JOHN, THE BARSTARDS.
THIS IS GOOD LAW , MARTIN HAS DONE A LOT OF WORK ON TOP OF WHAT THIS
OFFICE HAS POINTED OUT TO HIM.
THE SAME PRINCIPALS APPLIES TO YOU.
ITS ABOUT OUR OUR RIGHT.
IT IS AMAZING HOW BLAITENTLY CRIMINAL THESE PEOPLE ARE, JUST LIKE IS
SAYS IN THE BILL OF RIGHTS 1688. THE JUDGES WERE CORRUPT.
Essenberg v Shields
14 December 2000
Submission by Martin Essenberg
To the Nanango Magistrates Court
1. My name is Martin Essenberg and I am appearing for myself.
2. Because I am unfamiliar with advocacy I respectfully ask the court
that I may read from prepared notes for the purposes of oral argument.
3. 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 referendum was
passed in 1899. The repeal of those laws was outside the competence of
Parliament then- and I honestly believe they still are.
4. 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.
5. In Essenberg v Queen in the High Court Judge McHugh 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."
6. 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.
7. 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.
8. The High Court precedent of PLENTY - v - Dillon (1991) 171 CLR 635
F.C. 91/004 The case traces the history of the law and supporting
rulings (precedent) back to the Magna Carta in 1215 A.D.
9. The judgement of Lord Camden in Entick v Carrington (1765) which 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.
10. 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."
11. 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."
12. Freedom to discuss is hardly Parliamentary Supremacy. How in
Stanbridge v the Premier could Wayne Goss claim Parliamentary Privilege
if the Bill of Rights is no longer valid?
13. In the matter of Brofo v Western Australia (1990) 93 ALR 207, there
was much discussion of the Acts which bind the Crown.
14. Holding v Jennings (1979) VLR, records that the Victorian Supreme
Court upheld Article 9 of the Bill of Rights of 1688
15. 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.
16. 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.
17. The Bill of Rights and other Imperial Charters were introduced to
Australia when it was a colony.
18. As we were British subjects at that time:-
19. 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
20. 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]
21. 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.
22. 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.
23. 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 (attached) seems to have abdicated his responsibilities to the
High Court.
24. 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
25. From the above Royal patents, the reference to people being British
subjects in any Statute means that it applies �throughout the Empire�.
In CONCLUSION
26. As a Colony we inherited the Common law including the Bill of Rights
and Magna Carta
27. The Imperial Acts Application Act 1984 reconfirmed that they are
still valid enactments
28. 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.
CLAIM OF RIGHT for a Trial by Jury
29. 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).
30. 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.
31. 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).
32. (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.
33. 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.
34. The Anti Discrimination Act 1991 (Q) confirms, in its long title,
that the International Covenant on Civil and Political Rights is
domestic law
35. 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.
36. 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.
37. 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
38. 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.]
39. A magistrate is unable to sit without a jury without offending the
Magna Carta unless the accused grants him jurisdiction.
40. The consent to be tried summarily must be clear and unequivocal and
a failure to carry out the procedures for obtaining the consent will
deprive the court of jurisdiction to determine the matter summarily
(Halsbury�s laws of Australia (para 130-13460). 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.
41. 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
42. The difficulty that Australians are facing today is that the
Governments of the Commonwealth and of the States have meddled with the
legal system, so that no Court now sits in equity, with criminal and
civil jurisdiction combined, or has the benefit of the combined
consciences of 12 average Australians of the same peer group as those
who are before the court.
MAY
43. Summary proceedings are consent proceedings in all Courts and unless
the consent of the defendant is obtained, it is the law that a jury be
empanelled
44. 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.
45. 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.
46. WARD v. WILLIAMS (1955) 92 CLR 496 at 8.
In considering the correctness of this interpretation it is necessary to
bear steadily 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. "
47. "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.
48. "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.
49. 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 of 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.
50. 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".
51. 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."
52. Where does it say that trial by Jury is precluded in this case?
53. "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 .
PARLIAMENTARY SUPREMACY
54. 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,
55. The people of Queensland by referendum, decided in 1899, to continue
the common law tradition we inherited from English colonists. They did
not intend that once every three years we could review parliament.
56. 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
57. 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?
58. 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?
59. 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.
60. 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.
61. 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
62. 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.
63. 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.
64. Any laws Parliament makes must be in accordance with the recognised
principles of representative democracy, constitutional law and the rule
of law
65. " 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"
66. " 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)
67. 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.
68. 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.
69. The Bill of Rights was 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.
70. Sir William Blackstone mentions the importance of the Bill of Rights
and particularly clause 7:
"The fifth and last auxiliary right of the subject, that I shall at
present mention, is that of having arms for their defense, suitable to
their condition and degree and such as allowed by law. Which is also
declared by the same statute [the Bill of Rights] and it is indeed a
public allowance under due restrictions, of the natural right of
resistance and self-preservation, when the sanctions of society and the
laws are found insufficient to restrain the violence of oppression."
William Blackstone, Commentaries on the Law of England (1765), Vol. 1,
144.
71. 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. After all the freedoms of Magna
Carta preceded the existence of Parliament by several hundred years.
ENTRENCHMENT
72. 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.
73. 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.
74. 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
75. Both the Magna Carta and the Bill of Rights are doubly entrenched
and may not be altered by any means
COMMON LAW
76. 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.
77. All Colonists had these rights from Britain and any subsequent
Colonial legislation was only confirming what already existed.
78. In the Boyer Lecture one (attached) 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."
79. 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.
80. 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.
81. 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.
82. 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.
83. 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 ..."
84. 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.)
85. 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.
86. 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.
Constitutional Argument
87. I contend that the Weapons act 1990 of Queensland, under which I was
charged under section 50 cannot stand. I would raise various
constitutional points in relation to the invalidity attracting Federal
Judicial power by the defence raised.
88. In Felton V Mulligan it was held that "once federal jurisdiction is
attracted, even in a point raised in defence the jurisdiction exercised
throughout the case will remain a Federal jurisdiction" (Felton v
Mulligan (1971) 124 CLR 367 at 373, 412, 413) The Federal nature of the
matter being apparent from the claim itself. (Felton V Mulligan pg 22)
89. I contend that Federal jurisdiction having been thus invoked the
substance of my claim as to conflict of law should have been examined,
and a summary trial not proceeded with until the validity of the act in
question was determined.
90. My defence in previous trials has been consistently founded on the
question of Constitutionality.
91. All persons are equal before the law and if one person who is equal
to another asserts that the Constitution applies and another asserts
that it does not, then a justiciable dispute arises within the original
jurisdiction of the High Court of Australia by reference to Section 30
Judiciary Act 1903, and it is a dispute involving the contract between
the State of Queensland and the Commonwealth of Australia made for the
benefit of the Australian citizenry. It is a basic right of all citizens
to a jury trial in such a dispute.
92. The State of Queensland is in this matter, acting de facto for the
Federal government, and as such must exercise the Judicial power of the
Commonwealth in accordance with the Constitution and try the matter with
a Judge only by reference to section 79 Constitution, which says: The
Federal jurisdiction of any Court may be exercised by such number of
judges as the parliament prescribes.
93. If the defendant requires a jury, the Court may not be constituted
without a jury unless the defendant consents by reference to Sections 51
and 259 Supreme Court Act 1995. This Act is of full force in Federal
jurisdiction by reference to section 118 of the Constitution, which
says: Full faith and credit shall be given, throughout the Commonwealth,
to the laws, the public Acts and records and the judicial proceedings of
every State.
94. A magistrate is not a judge and as such cannot exercise a federal
judicial function at all.
95. I further contend that given the criminal tenor of the act under
which I was charged, I should be afforded a Jury Trial in that, given
the compaginated arrangements between the Federal and State Governments
under covering Clause 5 of the Constitution, the Queensland Government
is restrained from passing legislation conferring jurisdiction upon a
state court incompatible with the exercise of Federal Judicial power.
The argument of incompatibility has its foundation in the judicial power
of the Commonwealth as identified by Chapter III of the Constitution,
determined at length in Kable V the Director of Public Prosecutions of
NSW FC 96/027. The majority decision upon which I rely Attached).
96. In the case of Brown v The Queen the judges in the High Court
emphasise the important role that trial by jury has in the
administration of justice. On page 179 Chief Justice Gibbs said: "The
requirement that there should be trial by jury was not merely arbitrary
and pointless. It must be inferred that the purpose of the section must
be to protect the accused -- in other words, to provide the accused
with a "safeguard against the corrupt or over-zealous prosecutor and
against the compliant, biased, or eccentric judge"
97. He goes on to say: "the jury is a bulwark of liberty, a protection
against tyranny and arbitrary oppression, and an important means of
securing a fair and impartial trial. It is true that the jury system is
thought to have collateral advantages (eg., it involves ordinary members
of the public in the judicial process and may make some decisions more
acceptable to the public)"
98. This is a common theme in the High Court.
99. In KINGSWELL v. THE QUEEN (1985) 159 CLR 264 Constitutional Law
(Cth) - Criminal Law (Cth) "Regardless of whether one traces the common
law institution of trial by jury to Roman, Saxon, Frankish or Norman
origins, the underlying notion of judgment by one's equals under the law
was traditionally seen as established in English criminal law, for those
who had the power to be heard, at least by 1215 when the Charter of that
year provided, among other things, that no man should be arrested,
imprisoned, banished or deprived of life otherwise than by the lawful
judgment of his equals ("per legale judicium parium suorum") or by the
law of the land. Modern scholarship would indicate that much of the
traditional identification of trial by jury with Magna Carta was
erroneous. It is, however, clear enough that the right to trial by jury
in criminal matters was, by the fourteenth century, seen in England as
an "ancient" right. In the centuries that followed, there was consistent
reiteration, by those who developed, pronounced, recorded and
systematised the common law of England, of the fundamental importance of
trial by jury to the liberty of the subject under the rule of law (see,
eg. Co. Inst., Part II, 45ff.; Black. Comm. (1st Ed., 1966 rep.), Book
III, pp.379-381, Book IV, pp 342-344, and, generally, Singer v. United
States (1965) 380 US 24, at p27 (13 Law Ed 2d 630, at p 633); Mr.
Justice Evatt, "The Jury System in Australia", Australian Law Journal,
vol. 10 (1936), Supplement, 49, at pp.66-67, 72).
100. When British settlements were established in other parts of the
world, trial by jury in criminal matters was claimed as a "birthright
and inheritance" under the common law and as an institution to be
established and safeguarded to the extent that local circumstances would
permit" (cf. the passage from Story's Commentaries on the Constitution
quoted in Patton v. United States (1930) 281 US 276, at p 297 (74 Law Ed
854, at p 862); Kent's Commentaries, Lecture 24, pp 1-6; Rutland, The
Birth of the Bill of Rights, 1776-1791 (1983), p.19; United States ex
rel. Toth v. Quarles (1955) 350 US 11, at pp 16-17, n.9 (100 Law Ed 8,
at p 14, n.9), and, as to Australia, J.M. Bennett, "The Establishment of
Jury Trial in New South Wales", Sydney Law Review, vol. 3 (1959-1961),
463).-
MAGNA CARTA
101. 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.
102. 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.
103. 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.
104. 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".
105. 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.
106. 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.
107. 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).
Bill of Rights
108. 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.
109. 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.
110. 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.
111. 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.
112. 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.
113. 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.
114. 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.
115. 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.
116. 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, for, as Coke�s exposition of Ch 1 of the Magna
Carta has shown: Quod datum est ecclesia, datum est Dea". "At law, when
anything is granted to God, it is deemed in law to be God�s�.." No
supremacy was given to Parliament, -NOR COULD IT BE.
117. S.2, 1 W&M, (1688) Cap. II, para VII declared William and Mary,
King and Queen; "and the said Lords spiritual and temporal, and commons,
seriously considering how it has pleased Almighty God, in his marvelous
providence, and merciful goodness to this nation, to provide and
preserve their said Majesties Royal Persons most happily to reign over
us, upon the Throne of their ancestors,�. And do hereby recognise,
acknowledge and declare, that King James II having abdicated the
government, and their Majesties having accepted the Crown and Royal
Dignity as aforesaid, their said majesties did become were, are, and of
right ought to be, by the laws of this realm, our sovereign lord and
lady, King and Queen of England, France and Ireland, and the dominions
thereunto belonging, in and to whose princely persons, the royal state,
crown, and dignity of the said realm, with all honours, styles, titles,
regalities, prerogatives, powers, jurisdictions and authorities to the
same belonging and appertaining, are most fully, rightfully and ENTIRELY
invested and incorporated, UNITED and ANNEXED".
118. This clearly declares the Monarch as having supreme power NOT
parliament. The Ancient Laws, Rights and Liberties under the Holy
Scriptures were entrenched so that no one, including the Monarch or the
Parliament, could abrogate the Ancient Laws and Customs of the people.
119. S.2, 1 W&M, (1688) Ch. II, "and they do claim, demand, and insist
upon all and singular the premisses, as their undoubted rights and
liberties; and that no declarations, judgements, doings and proceedings,
to the prejudice of the people in any of the said premisses ought in any
wise to be drawn hereafter into consequence or example".
120. SS.1&2,1 W&M, (1688) "and ALL the enactments thereto belonging,
including the Coronation Oath, the Bill of Rights, Oaths of Supremacy
and Allegiance, forms one interdependent WRITTEN CONTRACT sealed between
the Sovereign Monarch of the United Kingdom of Great Britain and ALL the
people of the United Kingdom, and the dominions thereto belonging, FOR
ALL TIME TO COME with all the Rights and Liberties asserted and claimed
in the declaration enshrined forevermore".
121. No dispensation was allowed by either party (the Monarch and the
People) to the contract. None were passed by that Parliament. The
subject�s liberties were and are to be allowed in all times to come.
122. No Member of Parliament could or can ever vote for or purport to
enact any law in derogation of Her Majesty�s Coronation Oath or in
derogation of the Sovereignty of the Queen - in � Parliament at
Westminster.
123. The Sovereign Queen - in � Parliament at Westminster. Her Majesty,
Queen Elizabeth II is bound by S. 1, 1 W&M (1688), Ch VI, (Coronation
Oath) and has sworn to govern the people of Australia according to the
guaranteed Constitutional Rights of the United Kingdom of Great Britain,
inherited by us as subjects of the Throne- (eg, the Bill of Rights and
the Magna Carta). It is Her duty to preserve the inalienable rights of
the subjects. The oath of allegiance prescribed by SS 1and 2,1 W&M 1688
bind the current members of Parliament not to derogate from the
Coronation oath.
124. The contract between the subject People of Australia and the
Monarch on the Throne of the UK of GB, Queen Elizabeth II, was
reconfirmed by the people of Australia by way of the forced Referendum
held on November 6th 1999.
125. The fact that we have contracted with the Queen of the United
Kingdom of Great Britain and Ireland "for the time being", means that
the legal requirements of the practical constitution go much further
than what was superficially approved by the people of Australia in the
referendum of 1900. The Sovereign of the United Kingdom of Great
Britain and Ireland is legally bound to abide by certain other previous
perpetual and thus never ending contracts made by her predecessors with
her people. These include the Magna Carta of 1297 and the Bill of
Rights 1688 (in as much as it does not contradict the Magna Carta of
1297).
126. The Magna Carta clearly states that "The King will not directly or
indirectly do anything whereby these concessions may be revoked or
diminished". Since the sovereign�s consent is required to make or
change any laws, the Magna Carta of 1297 is still binding on the British
Sovereign today, regardless of whatever nonsense the present highly
suspect legal profession may chose to teach. Furthermore, the Magna
Carta of 1297 authorises the people to even go so far as to make war on
the Sovereign in his own realm while ever he fails to uphold the terms
of the Magna Carta.
127. The Magna Carta states that "We have granted also, and given to all
free men of our realm, for us and our heirs for ever, these liberties
underwritten, to have and to hold to them and their heirs, of us and our
heirs for ever.
128. Under these circumstances, any nation which contracts with a
rightful heir or a lawful successor to the Sovereign of Great Britain
and Ireland, also automatically acquires the full protection of the
Magna Carta and the Bill of Rights 1688
129. All acts to the extent that they purport to confer legislative
power in derogation of the Sovereignty of the Queen � in - Parliament at
Westminster are null and void. The Government of Queensland and the
Commonwealth of Australia are, to the extent which they claim
Sovereignty, in derogation of the Queen -in -Parliament at Westminster
are de facto Governments and are therefore null and void, that is
illegal and invalid.
130. The Queensland government has the power to make rules and
regulations for the peace, order and good government of the state. That
is provided that the rules and regulations do not derogate from the
Sovereignty of the Queen- in � Parliament at Westminster and provided
that the rules and regulations do not violate the inalienable
constitutional Rights of the people of Australia.
131. To obviate all doubts and difficulties concerning the above
matters, it was expressly declared by S 12 & 13 Wm. 3, c.2, (Act of
Settlement-1701) that "the Laws of England (now the UK of GB) are the
birthright of the people thereof; and all the Kings and Queens who shall
ascend the THRONE OF THIS REALM, ought to administer the Government of
the same according to the said Laws: and all their officers and
ministers ought to serve them respectively according to the same: and
therefore all the Laws and Statutes of this Realm, for securing the
established religion, and the rights and liberties of the people
thereof, and all other Laws and Statutes of the same now in force, are
ratified and confirmed accordingly".
132. All law has to be assented to by the reigning Monarch therefore
guaranteeing no derogation from the Ancient Rights and Liberties
enshrined in SS 1 & 2, 1 W&M (1688) and the Holy scriptures.
133. If the royal prerogative is used to pass an Act which purports to
take away our rights, the judiciary are bound to take judicial notice of
it and ignore
The Royal Prerogative
134. The very beginning of the Constitution Act says we are "under the
Crown" and the Coronation Oath says that the Queen must govern Australia
and "execute Law and Justice with Mercy in all (Her) judgements".
135. I contend that the Queen was misled by her ministers in giving the
royal prerogative to Acts of Parliament that have infringed our
liberties.
136. "No prerogative may be recognised that is contrary to Magna Carta
or any other statute, or that interferes with the liberties of the
subject".
137. The courts have jurisdiction therefore, to enquire into the
existence of any prerogative, it being a maxim of the common law that
the King ought to be under no man, but under God and the law, because
the law makes the King.
138. If any prerogative is disputed, the Courts must decide the question
of whether or not it exists in the same way as they decide any other
question of law. If a prerogative is clearly established, they must take
the same judicial notice of it as they take of any other rule of law.
139. The original contract between the Crown and people can be
determined using the common-law method for the interpretation of laws by
reference to Parliamentary materials. This method of interpreting
statutes was restored by the Judgement in the case of Pepper v. Hart
(1992). It is required by the Attorney General's Practice Directions of
1992.
140. The fact that it is part of the common law, and therefore is not
subject to arbitrary change by the Judiciary was recognised by
Blackstone; "The fairest and most rational method to interpret the will
of the legislator is by exploring his intentions at the time when the
law was made, by signs the most natural and probable. And these signs
are either the words, the context, the subject matter, the effects and
consequence, or the spirit and reason of the law".
141. The will of the Convention Parliament which drafted the Bill in
relation to the subject�s rights was indicated by Sir Robert Howard, a
member of the Committee; "The Rights of the people had been confirmed by
early Kings both before and after the Norman line began. Accordingly,
the people have always had the same title to their liberties and
properties that England's Kings have unto their Crowns. The several
Charters of the people's rights, most particularly Magna Carta, were not
grants from the King, but recognition's by the King of rights that have
been reserved or that appertained unto us by common law and immemorial
custom."
142. Crown servants, such as members of the Judiciary, cannot lawfully
subvert the subject�s rights because they have only the same powers and
privileges as the people. Any attempt to do so would be ultra vires,
which means "beyond their power" and constitute the common law crime of
"misconduct in office".
143. 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.
144. Under our system of a constitutional Monarchy, any statute law
which in violation of the common law and to the prejudice of the people
is void and inoperable and should not be granted Royal assent or if it
has (because ministers have misled the governor) should be disallowed by
the Governor who took an oath of allegiance to the Queen
145. The Judges oath of allegiance is to, "do right to all man according
to law"- common law that is. He is further directed to take nothing
intro consequence or example to the detriment of the subject's liberties
(from the Bill of Rights)
146. Rights granted by imperial enactment such as Magna Carta cannot be
taken away or "overridden" by Politicians or Judges. These rights are
inalienable. It is just they are not enforced.
147. It is stated in the CONFIRMATIO CARTARUM 1297 that:
1) The Magna Carta is the common law and that
2) The Magna Carta is the supreme law. All other contrary law and
judgments are void.
148. It contained the pledge that no free man should have his rights
removed without the due process of law and the judgement of his peers.
It is taken to be the foundation of the liberties of the citizen in the
English-speaking world.
149. "Here is a law which is above the King and which even he must not
break. This reaffirmation of a supreme law and its expression in a
general charter is the great work of Magna Carta; and this alone
justifies the respect in which men have held it". --Winston Churchill,
1956
150. "Hence our �assertion is, that the King�s power of exponing the law
is a mere ministerial power, and he hath no dominion of any absolute
royal power to expone the law as he will, and to put such a sense and
meaning of the law as he pleaseth." Rutherford. Lex, Rex. QXXXVII 3,2.
And so, too, parliament, and the judiciary.
151. Chapter 29 of the 1297 charter says:
"No freeman shall be taken or imprisoned, or be disseised of his
freehold, or liberties, or free customs, or be outlawed, or exiled or
any other wise destroyed; nor will we not pass upon him, nor condemn
him, but by lawful judgement 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." Edward 1 (1297) Magna Carta
152. 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, and the rules of natural justice.
153. That fundamental principle is not repeated in the Australian
Constitution, but it has been held by the courts that it is part of our
inherited Constitutional law - see ex parte Walsh v Johnson (1925) 37
CLR 79. There is certainly a presumption in favour of liberty.
154. The Oxford Dictionary of Law (1990) defines justice as:
Justice: "A moral ideal that the law seeks to uphold in the protection
of rights and the punishment of wrongs. Justice is not synonymous with
law - it is possible for a law to be called unjust. However, English law
closely identifies with justice and the word is frequently used in the
legal system."
155. So, if it is possible for the law of the land to be unjust then the
Courts may be restricted to exactly what the law says even though that
law may be an unjust law because the courts must exercise the will of
the law makers. (ie parliament) Therefore an unjust law may still be a
valid law.
156. But there are other words in that same sentence and that is the
words "or right." So "justice or right." Or denotes an alternative and
right is defined as:
157. Right: 1. Title to or an interest in any property. 2. Any other
interest or privilege recognised and protected by law. Those are plain
words with plain meanings.
158. Therefore, there is an alternative. If a valid law can be unjust
then your interests and privileges embodied in Magna Carta are
recognised and protected by the word "right".
159. So the lawful judgement of your peers, also in Magna Carta, may
hold that while the law may be an unjust law, we are still entitled to
be protected by right.
160. Moreover, can there ever be an adequate justification for the state
depriving any person of their constitutional rights?
161. Lord Robin Cooke formerly President of the New Zealand Court of
Appeal, in an extra-judicial paper entitled "Fundamentals" (NZLJ (1988)
164,165) says: 50. "On the other hand, if honesty compels one to admit
that the concept of a free democracy must carry with it some limitation
on legislative power, however generous, the focus of debate must shift.
Then it becomes a matter of identifying the rights and freedoms that are
implicit in the concept. They may be almost as few as they are
vital...... One may have to accept that working out truly fundamental
rights and duties is ultimately an inescapable judicial responsibility."
162. Indeed, the United Nations Universal Declaration of Human Rights
declares in the preamble: "Whereas it is essential, if man is not to be
compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human right should be protected by the rule
of law."
163. ".....The rule of law." Not statutory law, Parliamentary
sovereignty or otherwise but, "....the rule of law". I.e. the Courts.
Furthermore, the Declaration expressly speaks of the fundamental human
right. And that is exactly what this court case is about - The Rule of
Law, fundamental human rights, and the Royal Charter of Magna Carta
taking precedence over a pretended Parliamentary sovereignty.
164. No Parliament has the power to extinguish the right to trial by
Jury, as it is an integral part of the Common law, which was assumed by
and controls the constitution.
165. Similarly Cap II of the Confirmatio Cartarum 1297 says that:- " and
we will, that if any judgement is given from henceforth contrary to the
points of the charters aforesaid by the Justices, or by any other
offices that hold plea before them against the points of the Charters,
they shall be undone and holden for nought"
166. So the Confirmatio Cartarum further entrenches the rights granted
in the Magna Carta.
167. The Bill of Rights 1688 is also doubly entrenched by the last
paragraph that allows no method of alteration
"And bee it further declared and enacted by the Authoritie aforesaid
That from and after this present Session of Parlyament noe Dispensation
by Non obstante of or to any Statue or any part thereof shall be allowed
but that the same shall be held void and of noe effect Except a
Dispensation be allowed of in such Statue [and except in such Cases as
shall be specially provided for by one or more Bill or Bills to be
passed dureing this present session of Parlyament" William and Mary
Prince and Princesse of Orange
168. Trial by Jury is further mentioned in Section 3 of (1627) 3 Charles
I. (Petition of Right) It says: "and where also by the statute called,
the Great Charter of the Libertes of England, it is declared and
enacted, that no freeman may be taken or imprisoned, or be disseised of
his freehold, or his liberties or his free customs, or to be outlawed or
exiled, or I any manner destroyed, but by the lawful judgement of his
peers, or by the law of the land."
169. And section 8 of this imperial enactment says:-
"that the awards, doings and proceedings, to the prejudice of your
people in any of the premises, shall not be drawn hereafter into any
consequence or example"
170. The role of the jury in the protection of liberty has been
emphasised by numerous authorities
171. Trial by Jury has been considered a fundamental safeguard of
fairness and impartiality in the administration of Justice, especially
of criminal justice. Jury trail stemmed from a deep seated conviction
about the exercise of Judicial power, that it should not in matters
affecting the liberty of the subject be entrusted unchecked to any
official, judge or administrator but should be vested in ordinary
citizens. The laws of Australia 21.6, part D, (38), pg 47
172. In the case of Brown v The Queen the judges in the High Court
emphasise the important role that trial by jury has in the
administration of justice. On page 179 Chief Justice Gibbs said: "The
requirement that there should be trial by jury was not merely arbitrary
and pointless. It must be inferred that the purpose of the section must
be to protect the accused -- in other words, to provide the accused with
a "safeguard against the corrupt or over-zealous prosecutor and against
the compliant, biased, or eccentric judge"
173. He goes on to say: "the jury is a bulwark of liberty, a protection
against tyranny and arbitrary oppression, and an important means of
securing a fair and impartial trial. It is true that the jury system is
thought to have collateral advantages ( It involves ordinary members of
the public in the judicial process and may make some decisions more
acceptable to the public)"-
174. This is a common theme in the High Court.
175. Certainly the judges were very responsive to the idea that there
shouldn't be two standards of courts in our country, arguing that to
deprive people of a right to a trial by jury and still use the courts
when you're doing that, could be impliedly prohibited from the
constitution.
176. Also "The jury system is fundamental to the administration of the
criminal law in New Zealand. It has as its basis the quality of a
collective decision made by a group of ordinary New Zealanders in
accordance with their unanimous opinion on whether or not a prosecution
brought on behalf of the community has been proved beyond reasonable
doubt." (Eichelbaum Chief Justice, Greig Justice, Solicitor-General v
Radio NZ (1994) 1 NZLR 48,51.)
177. I believe that no court has jurisdiction to conduct a trial against
me unless it accords me my right to a trial by jury. Other cases without
the accused allowed or being given the right to a trial by Jury cannot
be held as precedents and cannot affect common law.
178. The removal of Trial by Jury is illegal and is instituting a system
of martial or military law. It is introducing a second class form of
justice, one not subject to the people and subjects them to abject
slavery.
179. English Kings have been beheaded or deposed for that very
usurpation of the people�s rights, and Parliaments, and individuals,
have been bought to book for the same cause.
180. Earl Grey, in 1831; on the attempted usurpation of prerogative by
the House of Lords said:".. But if a majority of this house is to have
power, whenever they please, of opposing the declared and decided wishes
of both of the Crown and the People, without any means of modifying that
power- then this country is placed entirely under the influence of an
uncontrollable oligarchy. I say that, if a majority in this house should
have the power of acting adversely to the crown and the Commons, and was
determined to exercise that power, without being liable to check or
control, the constitution is completely altered, and the government of
this country is not a limited monarchy � but � a separate oligarchy
governing absolutely the others." Hansard debates. 3Rd series xii 1006
(May 17 1832)
181. During the Grand Remonstrance of 1641 "the commons denounced the
court (suzerain) conspiracy (inter alia) to subvert the fundamental laws
and principles of Government�"
182. And in striking resemblance to contemporary times: "They have
strained to blast our proceedings in parliament by wrestling the
interpretations�from their genuine intention. They tell the people that
our meddling (has caused schisms) when idolatrous�.ceremonies�. have �.
Debarred people from the Kingdom. Thus with Elijah, we are called by
this malignant party the troublers of the state, and still, while we
endeavour to reform their abuses, they make us the authors of those
mischiefs we study to prevent." Poole, 544-7 Eng. Const. Hist.
183. Cokes observation was the same: "The justices extended judicial
censorship over legislative acts, and , in effect, adopted Cokes idea of
the supremacy of the courts over the other departments of the Government
in applying the general doctrine that constitutional grants of power
were to be interpreted according to the maxims of Magna Carta and the
principles of the common law, and that the legislatures were limited by
superior law, both express, and implied." And so, too, the judiciary.
184. "Thus the law of the land was judicially construed to mean that no
power was delegated to the legislature to invade the great natural
rights of the individual." Haines "Natural Law Concepts.".
185. "the underlying purpose of most of these limitations was to place
the just principles of the common law � beyond the power of ordinary
legislation to change or control them." Justice Miller, Pumpelly V Green
Bay Co., 13 Wall 166, 177 (1871)
186. However importantly, the Bill of Rights (1 Will & Mary sess 2 c 2
1689) demonstrated that the victors of the Revolution had sought to
protect, not to change, the fundamentals of the constitution. The
framers of that document were simply declaring law that already existed
and would continue to exist. The preamble to the bill reads: "And
thereupon the said Lords Spirituall and Temporal, and Commons......do in
the first place (as their ancestors in like cases have usually done) for
the vindicating and asserting their ancient rights and liberties
declare...."
187. "Vindicating and Asserting?"
188. Clearly, the intent and true meaning was not to abolish their
ancient fundamental rights and liberties for a pretended parliamentary
sovereignty which is generally believed and accepted today. They were
vindicating and asserting them, and reclaiming them from a despotic King
James II who had grievously violated them.
189. Sir Robert Howard, a member of both Treby's and Somer's Rights
Committee's, said during the Bill of Rights debate;- "Rights of the
people had been confirmed by earlier Kings both before and after the
Norman line began. Accordingly, the people have always had the same
title to their liberties and properties that England's Kings have had
unto their Crowns. The several Charters of the people's rights, most
particularly Magna Carta, were not grants for the King, but recognition
by the King of rights that have been reserved or that appertained unto
us by common law and immemorial custom."
190. The intent throughout the debate was clear; - Reserved fundamental
rights.
191. The British Parliament has confirmed the continued existence of the
Bill of Rights (1688):
192. The Judgement in Pepper v. Hart in 1993 was referred to in (UK)
Parliament and caused The Speaker of the House of Commons to issue a
reminder to the Courts and all other persons of their duty to take
notice of the Bill of Rights, further confirming that it is an operative
Statute. She said; "This case has exposed our proceedings to possible
questioning in a way that was previously though to be impossible. There
has of course been no amendment of the Bill of Rights ... I am sure
that the House is entitled to expect that the Bill of Rights will be
required to be fully respected by all those appearing before the Courts"
(UK) Hansard, 21 July 1993.
Stare Decisis
193. I believe that precedents opposed to Magna Carta and the Bill of
Rights can be covered by the term stare decisis - a doctrine giving to
precedent the authority of established law.
194. However, Chief Justice Brandeis said in Di Santo v. Pennsylvania,
273 U.S. 34 (1927) 42 " Stare Decisis is not a universal inexorable
command. It does not command that we err again when we have occasion to
pass upon a different statute."
195. A decision is not binding on a subsequent Court simply because it
was made in the past. Courts are not bound as a matter of law by the
doctrine of precedent. Some decisions are to be regarded as persuasive
rather than strictly binding.
196. I believe that it is necessary to distinguish the intent of the
originators of Magna Carta and the Bill of Rights in allowing freedoms,
from subsequent decisions that may seem to limit those freedoms. Such a
distinction would allow a more restrictive scope of interpretation of
those precedents and laws. In such an important issue as trial by jury
it is not unlikely that they got it wrong.
197. Your Honour the Queen has sworn to God to uphold the Magna Carta.
Judges have sworn to God and the Queen to uphold the Common law. I ask
you to fulfil your oath to God and the Queen and give me my rights to a
trial by Jury
HUMAN RIGHTS
198. The High Court of Australia has already held that lack of
representation in a trial for a serious criminal offence is likely to
prejudice the right to a fair trial. Dietrich v R (1992) 109 ALR 385
199. An offence against the Weapons act is a criminal offence that
affects my right to have weapons for the rest of my life. There may be a
prison term involved. I have been refused legal aid and the HREOC has
previously refused my applications.
200. All gun owners who have refused to obey the New Gun Laws are all
similarly disadvantaged in the refusal of legal aid to assist my case
and the refusal of rights to trial by Jury and the refusal of the HREOC
to act. The Gun laws have become a case of Judicial co-operation in the
enforcement of Parliamentary decrees. The Judiciary is not seen to be
independent nor just.
201. That my arguments have been ignored in all previous courts
indicates that I am unlikely to get a fair trial without legal
representation.
202. I am entitled to legal representation under the Federal Legislation
of the Human Rights and Equal Opportunity Commission Act of 1986 and the
International Covenant on Civil and Political Rights
203. The International Covenant on Civil and Political Rights has been
enacted into law as the Human Rights and Equal Opportunity Commission
Act of 1986.
204. The United Nations Universal Declaration of Human Rights declares
in the preamble:
"Whereas it is essential, if man is not to be compelled to have
recourse, as a last resort, to rebellion against tyranny and oppression,
that human right should be protected by the rule of law."
205. ".....The rule of law." Not statutory law, Parliamentary
sovereignty or otherwise but, ".... The rule of law". Ie. The Courts.
206. Furthermore, the Declaration expressly speaks of the fundamental
human right taking precedence over a pretended parliamentary
sovereignty. Since Government has also ratified that UN Declaration, and
the Parliament has not expressly repealed it, logically it follows that
it must have intended to be taken seriously. (See R v Immigration Appeal
Tribunal, Ex Parte, Manshoora Bengum (1986) Imm AR 385 (QBD) Simon Brown
J.)
207. Since the laws of the Commonwealth apply to Queensland the Human
Rights and Equal opportunities Act applies to Queensland. Article 50
ICCPR. "The provisions of the present covenant shall extend to all parts
of Federal states without any limitations or exceptions."
208. Also Clause 5 of the Constitution Act UK says that all laws made by
the Parliament of the Commonwealth are binding on the Court, Judges and
People of every State not withstanding anything in the laws of any
State.
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986 (Updated as at 26
September 1995) Section 3
209. (4) In the definition of "human rights" in subsection (1): the
reference to the rights and freedoms recognised in the Covenant shall be
read as a reference to the rights and freedoms recognised in the
Covenant as it applies to Australia; and the reference to the rights and
freedoms recognised or declared by any relevant international instrument
shall:
210. in the case of an instrument (not being a declaration referred to
in subparagraph (ii)) that applies to Australia - be read as a reference
to the rights and freedoms recognised or declared by the instrument as
it applies to Australia; or in the case of an instrument being a
declaration made by an international organisation that was adopted by
Australia - be read as a reference to the rights and freedoms recognised
or declared by the declaration as it was adopted by Australia.
211. SCHEDULE 2, Section 3 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTSPART II Article 14
212. 3. In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees, in full
equality; To be informed promptly and in detail in a language which he
understands of the nature and cause of the charge against him; To have
adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing; To be tried without undue
delay; To be tried in his presence, and to defend himself in person or
through legal assistance of his own choosing; to be informed, if he does
not have legal assistance, of this right; and to have legal assistance
assigned to him, in any case where the interests of justice so require,
and without payment by him in any such case if he does not have
sufficient means to pay for it;
213. Australia is a signatory and fully committed member of the United
Nations and has undertaken to honour and obey the International Covenant
on Civil and Political Rights.
214. In 1994 Nicholas Toonen of Tasmania Australia successfully
complained that his Human Rights were violated by the Tasmanian Criminal
Code and the United Nations Human Rights Commission in Geneva upheld his
complaint and Tasmania agreed to repeal the offending legislation.
215. My civil rights have been successively violated by the failure of
the legal system in Queensland to honour and uphold the principles
outlined in the Human Rights and Equal Opportunity Commission Act of
1986. Schedule 2.
216. By Article 50 of the Human Rights and Equal Opportunity Commission
Act of 1986. Schedule 2, Queensland is bound by the Covenant.
217. The Violations that have occurred are,
218. (a) In Part 2 Article 1, I have been discriminated against by
Queensland Courts I have appeared before because I did not have legal
representation. I am in a lower socio economic class than the State of
Queensland which can afford the most expensive representation and was
thereby denied equality of opportunity to receive justice.
219. (b) In Article 2 Queensland and Australia has undertaken to promote
equality of opportunity and Queensland has in place laws, Sections 51
and 243 of the Supreme Court Act 1995 which recognise the equality of
the said Martin Essenberg with McPherson JA, Chesterman J, Boyce QC, Mr
Smith SM and Mr Lebsanft SM and require those judicial persons to obtain
the consent in writing to sit without a jury before they may make any
binding order. This Right was violated on every occasion.
220. (c) Article 5 (2) recognises the fundamental Human Right to be
adjudged by a jury of ones peers unless consent to sit without is first
had, as is the Civil Right of All Queenslanders.
221. (d) Article 7 is violated when Justice is delivered in a degrading
way, without the consent of the litigant. It is Internationally accepted
that it is not degrading to be adjudged by a jury of one's peers.
222. In Mabo v Queensland [No. 2], the High Court through Justice
Brennan's leading judgment, held that it was proper for courts in
Australia to have regard to international human rights jurisprudence in
developing the common law and in resolving ambiguities of legislation.
It was said that this was an inevitable process, once Australia signed
the First Optional Protocol to the International Covenant on Civil and
Political Rights. This action rendered Australia accountable in the
international community for breaches of fundamental rights
223. Dietrich v The Queen. There it was held that, in certain
circumstances, a prisoner facing a serious criminal charge, must be
provided with legal counsel if to deprive him or her of such expert
representation would render a trial unfair. Even more lately, the High
Court has found constitutional rights implied in the Constitution. Thus,
the right to free public discussion of matters of politics and economics
were found, in the Capital Television decision, to be inherent in the
very nature of the Australian representative democracy established by
the Constitution.
224. I believe the interests of Justice for myself and all other gun
owners require that I have legal representation. The validity of the New
Gun Laws needs to be tested properly as does the right of Parliament to
further control and manipulate what goes to Juries and what does not.
Due to lack of legal support this could not be done in my previous
trials
The Australia Act
225. 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.
226. 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.
227. However, it is necessary to include the view that by Section 11 of
the Australia Act all causes previously removable to the Privy Council,
are now properly dealt with by the High Court as a final arbiter under
Section 73 of the Constitution in superintendence of the whole of the
Court system insuring unity of the common law of Australia
228. Into this can be read the independent guardianship of the integrity
of Law including the upkeep of its founding principles. 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.
229. "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.
230. 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.
231. 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.
232. 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.
233. 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.
234. 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�"
235. 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
236. 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.
237. 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.
238. "Legislatures cannot alter or undermine the constitutional scheme
set up by Chapter III" per McHugh J Kable v DPP at page 29
239. 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
240. The corollaries are that the very pillars, upon which our system of
Justice is based, cannot be legislated away.
241. 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.
242. 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.
243. Therefore the learned Judges of the lower courts fell into
jurisdictional error by not pausing to ascertain the true status of
their guiding principle.
244. 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).
245. 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
246. The word, "Prejudicial" means harmful to rights or interests, and I
say for this trial to continue in a summary manner will be harmful to my
rights and interests.
247. 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.
248. 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
249. 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)
250. 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.
251. Turning now to the views expressed by Lebsanft SM at Kingaroy on 2
Sept 98 at page 8 of the application book the learned Magistrate,
relies, inter alia on the judgement of Gibbs J in Coe v Commonwealth
(1979) 53 ALJR 403 at 408 in which this court was evenly divided.
252. That was a case which turned upon the question of Aboriginal
Sovereignty as confined to State and Federal Jurisdiction, and in this
instance is misapplied.
253. 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.
254. In seeking to further rely on the plenaries of the Queensland
Government in the making of laws, again, has effectively failed to
address the points raised in issue.
255. 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.
256. However it is the assertions contained in Chestermans J judgement
in regard to Sir Edward Cokes Commentaries that invite some address in
detail.
257. 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.
258. Much discussion, both historical and legal has been had re The
Colonial Laws Validity Act, 1865. However, the general view that this
Act limited the scope of Colonial Legislatures to make laws repugnant
to English laws is only partially correct.
There are two types of English law. One, is Common Law. This 1865 Act
did not restrict the colonial (later States & Commonwealth, a colony by
interpretation) governments & courts creating common law unique to each
one�s area ie. each colony (State) and Australia.
Two, is Statute Law which arise from Bills passed in the Imperial
Parliament and assented to by the Crown.
However, there were three types of Statute Law of the Imperial
Parliament:-
I ) Statute Law that extends to the colonies ;
II ) Statute Law that is operative throughout the Empire ;
III ) Other Statute Laws applicable to Great Britain.
The differentiation between these types of Statute Laws is of critical
importance.
The vagaries of the interpretation of the validity of a law of a
colonial legislature, meant by the middle of the nineteenth century
(1850�s), great confusion and as to the extent of the prohibition and
vague limitations led to the Colonial Laws Validity Act, 1865 which
restricted the prohibition.
"Sec. 2 of that Act declares that any colonial law which is in respect
repugnant to an Act of the Imperial Parliament extending to the colony
(which is defined to mean �applicable to such colony by the express
words or necessary intendment of any Act of Parliament) or repugnant to
any order or regulation made under any such Act, shall be read subject
to such Act, order, or regulation, and shall, to the extent of such
repugnancy, but not otherwise, be absolutely void". Sec. 3 provides that
no colonial law shall be void on the grounds of repugnancy to the law of
England unless it is repugnant to some such Act of Parliament, order, or
regulation as aforesaid.
When this Act was passed, it was not regarded as a curtailment of
legislative power in the colonies; it took away no power previously
enjoyed; in fact, looked upon as one of the charters of colonial
legislative independence, next in importance to the famous Declaratory
Act, 18 [1778] Geo. III. c. 12, in which the British Parliament,
profiting by the lessons of the American rebellion, renounced its
intention to again tax the colonies. It removed all doubts as to the
powers of colonial Legislatures to alter or repeal the general mass of
English law, ........ .....not made operative, by Statute, throughout
the Empire. ......." [Quick & Garran, p 348]*
259. In so far as the Colonial laws of Validity Act (1865), in the
context that the learned Judge has sighted that being with reference to
Section 3 it cannot be expressly applied in isolation of section 2.
Section 3 simply re-iterates section 2, which states:
260. "Any Colonial law which is or shall be in any respect repugnant to
the provisions to any act of Parliament extending to the colony to which
such law may relate, or repugnant to any order or regulation made under
authority of such Act of Parliament, or having in the Colony the force
and effect of such an Act, shall be read subject to such Act, order, or
regulation, and shall, to the extent of such repugnancy, but not
otherwise, be and remain absolutely void and inoperative"
261. In other words, any colonial law shall be read subject to
repugnancy of Imperial Acts, allowing for the parts that are severable
from the repugnancy to stand while the remainder is void for it.
262. Section 3 reads: " No Colonial Law shall be or deemed to have been
void or inoperative on the ground of repugnancy to the law of England,
unless the same shall be repugnant to the provisions of some such Act of
Parliament, order or regulation as aforesaid"
263. This section does not stand alone by virtue of the very addition of
the final wording "as aforesaid" Had these words not been included then
the construct would plainly be independence of Colonial law irregardless
of its badness, and would render the previous section redundant. But it
is ancillary to section 2, and is not, in the obvious meaning of the
Act, have a life of its own. To read otherwise is to subvert its plain
intent. Thus, it does not derogate form section 2 but confirms it and
the canons upon which the responsibility of jus are borne, remain
acknowledged and unimpeded in the life of the colony and carried into
the Federal Compact of the States.
264. The inherited responsibility of jus, the vital substance of legal
law was acknowledged in each state by the respective Imperial Acts
Application Act, specifically in Queensland the Imperial Acts
Application Act (1984) which expressly provides for the Bill of rights,
Magna Carta and the Statute of Monopolies.
265. The 1931 Westminster Act only reaffirmed that the UK parliament
would not legislate for Australia.
266. It is now necessary to turn to the Weapons Act itself. The question
of law to be determined here, is in response to the respondent�s (in
Essenberg V the Queen in the High Court) claim that the weapons act of
Queensland is "a law validly made by the Parliament of the State of
Queensland"
267. It is contended that it is a law not validly made by the Parliament
of Queensland for being beyond the power of the Queensland Parliament to
enact such a law. That it is a law in derogation of that States own
Constitution in the light of its obligations to the federal compact
initiated by Covering Clause 5 and by Section 106, and the resultant
constraints invoked by Chapter III intra-state.
268. That the Queensland Parliament in purporting to enact such a law,
also derogated from its jurisdictional responsibility in the Federal
sense, that is incompatible with its standing as a State under the
Commonwealth Constitution, which necessarily embraces the jurisprudence
of natural justice and the obligation to maintain the integrity of the
judiciary as independent both of the legislature and executive
Government.
269. That it is also no true law due to the absence of the integral
component of jural symbiosis which prescribes lex and thus appears to be
a private law under guise of parliamentary privilege or prerogative,
devolving authority by "Act of State", seeking to create an offence
where there was none before.
270. This in itself is contrary to the implied law brought by the
colonists to NSW. For a determination, in banco, made on such Acts
during the Reign of James I by the senior judiciary of England,
comprising, Coke CJ KBD, Flemming CJ, Tannfield Chief Baron and Altham,
Baron, and delivered to his Majesty in the presence of the Privy Council
as follows " The King.. Could not create any new offence by his
proclamation, for then he may create an offence where none is, upon that
insues fine and imprisonment� it was formally declared that the king had
no prerogative but what the law of the land allowed him. By their
firmness on this occasion the Judges rendered an important service to
their country. A check was given to the exercise of arbitrary power in
this direction�"(12 Reports 74) Gardiner, History of England Volume 2
page 85, 104.
271. That by reason of all the above it is not validly enacted, nor is
it, in se, valid law.
272. The most notorious of its provisions are the sections dealing with
administration but in any event in effectively proscribing, by
affirmative regulation quiet possession and use of a nominated class of
items hitherto used with natural restraint by the majority of those
caught by its provisions the Act circumvents Judicial discretion by
implied and indiscriminate presumption of mens re without requiring
proof of actus reus, or conversely, presumption of actus reus in the
first instance without mens re and without the traditional test of
criminal guilt admitting of no true criminal jurisdiction for to quote
an axiom of Coke, "et actus non facit reum nisi mens sit re" (can�t be a
guilty of act without a guilty mind) 3 Institute 6
273. " It is of the utmost importance for the protection of liberty of
the subject that a court should always bear in mind that unless a
statute either clearly or by necessary implication rules out mens re as
a constituent part of a crime, the court should not find a man guilty of
an offence against the criminal law unless he has a guilty mind" Kay v
Butterworth (1945) 89 SJ 381
274. This is supported by the view, in the face of earlier contrary
statutory interpretations, that the "free and concious undertaking of a
course of conduct resulting in material harm" is elementsl to mens re.
Actus reus, that is the material destructive harm of pre-meditation is
estopped reading into ones state of mind for "who is to know what is on
a mans mind" to paraphrase a well known dicta.
275. And from elsewhere " for it is common knowledge that the intention
of a man will not be probed�" Bryan CJ YB 17 Edward IV
276. "Moral wickedness cannot well be imputed to a man who has behaved
as a reasonable man behaves and a reasonable man doesn�t alter his
course of conduct when he has no reasons to foresee that any harm will
come of it." Outlines of Criminal law by Cecil Turner.
277. The preceding view of mens re are supported by the findings of
Shearman J in regina v Wheat and Stocks 1921 15 CR APPR 130 at pg 132
The previous decision in this case was questioned thus "was not the real
ground of the " lower courts decision" that the prisoner had done the
thing that was forbidden by the statute, and that it was not necessary
to prove any further mens re?"
278. And by Lord Hewitt CJ in Cotterill v Pema (1936) 1 KB 63 and
others. "Actus non facit reum nisi sit mens re is a cardinal doctrine of
the criminal law" per Lord Goddard CJ, Younghusband v Lustig (1949) 2 KB
354
279. Section 3 (1) sets out the principles and object of the Act in such
a way as to preclude the liberty of the individual in subordination to
public welfare which individual liberty is further diminished by the
carrying into effect of the expressly draconian intent of subsection
(1)b
280. Section 3 can be clearly seen at bottom of page 13. " Section 3(1)
Weapon possession and use are subordinate to the need to ensure public
and individual safety"
281. And "Section 3(1)b public and individual safety is improved by
imposing strict controls on the possession of weapons and requiring the
safe and secure storage and carriage of weapons"
282. In the same way the Community Protection Act of NSW (1987) became
notorious, so the Weapons Act of Queensland also seeks to evade natural
justice by legislating away recourse to the rules of evidence under
section 147(2)a, in the case of certain appeals (pg 104), yet by section
147(2)b enjoins that natural justice be observed. This in itself makes a
mockery of due process, for how is natural justice to be applied without
full judicial adducement under the normal rules of evidence.
283. Further an appeal is only to be a re-hearing and it is to have no
bearing on a previous decision (section 147.1 Weapons Act at pg104)
284. By section 149 (page 105) an appeal is allowed to the District
court, but only on a question of law, implying that the facts cannot be
disputed for statutory pre-determination and one is left wondering what
question of law is left to arise under such a restrictive scope, unless
it was a question of ultra vires. This definitely conflicts with the
Constitutional arrangement between the Commonwealth and the States in
Chapter III, by compromising judicial power.
285. The legislative intent is that no other decision could be arrived
at but the one directed by Parliament on questions of fact and law, for
the Act precludes all other sources of legal application. This appears
strongly to be a "legislative Judgment and an exercise of Judicial
power" on the part of Parliament. These are the words of Chase J in
Calder V Bull (1799) 3 Dallas 386 whose judgement was also applied by
the Privy Council in Llynage v Queen (1967) 1 AC 259 at 291.
286. In the words of McHugh J in the High Court in Kable v DPP at pg 34.
"In the case of State Courts, this means they must be independent and
appear to be independent of their own States legislature and executive
government as well as the Federal Legislature and Government...Public
confidence in the exercise of Federal Jurisdiction by the Court of a
State could not be retained if litigants in those courts believed that
the Judges of those courts were sympathetic to the interests of their
State or its executive Government"
287. The provisions of the Act so far cited do not maintain judicial
independence, but on the contrary seek to appropriate it.
288. The analogy to Kable does not end there, for the Act intends that
the judiciary make peremptory findings preclusive of the usual line of
independent inquiry by constitutional principle, determining guilt or
innocence under criminal law yet at the same time seeks to imbue
criminality to activity which is essentially civil by nature for not
being injurious or in reckless indifference to society. Indeed, the
majority of penalties under the Act are as those for simple offences
excepting section 65 "Unlawful trafficking in weapons" (pg 65) which
prescribes extensive gaol terms.
289. The underlying and more sinister purpose of the act then, appears
to be the irregular extension of criminal faculty to the community at
large by the provisions of section 151 " disclosure by Doctors and
Psychologists of certain information" whereby medical practitioners
become compulsory informers on their patients despite any duty of
confidentiality owed" (section 151) (3)
290. This pernicious surveillance provision does not provide for any
restriction as to the category of persons covered by it, and so the
whole community is put at risk- for who at some stage in their lives
will not see a doctor. There are also no safeguards to ensure that
information is not falsified. In ostensible concern for community
welfare the Act stands to surreptitiously invade the private rights of
every individual in the Queensland Community. In pursuit of effecting
its intent of "Strict Control" the legislature sees fit to go outside
the law, and in a exercise of bad faith co-opts those in whom the
community must place their trust. The object appearing to be for the
purposes of secret file making. No consent or disclosure is provided for
nor is there any provision for any standards of assessment. Furthermore
the legislature has sought to indemnify such unlawful practice by
section 151( pg 105), but legislating for unlawful activity does not
make it any less so.
291. In contrast the Mental Health Act of Queensland 1974 provides for
the most stringent test of proof beyond reasonable doubt. It is based on
evidence adduced under normal rules of evidence before a retired Supreme
Court or High Court Justice and based on friends relatives, legal
counsel, ones private medical practitioners and a host of others privy
to ones personal situation and state of mind. 2 independent
psychologists, appointed by the Governor in Council, complete the
tribunal under that Act.
292. Under section 93(1) and (2) of the Weapons Act "how to decide
whether an Individual is an appropriate person" an "authorised officer"
inter alia, may obtain "a report from the commissioner about the
criminal history of the person" (2a) or (2b)� a report from the
appropriate authority in the other state.
293. Presumably once the "authorised officer" obtains by unspecified
manner, the selective information which in itself may be unreliable he
proceeds to act in the capacity of a tribunal though there are no
qualifications attached to his capacity other than that he can be a
Police officer appointed by the Commissioner, who, in the Commissioners
opinion "has the necessary expertise or experience to be an authorised
officer" (sec 153)(1)
294. Under section 150 (1) "the minister may constitute an advisory
council to advise the minister in the administration of this Act", and
by section 150(2) the council is also to consist of ministerial
appointees.
295. There is no way to read this provision and the one cited before it
but as euphemisms for affirmative action, given the objective of the Act
and the unsavoury methods of surveillance and information gathering and
unspecified and unqualified nature of its administration.
296. Clearly this Act is not about Community welfare but a pernicious
attack on democracy itself under the colour of Law. It is an insidious
piece of legislation, which perniciously and surreptitiously undermines
the right of civil society to live in expectation of freedom from
persecution by their government and civil authorities. While the
Community protection Act 1974 in Kable v DPP was bad for the denial of
the basic tenets of freedom for one man, this act carries the potential
to criminalise the entire Queensland community. It is malum in se (bad
in itself).
297. It is poleptic law, which provides for no real judicial
adjudication by normal evidentiary rules and is at once contemptuous of
both Commonwealth responsibilities of the State of Queensland and the
civil rights of the Community. To quote McHugh J in Kable who was
quoting Professor Williams at 38 "predicting dangerousness is
notoriously difficult" yet this act has eviscerated all but the form of
due process in its scant provisions for determination and left the
courts with no choice but to presume guilt and award the penalty
prescribed.
298. It makes a mockery of due process and of Australian democracy.
299. It also appears to be based on quia timet injuctiveness and is
after the nature of a Bill of Pains and Penalties for its persecutionist
tenor. Though it appropriates criminal jurisdiction to achieve its ends
at the same time proper criminal process at criminal law is denied,
exposing it for the piece of cozenage that it is.
300. To quote Sir Edward Coke "Every oppression against law by colour of
any usurped authority is a kind of destruction�. and it is the worst
oppression that is done by colour of Justice" II Institutes
301. While an action in the public interest may have well been brought
in another way under the Crown Proceedings Act I am not alone in
bringing such matters to the attention of the courts in this way, for
among the pages of liability of the Crown in Australia, New Zealand and
the United Kingdom by Hogg (1971) are found similar responses when an
act of the legislature purports to invade private rights. For the
purposes of this hearing it is not I that am on trial but the Act itself
and therefore the prosecution view that I am flaunting the law is not
appropriate.
302. The Weapons Act 1990 discriminates against country people. It
imposes the will of a city majority upon a country minority. The Court
has a duty to make an order, which will allow country people in
particular and all Australians, decide whether they will, at common law
accept the ruling of the Court of Queensland Parliament. If they will
not, the fact will be found that the Parliament has breached its
delegated trust to make laws for the peace order and good government of
not only Brisbane, but also all of Queensland.
Summary
303. I ask you to decline to recognise as valid, laws that conflict with
long standing fundamentals of constitutional and fundamental rights
contained in Magna Carta and the Bill of Rights.
304. I ask that you declare the Weapons Act 1996 invalid or my case
should be done by a trial by Jury in accordance with due process of law
under normal rules of evidence.
305. I ask that you make a statement on my rights to legal
representation under the Human Rights and Equal Opportunity Commission
Act 1986
Martin Essenberg Lot 7 Runnymede Est Rd, Nanango.
Dated the 14 day of December 2000
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