrix of their
existence, internuncially bound within their legal fabric. Reference here is
made to the Australian Constitution Act (1842), (5 & 6 Vic. C76) (Imp.),
the Australian Constitutions Act (1850) (13 & 14 Vic. C59) (Imp.), and the
Letters Patent of 6th June 1859 erecting Moreton Bay into a Colony,
under the name of Queensland. (as upheld by SS 8 & 9 of s West)
Though the States’ participatory identity in the Commonwealth is drawn
from the Commonwealth Constitution Act 1900 (63 & 64 Vic. C12) their body
politic rests upon a Colonial foundation, and remains coexistent with the
Commonwealth.
In the Queen v Sam Scott No.SCC75 of 1990; (1993) 114 ACTR 20 (1993) 65 A
Crim R 182; (1993)ACTSC 12 (22 February 1993) Higgins J’s judgement came down
for the status quo: "The expression ‘the Crown in right of…’ has been used
variously to express identification either of a separate Realm or of a
separate, even if subordinate, body politic… However if under the aegis of one
of those Crowns, there is created a different and distinct body politic, such
a body politic may have separate and distinct liabilities and powers but, so
far as is relevant, be subject to the exercise of power by the same holder of
the office of Head of State as the dominant legislature. It may not have or be
given the power to alter the succession to or description of that office" (of
Queen).
Insofar as the Commonwealth it is founded upon plebiscite, the same being
acknowledged in clause 1 of the preamble of it’s Constitution and expressly
provided for by Section 128 within it in regard to all matters of Commonwealth
restructure, in acknowledgement that issues of grundnorm, must be referred to
it’s matritudinal genesis. Plebiscite, therefore, forms the vera causa of the
body of law for the Commonwealth, and ipso facto cannot be abrogated via
arrogation of power by the executive, and any resultant legislation got by
such means would be necessarily void and of no effect.
Parliamentary Supremacy Unfounded- Australia Act(s) Provide No Basis-
Australian Parliaments are Creatures of Law
Sir Owen Dixon, in his article, "The Common Law as an Ultimate
Constitutional Foundation" op. Cit.,at page 242, had previously brought to
light the cause of the deficiency of plenariness: "…the principle of
parliamentary supremacy was a doctrine of the common law as to the Parliament
at Westminster (only; due to actual ascendancy of the common law at the
revolution) and not otherwise a necessary part of the conception of the
unitary system of government. There was no inherent reasoning for supposing
that in virtue of the Colonial Laws Validity Act 1865, the same supremacy over
the law should be conferred on a Colonial legislature as the Parliament at
Westminster possessed at common law. (particularly as the colonial
legislatures were creatures of the Prerogative and thereby not constituted at
common law.) Nor…was there any warrant for…the assumption… that in a …Dominion
Constitution combined with the Statute of Westminster, a unitary system of
government in a sovereign state must (necessarily) involve such parliamentary
supremacy over the law."
Sir Owen went on to say (at page 244) that parliamentary supremacy itself
was a creature of the law, and, in our view, an arrogation of the (common law)
prerogative thereby, and as such always ultra vires of it. "Every ordinance
must interfere with the common law" says Street in his ‘A Treatise on the
Doctrine of Ultra Vires’ (pg. 409 1930 edition), citing the finding in
Middleburg Municipality v Gertzen (1914) AD 544, 546 at pg. 409 "and constant
difficulty arose, which was (purportedly) removed by the Colonial Laws
Validity Act." (our interpolation). "Ordinance" must be read for "statute",
ascribing to the term its decretal nature, colore officii, (in contrast to the
equitability of jus vested in right of the people) and thereby self
descriptive of arrogated power. In an earlier critical analysis, it was
concluded that "lex and consuetudo Parliamentii is not introduced as a part of
the common law into a settled colony." (Webb, Compendium of Imperial Law,
p19), and therefore does not, and cannot, arise per medium of residual power,
for there being no residual, dormant or latent sovereignty in a subordinate
legislature (Dixon; "The Statute of Westminster 1931", 10 ALJ 1936).
At page 416, alongside the annotation ‘No colonial Legislature sovereign’,
Street (ibid) says as follows: "Legislatures, other than the sovereign
legislatures of the Empire, are comparable to corporations from many
standpoints… but there can be no Colonial Legislature with powers unrestricted
as those of the common law or ‘ordinary’ corporations; and where some such
power was claimed for the Legislature of Quebec, Lord Hobhouse said (Bank of
Toronto v Lambe (1877) 12 AC 575, 587): ‘It has been suggested that the
provincial legislatures possess powers of legislation either inherent in them
, or dating from a time anterior to the Federation Act, and not taken away by
that Act. Their Lordships…. Adhere to the view which has always been taken by
this committee, that the Federation Act exhausts the whole of the legislative
power."
At page 417 (ibid): "….colonial legislatures… owe their existence to the
direct authorisation of the Crown, acting generally in virtue of the
Prerogative, but sometimes also under statutory authority."
Sir Owen Dixon (op. cit. 10 ALJ supplement 1936), at page 106, notes that
insofar as inherent parliamentary supremacy, it’s foundation needs to be upon
"political convulsion, as the legislative organ of a government erected by the
people and originating in their act; not as a parliament established by, and
therefore under, the law." He continued (ibid): "The Privy Council treats it
as a product of the law, as a legislature established by statute. So
considered, it cannot be sovereign over the law. It is the creature of law.
Its powers are defined by law…
According to the principles of our law which are at once rudimentary and
fundamental, an excess of power is void. It is void because it is an attempt
to do what the law does not authorise.
(From) whence did the legislature of the Free State obtain a positive
power to amend it’s own power of amending the Constitution so as to extend it?
This appears to me to be a question as to the ultimate source whence a
Dominion obtains its authority?" Under discussion was Moore v Attgen of the
Irish Free State (1935) AC 484
The question is not for determination, for legal constitutional history
provides only one answer.
In China Ocean Shipping Co. v South Australia (1979) 145 CLR 172 (Sir)
Garfield Barwick, Chief Justice (as he was then) of the High Court, was
completely candid on the above point in regard to the Australian Federated
position. He says (at page 182): " The Commonwealth, by the grant of the
Constitution , in my opinion, quite clearly became a colony. Indeed it might
well have been concluded that it became the colony. The former colonies, whose
people were united in the indissoluble Commonwealth, could have been
considered no longer to be colonies having become constituent states of the
new Commonwealth albeit with constitutional powers identical in content with
those formerly existing but now deriving, but subject to its terms, from
section 106 of the Constitution. But, …the new Commonwealth became itself
another colony, self governing, but lacking both political and constitutional
independence."
It follows, self evidentially, that sovereignty cannot be obtained by
dispensation. While the Statute of Westminster Adoption Act (1942) (C’wealth)
and the Australia Act(s) of the Commonwealth and the Parliament at Westminster
received the Royal Assent, the exercise in toto results in inexorable
reversion to the status quo of Dominion and Colonial Legislatures in
perpetuity. In other words, the Commonwealth and State Parliaments, being
creatures of the law, and devoid thereby of autocephalous foundation, could
not, by an act of the legal wand, obtain abiogeneric independence, for the
acts upon which they seek to rely, namely the Statute of Westminster Adoption
Act (1942)(C’wealth), and the Australia Act (1986) (C’wealth) suffer the same
limitation- themselves being creatures of the law. Any purported arrogation of
juridical power predicated upon statutory dispensation is ultra vires of the
common law and unknown to it, and is legally fictitious. The Australian
lego-political system as a product of the Imperial nidus, remains, ipso facto,
encintured, and is thereby unable to be severed from it within its terms of
reference.
Imperial Parliament Paramountcy Continues in Force
.
In his paper presented to the Law Convention of 1936, (10 ALJ Supp 1936,
op. cit.) the Honourable Mr Justice Owen Dixon (as he was then) was of the
view that the Statute of Westminster (193) (Imp) did nothing to further the
Commonwealth or State Parliaments, respectively, towards absolutist self
government, but, obversely, pointed out at length that the statute only
consolidated (strengthened) the powers already extant in respect of
autonomy.
"The purpose of the main provisions of the statute (he said) is to
abrogate the rules of law which were thought to be inconsistent with the
existence of complete legal autonomy and complete legal equality. The
accomplishment of this object by legislation was necessarily difficult. For,
in the first place, it brought the promoters of the statute face to face with
the only limitations there is upon the omni-competence of the Imperial
Parliament. The limitation necessarily arises from that parliaments supremacy
over the law. No law it makes can deprive it of supremacy over that law. The
last expression of legislative will repeals all prior inconsistent laws. So,
long, therefore, as the Dominions remained under the jurisdiction of the
British Crown, the theoretical power of the Parliament at Westminster to make
laws extending to them could not be extinguished… (also)…the Dominions did not
all desire that the power should be extinguished… the framers of the statute,
therefore, contented themselves with endeavouring to insure that it would not
be exercised except upon the request of the Dominions. But this device would
not give quasi-autonomy or quasi-legality in law so long as statutes of the
Imperial Parliament, existing or future, prevailed over Dominion legislation.
It was therefore considered necessary to attempt to reverse the rule of
Paramountcy… to enable the legislature of the Dominion to enact laws which
should prevail over the statutes of the Parliament at Westminster… there are
difficulties again in the execution of that purpose… First, the proposed rule
could not prevent the Imperial Parliament from afterwards enacting a statute
containing some sufficient expression of intention that it should operate in a
Dominion, notwithstanding any law of the Dominion to the contrary. Such a
statute would necessarily prevail over local statutes even if subsequently
(re)enacted….For, if it were open to the Dominion Parliament to legislate
inconsistently with it, the amendment would not possess the controlling force
necessary in a rigid constitution…
In the second place, the constitutions of the Dominions…consist in
Imperial Statutes. Powers of amendment are conferred by those constitutions…
But various limitations are imposed upon the power; and, in any case, a power
to amend laws inconsistent with a constating instrument is not necessarily the
same as a power to amend it.
Thus, in the project of removing the binding force of the Imperial
statutes, there is inherent the question, what binding force will a Dominion
Parliament possess?" (at page 98, 99)
The answer, of course, is self evident- without abiogenesis: "a founding
‘act of the people/ political convulsion’" as his honour has put it, there is
none.
Politics as law: Statute of Westminster and the Australia Act.
Mr Justice Dixon earlier noted in his paper on the Statute of Westminster
(op, cit), its curious character, shown by the statutes preamble to be
political, rather than a document of legal law, saying, at page 98, that the
motive for insertion of the recital "bore no resemblance to the reasons which
are supposed to justify the use of a preamble."" He comments further (ibid);
"No one whose reading includes judgements and juristic writings upon
constitutional matters can fail to perceive how common it has become under
colour of obtaining aid in the elucidation of the existing law, to invoke
principles and practices which statesmen have sought to establish as
conventions governing and restricting the actual exercise of admitted powers.
Indeed sometimes they are described in a manner elevating them ALMOST to the
level of legal principles. This tendency has peculiar dangers…..It may be that
those responsible for the introduction of the recital into the Statute of
Westminster hoped that, rightly or wrongly, some such use might be made of the
declarations and resolutions set forth in the reports to which it refers (as
extension of law) Under the fostering influence of the recital strange plants
may grow. Claims may be made to treat the declarations and resolutions as
matters that Courts may notice and act upon in such a way that they become, in
effect, a source of Constitutional law. THIS THEY ARE NOT AND CANNOT BE."
Similarly the preamble to the Australia Act (1986) (C’wealth) plainly
shows another attempt to institute political innovation as legal law, taking
precedent from the Statute of Westminster.
Barwick CJ, as he was then, in China Ocean Shipping (op. cit.) was,
broadly speaking, of the view that at law, political and legal grounds occupy
areas of divergence (and cannot be hybridised). He cited the Rhodesian cases
of Madzimbamuto v Lardner-Burke, and Baron v Ayre (1966) RLR 756 (p182) when
he said (at p 182) "The Supreme Court of Rhodesia, which accepted the defacto
independence of Rhodesia by the Unilateral Declaration of Independence,
acknowledged its illegality, conceding the continuing power of the Imperial
Parliament notwithstanding the grant of Autonomy by the 1961 Constitution (an
autonomy quite as large and extensive as that to be derived from the
Australian Constitution)." (our emphasis)
In Similar vein his Honour Mr Justice Dixon (as he was then), op. cit. 10
ALJ (1936) observed (at p 99-100), that, at bottom, cognisance by convention
was one thing, but they do not operate at law to diminish the power of that
(the Imperial) Parliament."
It is therefore apparent on good authority, that both the Statute of
Westminster and the Australia Act have the dubious force of convention, but no
legality, and are no true bar to Paramountcy of Imperial enactments at any
time. At the same time our claim at previous hearings for virency of Imperial
constitutional enactments which form the body of law for this State under the
Imperial Acts Application acts 1984, and relatively for the Commonwealth
Constitution remain viable.
The Australia Act (the Act) fails as law for the following reasons:
Void in se: its claim for ‘conformity’ in its preamble with sovereign
status is plainly vacuous for sovereign status had already been established
under the Crown at federation. The word ‘conformity’, therefore, provides no
legal cause upon which to predicate legislation for the purpose of alignment
with established law, and becomes superfluous thereby. The descriptions
following in qualification, viz., ‘sovereign, independent, federal’, have also
no legal predicate, being merely an attempt hybridising socio-political status
into law, but having no real force, and are reduced to tautology. Each of the
words, purportedly forming the essential ingredients as its vera causa,
individually or in combination, render it raison d’etre to a nullity.
However within its provisions, the intent of the act becomes manifest. Its
framers motivation appears strongly to turn on the word ‘sovereign’,
allegorical in this context to sui generis, an in its purported achievement of
legislated abiogenesis, this act has attempted to establish in Australia what
histories experience has shown legitimately can only be established by popular
will. Alas, for its proponents, the act has no legal grounding even in its
fundament, and for evasion of entrenched constitutional process, the grundnorm
of the body of constitutional law in this country, as expressly provided by
the constitutional provisions in this states Constitution, and that of the
Commonwealths, namely, section 53 and section 128, respectively. The
provisions of the Act, so far only touched upon, will be examined more closely
in approaching argument.
The Grounding for the Act , as shown by its preamble, is merely the
conferences which took place between the Prime Minister and State Premiers
during June of 1982 and 1984- a la sourdine- for the ‘taking of certain
measures’, its primum mobile then, being executive act.
A contention was raised in Judamia & ors (hereinafter ‘Judamia’), that
consent by the Australian constituency for federation was somehow ongoing
authority for the Australia Act (Request) Acts, implying accrual to the
executive by latency. The peoples consent possesses a limited dynamic in its
application to a particular outcome, and ipso facto must be renewed on a
regular basis. It cannot be enlivened as though dormant, for in essence,
renewability suggests an inherent sunset clause quality. Anterior approval on
a constitutional question in 1900 also cannot be held to speak for the
constituency 85 years later, and especially in view of an opposite
interpretation. Support for the contention raised in Judamia was cited as
Murphy J’s dictum in China Ocean(op. cit.) (a misquote, for actually appearing
in Kirmani v Captain Cook Cruises P/L (1985) CLR 351 at pg151 (hereinafter
called Kirmani) but even so , such can only be drawn by stretch of inference,
for his Honour was speaking in reference to the acceptance in general by the
Australian people of the Commonwealth Constitution, and it is only by zealous
extension that such basis for any express or implied authority could be
arrived at.
It follows, therefore, that given even the legal gymnastics of’dormant,
tacit, referendum; the power of section 51(xxxviii) cannot be enlivened for no
principle of dormancy of ongoing popular consensus. Further, it was argued in
‘China Ocean’ for the plaintiffs, that where a State Constitution , pers se,
does not have any particular status (in view of unitary government)
(McCauley’s case), it does have the status of defining the way in which
legislation is passed- manner and form was suggested as an example. Where
specific matters are entrenched, such entrenchment’s are enforced and
legislation passed in a manner other than the entrenched way is invalid.
Trethowan’s case and Clayton v Heffron were nominated as cases in point. (at
page 26- proceedings)
Similar conclusions were drawn by the majority in KIRMANI, comprising
Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ, when they found, concisely
speaking, that any change or modification to organic law required a
constitutional head-of-power, that being, in the current context, a first
principle of law which gives rise to an act within the scaffolding of the
constitution. There is no first principle of law upon which the Australia Act
relies.
Further, that the Commonwealth has no power to legislate for the States,
is settled law, and insofar as the Australia Act, by principle of overriding
of legislation purports to do so, albeit in a symbiotic arrangement with the
States, and we refer to the Australia Act (Request) Act Qld 1985, makes it
also void ab initio for repugnancy to the Federal compact. But, further also,
it is beyond the competency of the States legislatures to initiate any such
alteration in the Constitutional fundament, a claim for sociological basis
(‘Prime minister… and… Premiers… agreed) in the Australia Acts preamble does
not provide any validity, but, as stated opinion, seeks impliedly to evade the
manner and form provisions of the respective State and Commonwealth
Constitutions.
In the Australian Communist Party v The Commonwealth (1951) 83 CLR xxxx,
it was brought to light during argument for the plaintiff that "Parliament
cannot define or extend it’s constitutional power facts or by a legislative
statement of connection between a particular law and a head of power. The
powers of the Commonwealth Parliament are defined, and therefore limited, by
the Constitution. The (High) Court has held on several occasions that the
opinion of the Parliament or the opinion of the Governor-General or of a
Minister that a particular matter is within the legislative power of the
Commonwealth Parliament did not affirmatively establish that the matter
actually is within such power. (per Latham CJ at para 36) Cases cited in
support were ex Parte Walsh and Johnson (1925) 37 CLR 36, South Australia v
The Commonwealth (uniform Tax case) (1942) 65 CLR 373 at page 432; Reid v
Sinderberry (1944) 68 CLR 504. The defendants did not dispute the authority of
the cases mentioned.
Given that the Australia Act of the Commonwealth seeks to be established
by the reserve power mechanism of section 51(xxxviii), rather than a first
principle of law expressed under that section, and for the very purpose of
extension of Constitutional power, in contradistinction to lawful constraint
by it, it falls with the precedent prohibitive judgements of the High Court,
and, in further parallel, untested opinion of the heads of respective
executive governments cannot be held as any basis upon which to predicate a
legal act. A fortiori, just as the Commonwealth cannot legislate on the basis
of opinion, it is similarly precluded from doing so on the basis of status,
status simply being social designation in discriminatory application. The
words inclusion in the preamble is empty of legal explanation and speaks to
nothing more than social aspiration. The ensuing descriptions of the
Commonwealth of Australia as ‘sovereign, independent, federal’ providing only
subsidiary ballast, so to speak, as adjectives, and suggestive thereby of
susceptibility to displacement by any other description, albeit ‘federal’
appearing also in the sense of a truism. On such purport, what is to prevent,
ex hypothesis, another parliament at another time from legislating Australia’s
status in any other sense? In Sir Owen Dixon’s words "that motive bore no
semblance to the reasons which are supposed to justify the use of a preamble."
(supra. At page 98)
Again, the preamble is a political statement only. Sir Owen Dixon in his
article on the Statute of Westminster (supra) was at pains to point out that
politics is not law, which disguise is not successfully passed off for being
unapparent to any of long experience in reading judicial text (ibid). Politics
as law lacks substantive legal premise, as previously shown, for dichotomy of
genesis- law being an exegesis of living principle, while politics is simply
ignis fatuous, the very word ‘politician’ stemming from the Latin
pollicitatio, from polliceor- to make boundless promises (excluding, by
implication, any substantive element). (For that reason, salient legal
reductionism has never shared a happy coexistence with political rationale).
Thus, bereft of legally grounding principle, again, it is shown that the
Australia Act (C’wealth) does not stand at law.
Even from the standpoint of the doctrine of repugnancy, it was held in
KIRMANI, that the doctrine, per se, cannot, and does not, provide unqualified
basis for in vires law, and further, the purpose of the doctrine was to simply
consolidate local legislative autonomy, and not provision as a leaping-off
point for legal adventurism. Those who would cite Moore (Moore v
Attorney-General of the Irish Free State (1935) AC 484, hereinafter MOORE) in
support of Constitutional expansionism err in their view, for that decision
was based , ab radix, on the legal principle of a treaty between the people of
the Irish Free State and the Government of Great Britain, which was given
Imperial Parliamentary recognition As the Irish Free State (Agreement) Act
1922, and subsequently provided the basis for the Irish Free State
Constitution Act 1922. There is no treaty between the Australian people and
the Government of Great Britain upon which to base an Act of abscission from
the Imperial Parliament. Furthermore, the decision was taken in light of the
unitary government of the Irish Free State, and not applicable to a federation
(per Dawson J, KIRMANI at page xxxx) for the latter’s, as it were, compound
sovereignty. Dawson J’s perspective on the true basis of sovereignty accords,
in principle, with Sir Owen Dixon’s (supra)(op.cit.), that is, constitutional
change must be instituted by direct will, not by purport of Parliament or
executive, proxy.
In this context, Justice HV Evatt (as he was then) points to that which is
good law in the Statute of Westminster (1931), in his monograph circulated
contemporaneously, and cited by Wilson J (KIRMANI at paras. 17-19). In His
Honour’s Justice Evatt’s view, there was no separate head of power awarded to
the Commonwealth by the statute’s section 2(2) for the purpose of
Constitutional expansionism (sic), this view concurring with Sir Owen Dixon’s
(op. cit.), and others’. Indeed, in Justice Evatt’s words, any alteration to
the Constitution or the powers of the Commonwealth Parliament "Must be done by
the people of Australia in pursuance of a referendum in section 128 of the
Constitution." In a subsequent paper presented to the 1936 Australian Legal
Convention, His Honour drew attention to the express preservation of the
constitutional integrity of the States under section 8 and 9(1) of the Statute
(ALJ Vol 10 (1936) Supp. 96 at page 107), and given these express safeguards
of States’ rights, there continues to be only one avenue open to them through
which to institute constitutional change. The States gained no new rights at
Federation, and none in pursuance of the Statute of Westminster, though
incontemporary interpretation, the statute is relied upon as the forerunner to
the Australia Acts- self-evidently in error of law.
Invalidity of the Queensland Governor after 1986
The Magistrate erred in law and was in error of process by not taking into
account the requirement of Section 53 of the Queensland Constitution and in
not giving adequate consideration to the issue of the validity of the
Australia Act 1886. The validity of the Weapons Act 1996 depends on this.
The Governors position being subject to change as the Queens
representative is caught by section 53 of the Queensland
Constitution.
Certain Measures to be supported by referendum
In Section 53 the Queensland Constitution states: - 53(1) a Bill that
expressly or impliedly provides for the abolition of or alteration of the
office of the governor, or that expressly or impliedly in any way affects
any sections of this act namely Sections 1,2,2A,11,11B,14: and This section 53
Shall not be presented for assent by or in the name of the Queen unless it has
been first approved by the electors in accordance with this section and a bill
so assented to consequent upon its presentation in contravention of this
sub-section shall be of no effect as an act
Section 53 expressly provides protection to the office of Governor, it
even uses the words "in any way". Sec 53 specifically protects any change to
section 11 Office of Governor. The Queensland Constitution states in Section
11 b, Governor to conform to instructions, that the Governor cannot give
assent to Bills which are repugnant to the Queen’s Instructions and those
instructions are where our Constitutional Protections are formally
entrenched.
The validity of the Australia Act of Queensland thus turns upon the
observation and compliance with section 53 of the Queensland Constitution
Act.
There was no compliance by the Queensland government of the day, not
having submitted the Australia Act (Requests) Act accordingly to referendum as
required by law thereby rendering it void ab initio.
"Constitution's Royal Instructions to the Governor," (Imperial) cls 7-10,
page 600 (vol.ii) Part vii: DESCRIPTION OF BILLS NOT TO BE ASSENTED TO -
Governor shall not, except in the cases hereunder mentioned, assent in our
name to any bill of the following classes:- 1. Any Bill for the divorce of
persons joined together in holy matrimony. 2. Any Bill whereby any grant
of land or money, or other donation or gratuity, may be made to himself.
3. Any Bill affecting the currency of the state. 4. Any Bill the
provision of which shall appear inconsistent with obligations imposed upon us
by treaty. 6 ..... unless the same shall be repugnant to the Laws of
England, or inconsistent with any obligations imposed upon us by treaty.
On the point of observation of due process Sir Joh’s Speech is quite lucid
vis: By this unique legislative means, it has been possible to resolve the
legal and political difficulties inherent in the historic step we are
taking.
The Governor having been reduced to the level of a State commissioner as
an intended outcome of the Australia Act for the purpose of fulfilling
legislative format points to the nub of State executive intent in direct
confrontation with the rule of law.
To Quote Lord Justice Laws in an analogous case " here lies the real
issues in the case. I will deal first with (the) submission that a Colonial
Legislature, enjoying power to make laws for the peace, order, and good
Government of the territory where it possesses jurisdiction is by our law not
the agent or delegate of the body which created it... but this submission has
no teeth unless it is intended to persuade.... that the Commissioner may
legislate absolutely as he chooses. Such an argument would of necessity
suggest that an (legislation) is valid irrespective of the terms of (any prior
enabling constraints)... so understood the submission merely invites our entry
into a barbarous world where there is no rule of law; the commissioner would
be above the law..." Secretary of State for the Foreign and Commonwealth
Office, R v. [2000] EWCA 78 (3rd November, 2000)
He continues, having cited Burrah (1878) 3 app 889 Here then it was
plainly accepted that a legislature created by a measure passed by a body,
which is legally prior to it, must act within the confines of the power
thereby conferred. With great respect I would say nothing could be more
elementary ... there is... a risk of some obfuscation arising from
descriptions of bodies in the commissioners position as a legislature, even a
sovereign legislature. Certainly he legislates, but he does so only within the
powers conferred upon him by a higher authority. This argument that the
commissioner (Governor) is not the agent or the delegate of the Queen is
wholly bloodless.
And further: "neither an appeal to those dicta which assert that a
colonial legislature is neither an agent nor delegate of the imperial
parliament (or the Queen in Council) nor any reliance on the Colonial laws of
Validity Act can suffice to enlarge the power of the Commissioner (Governor)
to make laws beyond what (a true construction of the enabling act allows)
However broad the power in point of theory if the chosen last is (for our
purposes is the Queensland Constitution Act) the boot can be no bigger".
In other words there can be no legal basis for positivist
expansionism.
It follows thereby that the assent to in reference to this particular
matter –the Weapons act of Queensland- by a government functionary, whose
legal capacity is reduced to that of titular identity, cannot lawfully
complete the process of ANY legislation – which remain at law un-assented and
non viable
I submitted a copy of Section 53 of the Queensland Constitution, an
extract out of Hansard 26 September 1985, Queensland- the speech by Sir Joh
Bjelke Petersen on the AUSTRALIA ACTS (REQUEST) BILL , a copy of UK Secretary
of State for the Foreign and Commonwealth Office, R v. [2000] WCA 78 (3rd
November, 2000) Case No: CO/3775/98 and an article - National Gun laws and
Constitutional Matters and the prerogative of the Crown, to the Magistrates
Court
I would like to bring to the courts attention certain provisions of the
Australia Act (Requests) Bill 1985 of Queensland and the Constitution (Office
of Governor) Act 1987 No 73. That identified precisely as it purported intent
to repeal in 3b, Section 13 Provisions of Former Acts Respecting the Allowance
and Disallowance of Bills Reserved, Order in Council Section 14 and the
subsequent effect on the position of the State Governor and the validity of
legislation subsequent to 1987 in Queensland.
Both were passed by the State of Queensland but were null and void as they
affected the Office of the Governor and did not go to referendum as required
by Section 53 of the Queensland Constitution
In ascertaining the true meaning behind an act (Pepper v Hart) a reading
of the Queensland Hansard of 1985, provides lucid material. Through out the
body of the speech, being by the Premier and treasurer at the time, the
Honourable Sir Joh Bjelke-Petersen, it is manifest that the Australia Acts
(Requests) Bill was predicated upon the evasion, scienter, of constitutional
process as by law established. The purpose of the Act and extra-Constitutional
facilitations are precised in the opening remarks as follows: "This Bill is
the first stage in the implementation of the agreement reached between all
State Governments and the Commonwealth Government to remove the constitutional
links which remain between Australia and the United Kingdom Parliament,
Government and judicial system and to substitute new constitutional provisions
and procedural arrangements….. following extensive consultations that have
taken place over a number of years between the Commonwealth, State and United
Kingdom Governments and Her Majesty The Queen. In those discussions, the
Queensland Government has at all times played a leading role"
The intent of the Australia Act (Requests) Bill as derived from Sir Johs
speech was to sever UK Parliamentary jurisdiction over Queensland and by doing
so dissemble the crown in right of her Majesty. The use of parliamentary
material to elucidate the intent of legislation is sanctioned in Pepper V
Hart
In his speech Sir Joh says "A major change to be effected by the Australia
Acts concerns State Governors. Except for the power of appointment and
dismissal of State Governors, Governors will be vested with all of the Queen’s
powers and functions in respect of the States. Her Majesty will, however, be
able to exercise any of those powers and functions when she is personally
present in the State".
He also says that "Subclause (5) removes section 11B of the Constitution
Acts (Queensland) its references to instructions to the Governor from the
Privy Council or a Secretary of State in the United Kingdom. The instructions
that were contemplated by section 11B concerned the reservation of Bills, and
clause 9 of these Australia Acts ensures that there will in future be no need
for, or possibility of, reservation. The other provisions of subclause (3)
remove further references to the signet. Subclause (4) makes a purely
consequential amendment to section 14 of the Constitution Acts, in view of the
amendment of section 11B".
The intent of the Australia Act had a two-fold effect.
Sever the jurisdiction of her Majesties UK parliament thus dissembling the
influence of Her Majesties Crown over Australia yet some how vest purported
residual power of Her Majesty in the State Governors.
Surely the first port of call insofar as consultation would be necessarily
the population of Australia, in any case, the voters of Queensland, given the
magnitude of the intended outcome. Such consultation would have to be fostered
community discussion and resulted in an informed vote at referendum. However
the discussions, as revealed is Sir Joh’s speech, having been conducted over a
number of years, it could not be said it was due to inadvertancy that the
electorate was not consulted. This becomes glaringly obvious as Sir Joh
continued to elaborate on the collaborative methodology:
The form of relevant legislation has been agreed by all Governments.
Ultimately, the key elements will be an Act of the Federal Parliament and more
significantly, in our view, an Act of the United Kingdom Parliament, each to
be known as the Australia Act, and each identical in all material respects.
The two Australia Acts will be proclaimed to come into operation
simultaneously. By this unique legislative means, it has been possible to
resolve the legal and political difficulties inherent in the historic step we
are taking.
The last sentence, in particular, of the above paragraph needs no
elaboration, for it admits of intended constitutional evasion by the parties,
the word ‘resolve’ being only euphemistic for ‘avoid’, ‘evade’; ‘legal and
political difficulties inherent’, again, euphemistic for ‘constitutional
question put to the people under section 53 which may not be returned
favourable to executive intent’, and ‘historic step’, for profound change of
direction- and as can be seen from the text in effect a revolutionary
redistribution of the executive power of the Head of State by redefining the
role of the Monarch- to be given the purport of law if and when passed by the
respective legislatures. In short a populist revolution by executive hand, and
control of executive government thereby.
Sir James Stephen wrote, in 1883, of a class of offence against internal
public tranquility "not accompanied by or leading to open violence." His
article 94 on the subject, published in his digest, at p 298, 299 of his
History of the Criminal Law, subtitled "Presumption as to Intention", states
as follows: "In determining whether the intention with which words are spoken,
any document was published, or any agreement was made, was or was not
seditious, every person must be deemed to intend the consequences which would
naturally follow from his conduct at the time and under the circumstances in
which he so conducted himself"
The following elements of the Honourable Premiers speech provide further
substantive material. Sir Joh continues, regarding the manner and form devised
for the purpose:
In accordance with the agreed procedure and to satisfy constitutional
requirements, before the Australia Acts can be enacted, the Parliament and
Government of every State will-
request the Commonwealth Parliament, pursuant to section 51(38) of the
Commonwealth Constitution, to enact its Australia Act:
request and consent, in accordance with constitutional convention, to the
United Kingdom Parliament enacting its Australia Act; and
request and consent to the Commonwealth Parliament in turn requesting and
consenting to the United Kingdom Parliament enacting its Australia Act. The
request and consent of the Commonwealth Parliament to the Australia Act of the
United Kingdom is required by section 4 of the Statute of Westminster.
Leaving aside the separate substantive issues raised at this juncture, it
is, inter alia, completely counter to the principle and interests of "peace,
order and good government" that executive governments would choose to
institute revolutionary change by constitutional brummagen. No authority can
be found for evading legislative due process as by law established. No claim
as to "act of state" of " shield of the Crown" can apply. Clearly, an evasion
of legislative due process in the formation of legislation is a subversion of
it. The method arrived at as set out in the text of the Honourable Premier and
Treasurers speech for the purpose of enacting the Australia Act into law,
shows clearly a subversive stratagem. Subvero, in Latin, means to overthrow,
overturn. For each punctilious circumvolution accorded the propose of
attainment of legislation, and ultimately, constitutional, objective, speaks
unambiguously to subversive intent, particularly when already lawful avenues
are provided by relevant Constitutions , that being section 53 of Queensland’s
and Section 128 of the Commonwealth’s. It follows that, a fortiori, the intent
of the Australia Act, given it’s meticulous anfractuosity in avoidance of
proper constitutional provisions, is to overthrow, overturn the powers of the
executive government of the States as by law established, readily apparent
from a reading of it’s provisions, especially Section 7, shortly to be
examined.
Lord Halsbury, in 1907, held, inter alia, that is was ultra vires of the
constitution and the part 4 to attain a legislative objective which alters or
abrogates fundamental Constitutional ethic, in that case, by means of
secondary legislation. Though the matter in issue was the legality of the
Australian Judiciary Act 1903 (C’wealth), which effectively abrogated right of
appeal to the Privy Council, infringing the prerogative, as was found, his
Lordship went on to say that any such act "was outside the power of the
Federal Legislature. And in my opinion it is outside their power to do that
thing in a roundabout way." (our emphasis) (Webb v Outram (1907) AC at page
92) The point here being that unlawful legislative device does not give rise
to valid law.
The intent of the Australia Act, as stated herein, of the Honourable
members speech, and which at once is also revolutionary of section 7: "A major
change to be effected by the Australia Acts concerns State Governors. Except
for the power of appointment and dismissal of State Governors, Governors will
be vested with all of the Queen’s powers and functions in respect of the
States. Her Majesty will, however, be able to exercise any of those powers and
functions when she is personally present in the State. In the appointment and
dismissal of State Governors, and in the exercise of her powers and functions
when she is personally present in a State, Her Majesty will be directly
advised by the Premier of the State concerned. The Australia Acts thus
establish the constitutional role of the Premiers in directly advising the
Queen. Her Majesty has already expressed her concurrence in this development,
by which the role of the Crown will be adjusted to suit the needs of the
Australian Federation."
Again the last sentence, emphasised admits of three declaratory elements
and extra-constitutional illapse: the word ‘ development’ here operates as a
diastem, contra-distinctive to the surrounding form, and giving rise to
constitutional opportunism in the nature of the outgrowth- apophysic to the
body of the Constitution, not bound by it’s confines, and only tangential to
it. Given Her Majesty has concurred to such a constitutional phenomenon in
what capacity can such concurrence be viewed? By prerogative? In which case
such constitutional expediencies having historically received purported legal
life, (but) on the basis of derogation are ultra vires; or by personal accord,
on the basis of ill advice? On either view, there is no scope for Her
Majesty’s capacity for consilience in extra- constitutional formulations, and
the ‘development’, given it’s unorthodoxy, gains no legal mileage by it,
remaining constitutionally tumescent. Elsewhere, in the text of the speech,
this arrangement is termed ‘unique’. The ‘uniqueness’ of a law is tantamount
to selective application, and as at once admissive of subversion of legal
principle.
On the basis of this constitutional excrescence (as in foreign growth,)
the "role of the Crown is to adjusted". The role of the Crown having been
defined by centuries of settled law, cannot be adjusted by what is tantamount
to private agreement, for any purpose. The basis of the word ‘adjust’ is to be
found in the French language, and in this context admits of refashioning- a
‘refashioning of the Crown to suit the needs of the Australian Federation’, to
paraphrase. Any re-making of the powers of Her Majesty without the approval of
the people of the UK and Australia, Ireland, Canada, New Zealand and
Newfoundland, would be void in se, and any ‘re-vestment’ of the Monarch’s
legal powers in a primary capacity (de jure), without popular upheaval, or
succession as by law established is unknown to it, and simply amounts to an
accoachment of the Royal Power, notwithstanding concurrence of the sitting
regent, howsoever arrived at. Although the term is old fashioned, it is
entirely pertinent to the situation. Similarly, the Bible is not contemporary
origin, but its principles cannot be escaped.
The word ‘need’ begs the question: What is so abberative about the
Australian Federation in contrast to Canada’s that our State Governor’s should
be assigned the chatelaine of royalty? If a deficiency did in fact exist in
the concept of a royal federation, would not Canada have cause for similar
‘adjustment’? Why is there no ‘Canada Act’? Moreover, such ormolu appears to
have descended also, in essential capacity upon the uncomplaining shoulders of
the State Premiers. It is to be seen that Her Majesty’s constitutional powers,
which, exercisable as Head of Executive Government for the State (and the
Commonwealth), and are the source of legislative government in this country,
and intrinsic to lawful legislation and common law accountability all
government- State and Federal- are to be abrogated by ecliptic deference to
proviso of the Premiers’ permission. This is couched as follows: "Whilst Her
Majesty will be able to exercise any of her powers and functions normally
performed by the Governor when she is personally present in the State, all
State Premiers have expressly concurred in an undertaking that Her Majesty
will be only formally advised to exercise those powers and functions, when in
a State, where there has been mutual and prior agreement between the Queen and
the Premier.
If one reverses, in the above paragraph, the words ‘be only’ to read ‘only
be’, the positive meaning of the statement becomes manifest. Obviously,
because it is not law, "it is expected that this will become accepted as a
convention governing the circumstances in which the Queen will exercise such
powers." (ibid) Also known as ‘legal fiction’.
The Governor, having thus acquired new soverainete, the legislature,
particularly in Queensland, need no longer be apprehensive as to any
questionableness at law, of it’s bills under the previously received
strictures of burdensome manner and form requirements such as the withholding
of assent, or signification of Her Majesty’s Pleasure. The previous
restrictions purportedly no longer applicable by the putative gloss of the
Australia Act, assent is automatic, in virtue of the Governor’s novel role en
regle- Her Majesty’s position as supreme legislator rendered purportedly
redundant thereby. Thus: "The Governor of a State in future will be able to
assent to all laws enacted by the Parliament of a State. The Governor will no
longer be required to withhold assent from certain types of Bills, nor will
any Bill be reserved for the signification of Her Majesty’s pleasure. In
future, Her Majesty will not be able to disallow an Act to which the Governor
has assented …. (nor) shall any State Act be suspended pending the
signification of Her Majesty’s pleasure."
The substance of the alterations as quoted, effectively redefine the
concept of our Queensland Constitution Act, which, pursuant to definition by
its preamble, is grounded upon the principle of Constitutional Monarchy. In
light of the above innovation, it is impliedly re-written in its grundnorm,
and speaks thereby to an imperium, detached from Her Majesty’s constitutional
government. It is no surprise, therefore, to find an oblique admission, by way
of general declaration, to that effect: "The Australia Acts also make
necessary consequential changes to the Constitution of this State, and to
similar constitutional provisions in Western Australia."
The two are non sequitur for the severance of legislative jurisdictional
ties with Her Majesties Parliament of the UK and all justiciable references
thereby in so far as the Privy Council’s position effectively empties any
representation of Her Majesties government in Australia. The States cannot
have it both ways- they cannot claim to be independent sovereign entities
under the Australia Act and yet remain part Colonies for the Convenience of
claiming residual Vice –Regal power by their Governors: Vis "residual
executive powers of the UK government with respect to the states will be
terminated" Speech of Sir Joh
The Governors cannot thereafter claim to be representatives of a colonial
power for that is the entirety of their role. They were and are not
representatives in their own right or in right of the State, for the State
executive post Australia Act is no longer the Crown.
What mechanism is therefore left to vest the State Governors with residual
vice –regal power? None but a fiction empty of any substantive law.
If the Australia Act 1986 is invalid in Queensland then the Colonial Laws
of validity Act (1865) still applies.
5.11 Wherefore art the referendums?
PRECEDENT AND INHERITED LAWS
The Magistrate erred in rejecting my arguments on Magna Carta and the Bill
of Rights. Earlier Courts may have refused to accept these arguments however
just because a decision has been made in the past doesn’t mean it is correct.
Terra Nullius was accepted for 200 years. It is now regarded as legally
wrong.
As an Australian I am a subject of the Queen, and am entitled to the
protection of the Crown and the charters such as Magna Carta, which guarantees
the inalienable right of trial by jury.
In Essenberg v Queen in the High Court Judge McHugh J states that
"Magna Carta and the Bill of Rights are not documents binding on Australian
legislatures in the way that the
Constitution is binding on them. Any legislature acting within the
powers allotted to it by the
Constitution can legislate in disregard of Magna Carta and the Bill
of Rights. At the highest, those two documents express a political ideal, but
they do not legally bind the legislatures of this country or, for that matter,
the United Kingdom. Nor do they limit the powers of the legislatures of
Australia or the United Kingdom."
This judgement is contradictory to many High Court and Queensland Supreme
Court Judgements given previously where the Common Law, The Magna Carta and
the Bill of rights have been introduced as precedents.
A precedent is defined as a judgement or decision of a court of law cited
as an authority for deciding a similar set of facts; a case which serves as an
authority for the legal principle embodied in its decision.
In the High Court precedent of PLENTY - v - Dillon (1991) 171 CLR 635 F.C.
91/004 the court traces the history of the law and supporting rulings
(precedent) back to the Magna Carta in 1215 A.D.
The judgement of Lord Camden in Entick v Carrington (1765) was introduced
into Plenty v Dillon by the High Court and therefore became a case which was
used and may continue to be used by Australian Courts as a precedent.
In Stanbridge v The Premier of Queensland [1995] QSC 201 (25 August 1995)
Mackenzie J said "In the recent Court of Appeal decision of Criminal Justice
Commission v. Nationwide News Pty Ltd (1994) 74 A. Crim. R. 569, 584 Davies
J.A. said:- "The purpose of article 9 was in my view to ensure that what
was said and done in the performance of the functions of Parliament .... was
free of sanction by a Court. Otherwise the business of Parliament could not be
freely conducted."
In Pepper (Inspector of Taxes) v. Hart (1993) AC 593, 638 Lord
Browne-Wilkinson said:-"... the plain meaning of article 9 ... was to ensure
that members of Parliament were not subjected to any penalty, civil or
criminal, for what they said and were able ... to discuss what they ... chose
to have discussed."
How in Stanbridge v the Premier could Wayne Goss claim Parliamentary
Privilege if the Bill of Rights is no longer valid?
In the matter of Brofo v Western Australia (1990) 93 ALR 207, there was
much discussion of the Acts which bind the Crown.
Holding v Jennings (1979) VLR, records that the Victorian Supreme Court
upheld Article 9 of the Bill of Rights of 1688
In the High Court matter of Television Company v ALP - with regard to the
ban on political speeches just before an election the High Court upheld the
common law right of free speech.
In the USA in EMERSON v UNITED STATES OF AMERICA Judge Cummings SR goes
into some detail on the history of the Right to bear arms, the Bill of Rights
and the Rights of the American colonists.
Others cases where the Magna Carta is an issue are Commonwealth of
Australia V Yarmirr 1999 (FCA 1688 3 December 1999), Egan V Willis 1998 (HCA
71 –19 November 1998), Jago V District Court of NSW 1989 (168 CLR 23 F.C.
89/041)
Other cases where the Bill of Rights is relied on are Queen V Murphy 1986
Vol 5 NSW LR pg 18, Queen V Jackson 1987 Vol 8 NSW LR pg 116, AMA V Minister
for Health and Community Services 1992 – vol 26 NSW LR pg 114, Franca Arena
NSW MLC V NSW Standing Committee on Parliamentary Privilege and Ethics-
7/11/1997, and (article 10) Smith V Queen 1991 Vol 25 NSW LR p 1 annex C
The Bill of Rights and other Imperial Charters were introduced to
Australia when it was a colony.
The Australian Constitution is affected by Article 9 of the Bill of
Rights. "the Constitution S 49, provides that, until declared by the
Parliament itself, the privileges of the Commonwealth Parliament and of its
members and Committees are those of the House of Commons in the United Kingdom
as at 1901. The relevant privilege in the United Kingdom upon which counsel
acting on the instructions from the President of the Senate rely is declared
by the Bill of Rights 1688 art 9. There is no contest that the Bill of Rights
is presently part of the law of Australia. Commonwealth V Colonial Combing
Spinning and Weaving Co Ltd (1922) 3 (CLR 42) at 463; Sankey V Whitlam 1978
(42 CLR) at 35.
The Magistrate erred in not giving adequate consideration to the case
Secretary of State for the Foreign and Commonwealth Office v R . 2000 EWCA 78
on 3 November 2000. This recent case determines the manner in which the Magna
Carta was received into Australian Law.
A recent case from the COURT OF APPEAL OF ENGLAND AND WALES DECISIONS: THE
QUEEN v SECRETARY OF STATE FOR THE FOREIGN AND COMMONWEALTH OFFICE & anor
ex parte BANCOULT, 3 November 2000 Case No: CO/3775/98 has in the transcript
of its decision: the following passages:
".. it is clearly stated in the quotation from Bacon’s Abridgement and the
Commentaries of Sir William Blackstone ..that the writ (of habeas corpus) runs
into all parts of the King’s dominions: ‘for the King is at all times entitled
to have an account why the liberty of any of his subjects is restrained
wherever that restraint be inflicted’ (Blackstone, 1768, vol. 3, p. 131)".
and
"Magna Carta
30 I may turn now to the substantive grounds of challenge to the
Ordinance. To the extent these run into one another. The first which I will
take is the most florid: it is to the effect that s.4 of the Ordinance
constitutes an affront to the rights and liberties enshrined in Cap. 29 of
Magna Carta (I cite the modernised text given in Halsbury’s Statutes):
"No freeman shall be taken or imprisoned, or be disseised of his freehold,
or liberties, or free customs, or be outlawed, or exiled, or in any other wise
destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment
of his peers, or by the law of the land. We will sell to no man, we will not
deny or defer to any man either justice or right."
and
"25 …this document becomes and rightly becomes a sacredtext, the
nearest approach to an irrepealable ‘fundamental statute’ that England has
ever had. In age after age a confirmation of it will be demanded and granted
as a remedy for those oppressions from which the realm is suffering, and this
when some of its clauses, at least in their original meaning, have become
hopelessly antiquated. For in brief it means this, that the King is and shall
be below the law."
and
"26.This describes the enduring significance of the Magna Carta today. So
far as it is a proclamation of the rule of law, it may indeed be said to
follow the flag.".
and
"30.Reciting the argument based on Lord Mansfield’s statement, their
Lordships in Liyanage continued (284B-285B):
"Therefore the legislative power of Ceylon is still limited by the
inability (which it inherits from the crown) to pass laws which offend against
fundamental principles"
and
"71. Each of the words "peace". "order" and "good government" in relation
to a territory necessarily carries with it the implication that citizens of
the territory are there to rake the benefits."
In 1915, the High Court of Australia, through the Chief Justice [Sir
Samuel Griffith] confirmed the common law within the Commonwealth of Australia
: -"It is clear law that in the case of British Colonies acquired by
settlement, the colonies carry their laws with them so far as they are
applicable to the altered conditions. In the case of the Eastern colonies of
Australia this general rule was supplemented by the Act 9 Geo. IV.[1828] c.
83. The laws so brought to Australia undoubtedly included the common law
relating to the rights and prerogatives of the Sovereign in His capacity as
head of the Realm and the protection of His officers in enforcing them,
including so much of the common law as imposed loss of life or liberty for
infraction of it. When the several Australian colonies were erected this law
was not abrogated, but continued in force as law of the respective colonies
applicable to the Sovereign as their head. It did not, however, become
disintegrated into six separate codes of law, although it became part of an
identical law applicable to six separate political entities. The same
principles apply to the laws of the United Kingdom of general application such
as the Statute of Treasons. In so far as any part of this law was repealed in
any Colony, it, no doubt, ceased to have affect in that Colony, but in all
other respects it continued as before. When in 1901 the Australian
Commonwealth was formed, this law continued to be the law applicable to the
rights and prerogatives of the Sovereign as heads of the States as before,
subject to any such local repeal. But, so far as regards the Sovereign as head
of the Commonwealth, the current which had been temporally diverted into six
parallel streams coalesced, and in that capacity he succeeded as head of the
Commonwealth to the rights he had had as head of the Colonies. I entertain no
doubt that it was an offence at common law to conspire to defraud the King as
head of the Realm, that on settlement of Australia that part of the common law
became part of the law of Australia, that on the establishment of the
Commonwealth the same law made it an offence to conspire to defraud the
Sovereign as head of the Commonwealth. ................." per GRIFFITH C.J.,
20 C.L.R., 435-6. Also endorsed by ISAACS J. 445-6 and HIGGINS J.
454
The CONFIRMATION OF THE CHARTERS, 1297 says: "…that the Great Charters
of Liberties and the Charter of the Forest, which were made by common assent
of all the realm, in the time of King Henry our father, shall be kept in every
point without breach….we have granted that they shall be observed in all
points, and that our justices, sheriffs, mayors, and other officials which
under us have to administer the laws of our land, shall allow the said
charters in pleas before them and in judgments in all their points….And we
will that if any judgment be given from henceforth, contrary to the points of
the charters aforesaid, by the justices or by any other ministers that hold
plea before them against the points of the charters, it shall be undone and
holden for naught."
The PETITION OF RIGHT, 1627 says: in section 3. "And where also by the
statute called, The Great Charter of the Liberties of England, it is declared
and enacted, That no freeman may be taken or imprisoned, or be desseised of
his freehold or liberties or his free customs, or to be outlawed or exiled, or
in manner destroyed, but by the lawful judgment of his peers, or by the law of
the land." and in section 8. "That the awards, doings and proceedings,
to the prejudice of your people in any of the premises, shall not be drawn
hereafter into consequence or example."
The BILL OF RIGHTS 1689 mentions "evil counsellors, judges and
ministers", employed by King James the Second, who tried "to subvert
and extirpate …. the laws and liberties" of the people "by assuming and
exercising a power of dispensing with and suspending of laws..".
The Australian Courts Act 1828
The British Parliament, confirmed the application of the ancient rights
and liberties, for the benefit of the colonists when it passed The Australian
Courts Act, 1828 -ratified by King George IV:
...that all laws and statutes in force within the Realm of at the time of
the passing of this Act... shall be applied in the administration of justice
in the Courts of New South Wales and Van Diemen's Land respectively, so as the
same can be applied within the said colonies...
The Prisoner's Council Bill
In referring to the Prisoner's Council Bill, His Honour, Mr. Justice
Willis wrote: "it adds to the great constitutional right conferred by Magna
Carta, 'that no freeman shall be apprehended, or imprisoned, or banished or in
any manner disparaged, except by the legal judgment of his peers (and) by the
law of the land. The Prisoners Counsel Bill is, I think, as much the
birthright of an Englishman as the Magna Carta, the Habeas Corpus Act, the
Rill o Rights or the Act of Settlement. "
As time passed laws were enacted for the then colony Australia, laws that
decidedly carried forward the fundamental principles of all the great English
laws by simply stating: Provided always, that no such law shall be repugnant
to the Law of England
As we were British subjects at that time:- By Royal patent from Queen
Elizabeth I in 1578, Sir Humphrey Gilbert was to take possession of ‘...lands
.... all who settled there should have and enjoy all the privileges of free
denizens and natives of England’ [viz. equals British subject, today];*pg 9
By Royal patent from King James I in 1606, Walter Raleigh received thus ‘
all British subjects who shall go and inhabit within the said colony and
plantation, and their children and posterity, which shall happen to be born
within the limits thereof, shall have and enjoy all the liberties, franchises,
and immunities thereof, to all intents and purposes, as if they had been
abiding and born within their own realms of England or any other of our other
dominions.’ * p 11. Annotated ‘notes’. Further [see pp 90-1, The LEGISLATIVE
POWERS of the Commonwealth & the States of Australia: by Sir John Quick
1919]
The Bill of Rights, the Magna Carta and many other Imperial acts were
further confirmed by the Imperial Acts Application Act 1984 as being valid in
Queensland.
The Imperial Acts Application Act 1984 is a Constitutional enactment and
as such can only be altered by a referendum under the Queensland Constitution
Act 1867. Courts cannot find as fact that a Statute is not a law. The active
Magna Carta section is Chapter 29 of the Act of 1297. The Imperial Acts
application Act 1984 declares it to be so. It is res judicata.
Denver Beanland, when he was Attorney General confirmed that the Bill of
Rights was still applicable in Queensland. The current Attorney General Matt
Foley when asked by Dorothy Pratt MLA in a Question on Notice seems to have
abdicated his responsibilities to the High Court.
From the above Royal patents, the reference to people being British
subjects in any Statute means that it applies ‘throughout the Empire’.
As a Colony we inherited the Common law including the Bill of Rights and
Magna Carta. It was further confirmed by The Imperial Acts Application Act
1984 that they are still valid enactments. Since many parts of Magna Carta and
the Bill of Rights and the Common laws have been introduced by various Courts
as precedents and can thus be used as an authority for the legal principle
embodied in its decision.
In light of this the decision of Hughes J in Essenberg V Queen can only be
seen as untenable.
CLAIM OF RIGHT for a Trial by Jury
I have an honest claim of right (10.5) under the Criminal Code Act 1899 to
rely upon the Criminal Code, section 92, to say that I do not have to submit
to the Jurisdiction of a magistrate in this matter, but must be tried by Jury.
I submit my claim of right is reasonable, based as it is upon the Imperial
Application Act 1984, (5.2) Schedule 1 (1297) 25 Edward 1 ch 29, and (1688) 11
William and Mary Bill of Rights Sess 2 ch 2 Bill of Rights (13.1).
In Walden V Hensler (1987) 163 COMMONWEALTH LAW REPORTS 561 the
High Court appears to uphold Section 22 for the benefit of Mr Walden. In 1999
in Yanner V Eaton (1999) HCC 53 (7th Oct 1999) the High
Court declared the law again, and while not mentioning section 22, Criminal
Code have upheld a Magistrate’s right to recognise an honest claim of right.
(The High Court of Australia by majority, in Yanner V Eaton, upheld the
magistrate’s recognition, at Mt Isa, that the Commonwealth could legislate to
recognize individual sovereignty in an Aboriginal person.)
In the case of Yanner, the claim of right arises out of the Native
Title Act. Mine arises under the Constitution, (9.1) and the International
Covenant on Civil and Political Rights, and the Imperial Acts Application Act
1984, schedule 1 (1297) 25 Edward ch 29 (5.2). My claim of right is to be not
tried by a public servant, appointed by the Governor, but by a Jury of my
peers as I am supposed to be guaranteed, by the Imperial Acts Application Act
1984, schedule 1 (1297) 25 Edward ch 29 (5.2).
The High Court of Australia, by upholding the right of the delegates of
the people of Australia to grant sovereign immunity, to one class of people,
must now extend their decision. You must now extend that same privilege to
each and every citizen of this democracy. The Anti Discrimination Act 1991(Q)
and International Covenant on Civil and Political Rights binds the court,
individually and collectively to apply equality to all. Section 13 Crimes Act
1914, is an equally certain statement of sovereignty, as the Statute which was
relied upon by Mr Yanner.
The Anti Discrimination Act 1991 (Q) confirms, in its long title, that the
International Covenant on Civil and Political Rights is domestic law
In Paragraph 63, Justice Gummow chronicles where Mr Yanner made his honest
claim of right to the Magistrate. The Magistrate accepted the honest claim of
right as a defence and discharged Mr Yanner. This is chronicled in paragraph
64. In my case you should obey section 92 Criminal Code and not make an order
prejudicial to me. Until the question of fact of whether the Weapons Act 1990
discriminates (15.1) against me is decided by a jury unless I consent.
There can be no doubt that an equity court was required to sit with a
judge and jury in Queensland at the formation of the Commonwealth. There can
be no doubt that Section 118 Constitution gives that law full faith and credit
throughout the Commonwealth. There can be no doubt that if there is a conflict
between the law and equity, equity must prevail.
By the Judicature Acts 1876(Q) the functions in equity were vested in a
court with a jury, not in a judge. The collective conscience of 12 jury
persons was seen as equal to the collective conscience of the Church and
Archbishop of Canterbury
The evidence that juries were the norm in trials at common law, and
compulsory, in NSW in 1900, is contained in the Volume XXI NSWR 1 [1900.]
A magistrate is unable to sit without a jury without offending the Magna
Carta unless the accused grants him jurisdiction.
HALSBURY’S LAWS OF AUSTRALIA says under (130-13460): "Consent to
summary jurisdiction The consent to be tried summarily must be clear and
uniquivocal and a failure to carry out the procedures for obtaining the
consent will deprive the court of jurisdiction to determine the matters
summarily."
This provision is to prevent corruption and the usurpation of the role of
the citizen in self-government, and prevent the oppression of minorities by
majorities.
When a judge sits alone, without consent, he is an administrative officer,
not a judicial officer. He is a justice, not a judge, until he either obtains
consent to act as a judge by all parties, or empanels a jury, to give the
state power to make orders prejudicial to the sovereign members of that state.
Judges may, however give administrative directions to enable the court to be
created and brought into existence. It is not a court, until it either has
consent to jurisdiction, or empanels a jury of 12 sovereign electors to
perform the judicial function of finding fact for the court
MAY
The Magistrate erred at law in neglecting to impute a natural meaning to
Parliamentary intent where a Statute is silent – "The Weapons Act is silent on
this topic, other than at section 161." See Pepper V Hart and case Secretary
of State for the Foreign and Commonwealth Office v R . 2000 EWCA 78 on 3
November 2000.
The Authorities show that Natural meaning is to be benign and beneficently
interpreted.
The Magistrate erred when referring to Section 19 of the Justices Act
1886. The magistrate said that: These proceedings in the Magistrates Court ARE
to be summary proceedings section 19 of the Justices Act of 1886, which is the
Queensland State legislation provides that: "If in detailing an offence if not
stated to be indictable then proceedings for an offence are to be as for a
simple offence."
The above is incorrect as the most recent version also uses the word "May"
not "are"
The Justices Act of 1886- Reprint No. 6B (Reprinted as in force on 1
December 2000) says: General provision 19. Whenever by any Act past or future,
or by this Act, any person is made liable to a penalty or punishment, or to
pay a sum of money, for any offence, act, or omission, and such offence, act,
or omission is not by the Act declared to be an indictable offence, and no
other provision is made for the trial of such person, the matter may be heard
and determined by a Magistrates Court constituted, subject to this Act, by 2
or more justices in a summary manner under the provisions of this Act.
(includes amendments up to Act No. 63 of 2000)
The meaning of the word "may" in the Justices Act 1886 surely allows that
for justice for the defendant to be done the issue need not be tried in a
Summary fashion
Given that both the Magna Carta and the Bill of Rights (1688) both say
that I have a RIGHT to a trial by Jury then it would be more correct to allow
a trial by jury than to deny one.
Summary offences are only offences that "May" be prosecuted without a
jury. The operative word being "may". If one is asked for the defendant
has an absolute right to get the jury for a trial and the findings of the jury
bind the sovereign. That ensures fairness and impartiality.
The Weapons Act, section 137, part 1, has the word "may" in it.
"May" means that it is not compulsory for the offence I allegedly
committed to be tried in a summary manner. It means that if I ask for a jury
trial, that I be entitled to be tried on indictment.
WARD v. WILLIAMS (1955) 92 CLR 496 at 8. In considering the
correctness of this interpretation it is necessary to bear in mind that it is
the real intention of the legislature that must be ascertained and that in
ascertaining it you begin with the prima facie presumption that permissive or
facultative expressions operate according to their ordinary natural meaning.
"
"The authorities clearly indicate that it lies on those who assert that
the word 'may' has a compulsory meaning to show, as a matter of construction
of the Act, taken as a whole, that the word was intended to have such a
meaning"
- per Cussen J.: Re Gleeson (1907) VLR 368, at p 373.
"The meaning of such words is the same, whether there is or is not a duty
or obligation to use the power which they confer. They are potential, and
never (in themselves) significant of any obligation. The question whether a
Judge, or a public officer, to whom a power is given by such words, is bound
to use it upon any particular occasion, or in any particular manner, must be
solved from the context, from the particular provisions, or from the general
scope and objects, of the enactment conferring the power"
- per Lord
Selborne : Julius v. Bishop of Oxford (1880) LR 5 AC 214, at p 235.
One situation in which the conclusion is justified that a duty to exercise
the power or authority falls upon the officer on whom it is conferred, is
described by Lord Cairns in his speech in the same case. His Lordship spoke of
certain cases and said of them: "They appear to decide Nothing more than
this: that where a power is deposited with a public officer for the purposes
of being used for the benefit of persons who are specifically pointed out and
with regard to whom a definition supplied by the legislature of the conditions
upon which they are entitled to call for his exercise, that power ought to be
exercised and the Court will require it to be exercised." Per Lord
Selborne: Julius v. Bishop of Oxford (1880) LR 5 AC 214, at p 235.
If the legislature intended to have a Judge refuse a jury trial it would
have clearly indicated its intention in the Weapons Act. A Judge can grant a
jury trial and should not refuse a jury trial to grant a benefit to one
litigant over another, particularly when the other litigant is a fellow public
officer. In such a case "may" becomes "must", or the system is
seen to be a servant of the Executive Government and not acting impartially.
If the legislature intended that I not be entitled to a jury trial, it would
have said, "must", not "may".
The respondent's argument in the Kingaroy District Court (Essenberg v
Carne) includes the word "may". Section 161 of the Weapon's Act
provides that, "A proceeding for an offence under this Act other than
section 65 MAY be prosecuted in a summary way." The second argument of the
Prosecution was section 19 of the Justices Act, "Where an offence under any
Act is not declared to be an indictable offence, the matter MAY be heard and
determined by a Magistrates Court in a summary matter."
Where does it say that trial by Jury is precluded in my case?
"May" is a word of decided judicial import. If the discretion is not
consented to, it is the duty of the Court to treat all offences with a
possible penalty of over 3 months as indictable offences to avoid the stigma
of corruption overhanging the Court. The Criminal Code Section 204 obliges the
magistrate to set the matter down on the request of any defendant for a jury
trial, or offend section 200 Criminal Code. Refusal of Public officer to
perform duty .
In THE KING v. MITCHELL and another ( justices Of CLITHEROE ). Ex
parte LIVESEY.
A person convicted of an offence under s. 7 of the Conspiracy and
Protection of Property Act, 1875, by a Court of summary jurisdiction, or on
indictment as thereafter in the Act mentioned, is liable to a penalty not
exceeding 20L. or to imprisonment for a term not exceeding three
months.
By
s. 9 of the Act, where a person is accused before a Court of
summary jurisdiction of an offence made punishable by the Act for which a
penalty amounting to 20L., or imprisonment, is imposed, the accused may, on
appearing before the Court of summary juris diction, declare that he objects
to being tried for such offence by a Court of summary jurisdiction, and
thereupon the Court of summary jurisdiction may deal with the case in all
respects as if the accused were charged with an indictable offence and not an
offence punishable on summary conviction, and the offence may be prosecuted on
indictment accordingly
Held
by Lord Coleridge and Bankes JJ. (Ridley J. dissenting), that the
effect of s. 9 is that a person accused of an offence under s. 7 before a
Court of summary jurisdiction, who, on appearing before that Court, declares
that he objects to being tried by that Court, has a right to have the case
dealt with as if he were charged with an indictable offence and not an offence
punishable on summary conviction, and to have the offence prosecuted on
indictment accordingly.
Held,
therefore, that in the phrases" thereupon the Court of summary
jurisdiction may deal with the case in all respects as if the accused were
charged with an indictable offence" and "the offence may be prosecuted on
indictment" the word "may " is an enabling word empowering the Court of
summary jurisdiction to give effect to the right of the accused, which
accordingly that Court is bound to do.
Held,
consequently, that, upon a declaration of objection being duly
made under 8. 9, the Court of summary jurisdiction has no jurisdiction to try
the case.
Julius
v. Lord Bishop of Oxford (1880) 5 App. Cas. 214,
followed
PARLIAMENTARY SUPREMACY
The Australian constitutional system assumes that Parliament will not
interfere unnecessarily with common law rights and will recognise and protect
other rights, as the need arises.
Some judges have also said that Parliament could not instruct the courts
to act in a way not consistent with the judicial function
Between elections, Parliaments think they have an unfettered power to do
whatever the controlling party decides should be done, and that they can ride
rough shod over the people who delegate law making powers to them. Parliament
believe they are supreme,
The people of Queensland by referendum, decided in 1899, to continue the
common law tradition we inherited from English colonists.
In Calder V Bull, Chase, J: "I cannot subscribe to the omnipotence of a
state legislature…. An act of the legislature, (for I cannot call it a law)
contrary to the great first principles of the social compact cannot be
considered a rightful exercise of legislative authority." 1798 3 Dallas
386
The perception, apparently supported by our courts, that Parliament has
absolute sovereignty from the English Bill of Rights Act 1689, is
fundamentally flawed. They omit "charters" which could never be
impeached or invalidated and then brazenly claim their rights
of absolute Parliamentary sovereignty from that same Act. For without
the Bill of Rights where is Parliamentary Privilege let alone
Supremacy?
Many Sections of the Constitution entrench the power in the Monarch but
Section 9, Sub Section 61 States "The executive power of the Commonwealth
is vested in the Queen". No parliament anywhere can create a monarchy. It
is the Monarch who creates the Parliament. So who is supreme?
The Bill of Rights (1688) was a peace treaty that replaced the abdicated
Monarch, James II with William and Mary. It also confirmed the Common laws and
Magna Carta and corrected abuses that had been done by James II.
Throughout the Bill of Rights, and the acts making up the 2 sessions of
Parliament, including the oath of supremacy, the people acknowledge the
monarch as the Head of state, having final say.
Parliament was enacted into statute in a position of checks and balances
to the Royal prerogative but at no time was the royal prerogative stripped
from the monarch
If Parliament were supreme why is there a need to have the sovereign (Via
the Governor) give royal assent to legislation before it can become law?
Because that is one of the checks and balances to protect people from tyranny.
The Federal Parliament and the state Parliaments are not sovereign bodies.
They are legislatures with limited powers. Any law they attempt to pass in
excess of those powers is no law at all. It is void and entitled to no
obedience.
Any laws Parliament makes must be in accordance with the recognised
principles of representative democracy, constitutional law and the rule of law
" For the Parliament to develop or improve on a fundamental right is
one thing. But to enact legislation which expressly removes an already
existing fundamental right, and to have that enactment blindly upheld by a
Court, is quite another"
" If there is one thread which runs through the whole turbulent history
of British constitutional development, it is the belief that we are the
servants of fundamental constitutional rules which were there before us and
will be there after we are gone. From the days when the King’s subjects
demanded respect for the laws of King Edward the Confessor, through the
centuries in which legendary superiority attached to such acts as Magna Carta,
the Petition of Right, the Bill of Rights, the idea of our ancient rights and
liberties has determined the form of our endlessly progressive/conservative
constitutional change." (Allott, The Courts and Parliament Who Whom?
(1979) CLJ. at 114)
If Parliament has the power to make a legally binding command, no matter
what the subject matter of that command, then it is entirely possible that a
direct conflict will arise between the duty to obey the law and the moral duty
not to obey wicked laws. This conundrum was solved in earlier times by the
social contract. If the sovereign failed to protect the people in the
enjoyment of their basic liberties, then it breached its’ contract with its’
subjects, and the oppressive "law" could not be binding. Reliance was
placed on unchanging common law, or on the Magna Carta, a true convenant
between the sovereign and the subject.
The Australian Parliament claims its rights and privileges from the Bill
of Rights 1689 (1 Will & Mary sess 2 c 2 1689) which demonstrated that the
victors in the Revolution had sought to protect, not to change, the
fundamentals of the constitution. The framers of that document were simply
declaring common law that already existed and would continue to exist.
The Bill of Rights was only preserving the supremacy of Parliament over
any future Monarch who might feel disposed to assert the opposite. Parliament
is sovereign in that sense, not in the sense that it is incapable of doing
wrong or that no one may question the validity of an Act of Parliament.
Surely the framers of the Bill of Rights did not intend to enshrine
parliamentary superiority in clause 9 and allow subsequent parliaments to
eliminate the freedoms given to the people in clause 7 of the Bill of Rights
and clause 29 of the Magna Carta (1297). After all the freedoms of Magna Carta
preceded the existence of Parliament by several hundred years.
Freedom to discuss without legal sanction is hardly Parliamentary
Supremacy for that is all that is allowed by the Bill of Rights (1688) - A
PARLIAMENT has the power, conferred by its Constitution, "to make laws for
the peace, order and good government" but "a law in excess of the
authority conferred by the Constitution is no law; it is wholly void and
inoperative; it confers no rights: it imposes no duties; it affords no
protection…… To be valid and binding they must be within the domain of
jurisdiction mapped out and delimited in express terms, or by necessary
implication, in the Constitution itself. What is not granted to the parliament
of the Commonwealth is denied to it." (The Annotated Constitution of the
Commonwealth of Australia by Quick & Garran, p 346).
According to Dicey’s theory of Sovereignty Parliament had absolute power
no matter that a statute trampled on ancient constitutional principles or flew
in the face of deep rooted customs or the morals of the people.
Dicey could not cite a single case in support of his absolutist view
The position of Parliament is not one of legislative omnipotence Bonham’s
case in 1609 and R v Love in 1651 described Parliament’s competance as being
subject to limits. Parliament cannot make a law rendering lawful murder, theft
or perjury. Because the very concepts presuppose illegality so that a statue
purporting to make such acts lawful would be a contradiction and a void law in
itself.
Coke The common law will control acts of Parliament and sometimes adjudge
them to be utterly void: for when an act of Parliament is against common right
and reason, or repugnant, or impossible to be performed, the common law will
control it, and adjudge such act to be void.
Ouster clauses
Anisminic Ltd v Foreign compenation Commission. Here the statutory
provision at issue declared that a determination of the commission "shall not
be called into question in any court of law" The courts have consistently
ruled against clauses that Parliament has attempted to use to oust the
jurisdiction of the courts.
ENTRENCHMENT
Entrenched Provisions are laws enacted that may not be repealed or
amended, or the affect of which may not be altered, by Parliament unless it
follows a special, additional procedure, such as approval by the majority of
electors at referendum or approval by a two thirds majority in the Parliament.
The entrenchment of a law reflects Parliaments intention to protect a law that
it considers to be of special significance, by inhibiting a successor
Parliament’s ability to amend the law through the normal law- making
procedure.
The entrenchment of a law usually occurs by a substantive provision (the
entrenched provision) being subjected to another provision (the entrenching
provision) which states that the substantive provision may not be repealed or
affected without observance of the special additional procedure.
To fully entrench a law, the entrenching provision must also subject
itself to the same special procedural requirement before it can be amended
(that is the entrenching procedure entrenches itself.) When this occurs, the
substantive provision is said to be "doubly entrenched"
Legal,
Constitutional and Administrative Review Committee report no 13, April 99 on
the Consolidation of the Queensland Constitution- sec 2.3
Both the Magna Carta and the Bill of Rights are doubly entrenched and may
not be altered by any means
COMMON LAW
The common law, which applies in Australia, is the common law of England
as it existed in 1836, as it was translated into the colonies and as it has
developed within this colony and state in the last 148 years.
All Colonists had these rights from Britain and any subsequent Colonial
legislation was only confirming what already existed.
In the Boyer Lecture one Chief Justice Murray Gleeson on
19/11/00 said: "The common law of Australia was based upon the common law
of England. We inherited it at the time of European settlement. The word
‘common’ was a reference to the rules that applied to all citizens, the laws
all people had in common, as distinct from special rules and customs that
applied to particular classes, such as members of the clergy, or in particular
places."
Dr. David Mitchell B.A. L.L.B. Ph.D L.L.M.) Said: "We have not been
taught at school what the Common Law is, or where it is derived from. I need
to remind you that when this country was settled, they brought with them a
System of Law; a System of Rights; and a System of Constitution. That system
was based on the Ten Commandments.
Before it was joined into the United Kingdom the constitutional structure
of England was that there was a King, who was advised by a team of advisers
who had come to be called Parliament; and there was a Court System. King
Alfred decreed and declared that the responsibility of the Crown was to apply
the Ten Commandments to every question that came before them; they were to
interpret the Ten Commandments in the light of the whole of Scripture. So the
people were to find their rights - that is to say, how the court would handle
any issue - in the Christian Scriptures.
But what if a judge, who of course, in deciding his case would be
declaring the word of God, and would be declaring God’s way for handling that
particular issue -- what if the judge was wrong, either because he was bribed,
or drunk or simply he had misunderstood Scriptures? Here was a basic function
of the King’s advisers.
The basic function of the Parliament was to ensure the wrong court
decisions did not become precedents; that is to say, that wrong court
decisions were not binding for subsequent cases when they became before the
courts. So the Parliament was to tell the King what was the proper
interpretation of Scripture. Thus courts were subject to God’s Word:
Parliament was subject to God’s Word: the King was subject to God’s Word.
There were three parts of the Constitution: King; Courts; and Parliament (or
Legislature); reflecting the concept of the holy trinity. So the Constitution
of England came into existence those many years ago, and was the Constitution
when Australia was settled.
Over the years the constitutional basis was often neglected, rejected, or
forgotten. The Hon. John Howard has today, [July 1988] correctly drawn
attention to Magna Carta and our other basic constitutional documents. John
Howard said " Our basic rights have been defined over the centuries through
acts of Parliaments, decisions of courts, the ancient Magna Carta and the Bill
of Rights of the British Parliament and so forth. They are our basic rights
..."
Our rights under the old Bills and Statutes are still with us and still
live. We see from the above that: neither the courts of law, nor the
parliament, nor the government as a whole, were originally there to ‘think up’
laws. They were there to uphold THE LAW." (Based from a transcript of an
address given 1/ 7/88 @ Chapter House, Sydney NSW.)
The common law was declared by the Criminal Code Act 1899 in Queensland,
and Section 92 of the Criminal Code, gives effect to the Magna Carta C 29. It
says, Abuse of Office, Any person being employed in the public service does
or directs to be done, in abuse of the authority of the person's office, any
arbitrary act prejudicial to the rights of another is guilty of a
misdemeanour, and is liable to imprisonment for 2 years.
The case of R v Lord Chancellor ex parte Witham implies that Acts of
Parliament cannot repeal common law and our rights have fallen into abeyance
through lack of a suitable challenge.
MAGNA CARTA
The Magna Carta was a peace treaty signed in 1215 to end a civil war in
Britain. It confirmed the Common law rights of the people and corrected abuses
of law that had been done by King John. It concerns the limits and
responsibilities of Government and the legal rights of free citizens.
Although the 1215 Magna Carta treaty was reneged on by King John it was
reaffirmed by his son on Johns death and has been re-affirmed in various ways
some 38 times since it was first enacted.
Magna Carta was never a statute it was a peace treaty and not subject to
legislative amendment. The Queen confirmed that it was a peace treaty in
1997.
Ch 29 Magna Carta 1225 (2) "No man shall be disseised, that is, put out
of seison, or disposed of his freehold (that is) lands, or livelihood, or of
his liberties, or free-customs, that is, of such franchise, and freedoms, and
free-customs, as belong to him by his free birthright, unless it be by the
Lawful Judgement, that is, verdict of his equals, (that is, of men of his own
condition) or by the law of the land, (that is, to speak at once for all, that
is, the universal common law), by the due courts, and process of
law".
Magna Carta is predicated upon the auto-cephalous authority of the people
at natural law, and if it did not exist in script, would, notwithstanding,
continue to have a presence by virtue of the generic existence of the
inhabitants of the British Isles, and their descendents, and is of precatory
form, spanning generations, by virtue of self-genesis, as indeed, is all
customary law.
The Right to a Jury trial (and also private ownership of arms for defence)
was entrenched in the Bill of Rights as a re-inforcement of the
"Independence of the Jury", through the use of the Universal common law
based upon the Holy Scriptures, bought about by Williams Penn’s case in
1670.
There is the choice, therefore, between the judgment of one's peers
OR by the law of the land. And the law of the land
does not just mean enacted statute law. It involves the high principles of the
rule of law, due process of law, constitutional law, the rules of natural
justice and the principle of ultra vires. (Beyond the power).
I refer to the UK Secretary of State for the Foreign and Commonwealth
Office, R v. [2000] WCA 78 (3rd November, 2000) Case No: CO/3775/98
This is a recent case that expands on the validity of the Magna Carta in
modern law On Magna Carta- 33 It is clear that the Magna Carta is not applied
to any colony by express words; it may only be so, therefore, by "necessary
intendment". There was much argument at the Bar as to the extent to which the
Magna Carta "followed the flag". That expression appeared in a judgment in the
Canadian Supreme Court in Calder v AG of British Columbia (1973) 34 DLR
(3rd) 145, where at 203 it was said that Magna Carta "had always been
considered to be law throughout the Empire. It was a law which followed the
flag as England assumed jurisdiction over newly discovered or acquired lands
or territories." This statement, much pressed by Sir Sydney, was approved by
Lord Denning MR in R v FCO ex p. Indian Association of Alberta [1982]
QB 892, 912.
The citizens of a colony are, distinctly, the Queen’s subjects; and as
such enjoy the legal heritage of the Magna Carta.
. I will only cite Pollock and Maitland, The History of English Law
(2nd edn 1923), vol. I. p.173:
"... this document becomes and rightly becomes a sacred text, the nearest
approach to an irrepealable ‘fundamental statute’ that England has ever had.
In age after age a confirmation of it will be demanded and granted as a remedy
for those oppressions from which the realm is suffering, and this when some of
its clauses, at least in their original meaning, have become hopelessly
antiquated. For in brief it means this, that the king is and shall be below
the law."
26. This describes the enduring significance of the Magna Carta today. So
far as it is a proclamation of the rule of law, it may indeed be said to
follow the flag –
, their Lordships in Liyanage continued (284B-285B):
"Therefore the legislative power ............. is still limited by the
inability (which it inherits from the Crown) to pass laws which offend against
fundamental principles.
In pari delicto potior est conditio defentis- no action can be maintained
if illegality is relied upon to maintain the case
Bill of Rights
The 2 Sessions of Parliament assented to under the one date
13th February 1688, are inseparable and indissoluble,
re-establishing the throne of Great Britain, allowed William and Mary to
ascend to the Throne of Great Britain. It is under this, Queen Elizabeth II
obtains her authority and head of power to sit upon the throne of the UK of
Great Britain. It is established forever more as a blood covenant with all the
people of the realm.
The Monarch and the Parliament of the United Kingdom and Great Britain are
under the subjection of all the ancient religion, law, rights and liberties of
the realm based upon the Holy Scriptures.
S1. 1 W & M, 1688, Session 1 settled the Oaths and Declarations to be
taken, not only by William and Mary but also, by each and every successor of
the Throne of the United Kingdom of Great Britain.
Session 2 declared and enacted the Rights and Liberties of ALL the
Subjects and settled the succession of the Throne, before William and Mary
were declared King and Queen of the Realm and could ascend the Throne.
The Throne of England was ONLY offered to William and Mary on the strict
condition that they upheld the Ancient Laws and Customs of the Realm, these
being declared in S.2 of the Parliament 1688.
The Chapters of both Sessions of Parliament (1688) cannot be separated,
repealed, annulled or amended, because ALL are conditional to the offering and
acceptance of the Throne of the United Kingdom.
Para iv, Cap VI, S. 1, 1 W & M, (1688) enacted the said Coronation
Oath SHALL be in like manner administered to EVERY King or Queen who shall
succeed to the Imperial Throne of the Realm.
Not only does the Monarch swear an oath, but all members of Parliament,
all persons employed by the Monarch including Judges, court officials, agents,
and advisors etc, were and are forevermore required to swear the said oaths
also, to uphold and be under the subjection of all the Ancient Religion, Law,
Rights and Liberties of the Realm based upon the Holy Scriptures.
Throughout the Bill of Rights and the statutes making up the two sessions
of Parliament (1688), the people acknowledge the Monarch as the Protector of
the people, having the final say, due to a compact between God and ALL the
people, f
