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Criminal Court of Appeal- Supplementary documents

IN THE CRIMINAL COURT OF APPEAL

Held at Brisbane, Queensland

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

C.A.163/01

Between

Martin Essenberg – Appellant

And

Mark Shields- Respondent

SUPPLEMENTARY SUBMISSION

    1. People as legislators: Legislation by circumvention of referendum- no standing at law

      2.

    2. Insofar as alteration or repeal of the Queensland Constitution "in the same manner and form as any other laws for the good of the government of the colony", it is to be noted that the first clause of the preamble expressly confines such provision to the Order-in-Council of 6th June 1859. There cannot, by any manner of reading be drawn any extension to the substantive provisions of the Constitution act per se.

      3. For the benefit of the court, the first clause of the Preamble is quoted in full:

      Preamble: power of alteration of Constitution.

    3. Order-in-Council, S22. Whereas by an order in Council empowering the Government of Queensland to make laws and to provide for the administration of Justice in the said colony dated at the Court at Buckingham Palace the sixth day of June 1859, it was declared and ordered by the Queen’s Most Excellent Majesty in Council that the Legislature of the colony of Queensland should have full power and authority from time to time to make laws altering or repealing all or any of the provisions of the said Order in Council in the same manner as any other laws for the good government of the colony EXCEPT so much of the same as incorporates the enactments of the fourteenth year of Her Majesty chapter 59 and of the sixth year of Her Majesty chapter seventy-six relating to the giving and withholding of Her Majesty’s assent to Bills and the reservation of Bills for the signification of Her Majesty’s pleasure and the instructions to be conveyed to Governors for their guidance in relation to the matters aforesaid and the disallowance of Bills by Her Majesty.

    4. An Order-in-Council is an order by Prerogative and is susceptible of amendment or revocation by Prerogative fiat, or by express conditions to which it is made subject within the bounds of the Prerogative, as is the case with clause II.

    5. Not so is the case of the enlivened Constitution entrenched by plebiscite and unable to be amended in its structural core without invoking same. "Non compliance with Constitutional requirements for the making of laws spells invalidity." (per Menzies J. Cormack v Cope (1974) 13: CLR 432 @ 464)

    6. The distinction between acts within the plenariness, or which are ultra vires, of Parliament, was dealt with (quite) fulsomely in 1907 by Griffith CJ, Barton and O’Connor JJ, in Cooper v Commissioner of Taxation for the State of Queensland (4 CLR 6) herinafter called COOPER. The Court was unanimous in it’s finding for due observance of the operation of fundamental law for effective validity of consequent law.

    7. His Honour the Chief Justice expounded as follows: "the distinction between what are called in jurisprudence ‘Fundamental laws’ and other laws, is……..unfamiliar to English lawyers, nor under the Constitution of England is there any such distinction. The Parliament of the United Kingdom is supreme, and can make any laws it thinks fit, and the question whether a law once passed is beyond the competency of the legislature or not cannot arise. If therefore, a later is inconsistent with an earlier law, the later must prevail. But in states governed by a written constitution this doctrine has no application. The powers of the Queensland legislature, like those of the other Australian States, are derived from the grant contained in the Order-in-Council by which it was established. No doubt the Queensland legislature had power by virtue of paragraph II of the Order-in-Council to make laws "in all cases whatsoever" but these words must be read with the rest of the Order-in-Council (that is to say, the Order-in-Council taken as a self-contained legal precept, without any bearing on that which is formed by constituency) "and clearly did not authorise the legislature, while the provisions of the Constitution remained unaltered, to make any law inconsistent with it." (again, the Order-in-Council and the Constitution being two separate areas of law) "They referred to the scope of authority under the Constitution. The re-enactment of the provisions of paragraph II in the Act of 1867 did not make any difference in this respect. The powers of the Legislature still depended on the Order-in-Council, and not upon it’s own restatement of those powers". (for the legislature cannot adopt powers out of thin air. It remains caught between its conception by Prerogative, which at once renders it a delegated body, and the provisions of the Constitution entrenched by reference to plebiscite.)…." in my opinion the legislature could not alter the Act of 1867, any more than before, disregard the provisions of the Constitution as existing for the time being, so as to be able to pass a law inconsistent with them, without first altering the Constitution itself. That is to say, their power was no more plenary than it was before. The distinction between an authority to disregard the existing limits is clear…. I think that, if the legislature desires to pass a law inconsistent with the existing Constitution, it must first amend the Constitution. This would be done by a Bill for that purpose, to which the attention of the legislature and the PUBLIC would be called, and the passing of and assent to which obviously depends upon considerations very different from those applicable to an ordinary law passed in the exercise of the plenary powers of the legislature under the existing Constitution. For these reasons I am of the opinion that the Constitution of Queensland for the time being has the force of an Act of the Imperial Parliament extending to the colony and that it is the duty of the Court to inquire whether any act passed by the State Legislature is repugnant to it’s provisos" (our emphasis and interpolations)

    8. Barton J observed the following: "the legislation of a body created by and acting under a written charter or Constitution is valid only so far as it conforms to the authority conferred by that instrument of government. Therefore… legislation….cannot be held as effective law on the ground that the authority conferred by that instrument includes a power to alter or repeal any part of it, and the legislation questioned has not been preceded by a good exercise of such power, that is, if the charter or Constitution has not ANTECEDENTLY been so altered within the authority given by the document itself. Hence an implied repeal is not within the power to alter or repeal, and is not valid because it is not an exercise of legislative power…legislation which could not be undertaken at all without the antecedent authority of the fundamental law, cannot overstep the bounds set for it by that law and yet stand good. Before it can avail, the bounds must have been lawfully extended….they cannot omit to make it, and at the same time proceed as if it had been made." (ibid @1317) (our emphasis)

    9. At page 1318 His Honour does not equivocate: "if then the Constitution does not empower the legislature to pass such statutes as are here in question, I can not uphold the contention that, in view of what has happened, they are valid even when they ignore the bounds set by the Act of 1867 taken in conjunction with the Order-in-Council of 1859."

    10. O’Connor J was also explicit: "The whole controversy turns on the question whether the Constitution Act 1869 does stand in the same position as any other Act of the Queensland legislature, or whether it is in reality a fundamental law which, although capable of being amended by that legislature, binds it until amended, just as a Constitution embodies in an Imperial Act would bind it. The primary object of the 18 & 19 Vict. C54, was to enact the Constitution for New South Wales embodied in the First Schedule….Sec 7 enabled Her Majesty to … erect (Queensland) into a separate colony, and establish it’s constitution by Letters Patent and Orders-in-Council… the Order-in-Council of 1859, established the Constitution of Queensland accordingly, partly by it’s own express provisions, and partly by incorporating by reference various Imperial and New South Wales statutes. The Constitution so established was undoubtedly a fundamental law, and binding on the Queensland Parliament created under it in the same way as a Constitution embodied in an Imperial Act would have been binding, subject only to the powers of repeal and alteration contained in clause xxii…the question at once arises, what was the power and scope of legislation permitted to the Queensland Parliament under that clause? It was no doubt open to that legislature to repeal or amend any or all the provisions of the Order-in-Council. But the whole scope and purpose of the Order indicate that it was never intended to authorise the entire abolition of any binding form of constitution or the entire disregard of it’s provisions. At the time when the order was issued the other colonies of Australia were governed under Constitutions conferred by Acts of the Imperial Parliament which were fundamental laws binding on the Parliaments created in their provisions. There is nothing in the statute authorising the Order-in-Council, nor in the Order itself, nor in it’s history, to indicate that it was intended to place the Queensland Parliament in a different position, to give it liberty at it’s own will to treat it’s constitution as non-existent. The power given under clause xxii of the Order was,….not a power to abolish the Constitutional together… nor to substitute for the Constitution under the Order, a body of provisions, which, although embodied in a Constitution Act (or any subsequent) gave no rights, and no security whatsoever..."(ibid @ p1328) (our emphasis and interpolations)

    11. His Honour continues, at page 1329: "its authority can be found nowhere but in Act 18 & 19 Vict. c54, under which the establishment of the Queensland Constitution was originally authorised… the Constitution Act of 1867 having been…enacted by virtue of an Order-in-Council issued under an Imperial Act extending to the colony of Queensland (and) clearly comes within the express provisions of Section 2. It follows that a law of the Queensland Parliament which is repugnant to any provisions of the Queensland Constitution Act 1867, is by virtue of the Colonial Laws Validity Act 1865 void and inoperative." (our interpolations)

    12. As an aside referring to His Honour, the Chief Justice’s remarks at paragraph 6.5 1a above, we feel compelled to point out, with due respect, that the English Parliament too, must also unfailingly observe the compact of the direct responsibility by which it was enlivened. It cannot claim sovereignty exclusive of the unwritten corpus juris which gave it life.

      13. Constitutional requirement for fundamental change ‘absolute’

    13. There is much precedential authority for essential observance of correct application of Constitutional law by the Parliament, from which standpoint we refer to the term ‘absolute law’. The concept describes law established by substantive ethic which has not the mediating component of convention. Absolute law is non-negotiable.

    14. Citing Craies, His Honour Justice Fullagar, in Clayton v Heffron (1960) 105 CLR 214; para 21) noted: "If an absolute enactment is neglected or contravened, a court of law will treat the thing which is being done as invalid and altogether void, but if an enactment is merely directory it is immaterial, so far as relates to the validity of the thing which is being done whether it is complied with or not." (Craies on Statute Law (1952) 5th ed p240)

    15. And Menzies J., in Cormack v Cope (1974) 131 CLR 432 @464, observed: "it is a firmly established principle that this court may declare or treat as invalid any law of the Parliament made without the authority of the Constitution…. It is of course convenient to speak of an unconstitutional law but the phrase means merely that the purported law is not a law at all." (our emphasis)

      16.

    16. In other words, there is no room for any American interpretation. The authorities are unanimous in their view: no Constitutional sanction equals no law. There is a superabundance of judicial finding for Constitutional probity, to which it is unnecessary to take the Court,; suffice to say that setting aside or obviating the Constitutional process of law, or the misreading of same to effect a different Constitution, voids any result.

      17. Australia Act (Request Act) 1985 no basis at law.

    17. It cannot be said, then, that section 53 of the Queensland Constitution is simply a directory clause, disjunctive at the discretion, or whim of Parliamentary proponents of law. While 18 & 19 Vict. c54 invigorated the Queensland Constitution, S53 provides its grounding principle, entrenching it thereby. Clause 2 of the Order-in-Council, re-enacted as Clause 1of the Preamble provides absolutely no avenue for Parliament to alter (as in change in character) any part of the Constitution, "all cases whatsoever" (sect 2) referring simply to matters arising in vires of Parliamentary jurisdiction in subjection to the act. Clause 1 of the Preamble cannot be read so as to raise any valid ground for basis of the Australia Act (Request Act) 1985, from the point of view of residual authority.

      18. McCawley’s Case misrepresented- Cooper’s case still good law;

    18. McCawley’s Case cannot be relied on thereby, as substantiation for change to the Queensland Constitution Act, and is misrepresented in that respect in the Statute Book (Volume 2, at pg. 805). Their Lordships found for the issue in contention only, that is to say, tenure of the judiciary as being subject to parliamentary parameters, but they did NOT find for the general premise that the Constitution of Queensland was as a ‘Dog Act’ and could be changed with as little formality (p704). Further, their Lordships admitted to unfamiliarity with the nature of the Queensland Constitution, providing no solid ground for a finding thereto. It was argued for the appellants that Section 2 of the Constitution Act 1867 applied in virtue of "all cases whatsoever". Again, however, the phrase is restricted to matters of moment arising under the Constitution in virtue of Parliamentary authority, and not in derogation of it, for constraint by Clause 2 of the Order-in-Council 6th June 1859. Any other view is heretical of its first cause.

    19. Reference was made to ‘Keith’s Responsible Government in the Dominions’, vol 1, pp425, 426, on the matter in supporting arguments for the respondents who asserted correctly that the Constitution can be altered (within it’s constraints) but cannot be disregarded (and that) so long as it subsists it is the test for validity of legislation" (p695) (our interpolations).

    20. It takes no application of genius to distil the word ‘amend’ from the word ‘alter’ in context of "peace, welfare and good government", for ‘amend’ from the Latin ‘emendo’ means ‘to free from error’. The concise Oxford Dictionary has it ‘to make progressive improvement in (measure before parliament)’. The Dictionary of Modern Legal Usage (1987 Oxford) has it ‘to put right, to add to, to supplement’, from emendare- ‘to free from fault’. It is self evident that any ‘alteration’ of the Constitution within the strictures prescribed to the legislature by the constating instruments, must remain within the context of ‘peace, welfare, and good government’. ‘Peace, welfare, and good government’ is the proviso, the operative qualification for the responsibility of self-government, notwithstanding that certain machinery instruments may be abrogated, but within that proviso. At this juncture, it is timely to point out that nowhere does ‘peace, ORDER, and good government’ appear as the injunctive premise among these instruments for self-government in the colonies, the original injunction remaining the operative imputation for all Australian Constitutions. Reference to the same Oxford dictionary has ‘welfare’ as ‘satisfactory state, health and prosperity, well being, (usually of person or society, etc)’. (our emphasis). Conversely ‘order’ connotes systemic regulation and authoritarianism, removed in its essence from the beneficence of the original premise, and a subversion of it thereby. However, referring to the full plus page devoted to the description of ‘order’ we find among its attendant degrees of regulated arrangement , a ‘prevalence of constituted authority; law abiding state, absence of riot, turbulence, and violent crime.’ ‘Order’ and it’s accompanying external regulatory subjection, as purported authority for legislation, is without legal foundation in our law.

    21. Returning to the main theme, while the Constitution may be altered in the sense of ‘amended’; it may not be set aside. Any scope of amendment remains confined to section 2, as a re-enactment of Clause II(ii) of the order-in-Council of 6 June 1859, but also constrained by sections 2,3,4 and 5 of the Colonial Laws Validity Act 1865.

    22. With regard to Section 5, which provides express confine to matters within Parliamentary jurisdiction, Dixon J. (as he was then) found: "This provision both confers power and describes the conditions to be observed in it’s exercise. It authorises a representative legislature to make laws respecting it’s own constitution, it’s own powers and it’s procedure. THIS AUTHORITY DOES NOT EXTEND TO THE EXECUTIVE POWER IN THE CONSTITUTION." But it plenary save in so far as it may be qualified by a law which falls within the description of the proviso…." (our emphasis) (Trethowan supra, p 429)

    23. Indeed ‘plenary’, as fulsome within its parameters, but remaining distinct from ‘plenipotent’ for having no source of it’s own authority.

    24. In the 1932 Privy Council TRETHOWAN judgement, their Lordships found for the principle that fundamental laws attaching to the New South Wales Constitution Act (1902) were not subject to abrogation.

    25. Approving Rich J’s original finding in the High Court the previous year, they cited: "A Bill within the scope of ( the relevant section) which received the royal assent without having been approved by the electors in accordance with that section, would not be a valid act of the legislature. It would be ultra vires (of that act). Indeed, the presentation of the Bill to the Governor without such an approval would be the COMMISSION OF AN UNLAWFUL ACT" (@ p106) (our emphasis and interpolation)

    26. Indeed, given the Trethowan judgement only some 11-12 years after McCauley, it appears disingenuous to continue to draw on McCawley as any basis for authority for Constitutional revisionism. It need to be re-iterated that His Honour Justice Dixon’s view (supra) is correct insofar as the rigidity of the Constitutional requirement for reference to the electors where such requirement is stipulated.

      27. What is Parliament

    27. The authority for an enlivened Constitution is sourced from the constituency. It acts, as it were, in symbiosis with the common law prerogative of the regent. Decisions effecting jural rearrangement of the executive is vested jus agendum cum plebe- the living property of the people (literally: the lively right with the people). "….What is parliament? Is it necessarily ‘the House of Commons, the House of Lords and the Queen’ or as the case may be in other jurisdictions. The answer to the question must itself be framed as a proposition of law, and hence the common law." Professor David Derham (31 ALJ 29 August 1957 @ 248

    28. We say Parliament , therefore, is not restricted to the confines of a nominated legislature, but includes the corpus of the constituency, and including the judiciary, who, pro re rata, conduce to uphold the true interpretation of fundamental law. By substance of contribution, those who would expound integral truths in law, are, by definition, included as Parliament.

    29. This is supported by Rich J. (Trethowan @ 420), who determined thus: "the electors are called upon to approve or not of a certain class of Bill. In so doing they discharge a function of law making. It is not necessary for them to have a power of altering or amending a proposal submitted to them" (but for which the power they remain a repository) (our interpolation) "…..the legislative part played by the electorate in the referendum is recognised by Brice, who describes it in his ‘American Commonwealth’ (1911 ed. Vol 1, c.39 p467)

    30. At Page 421, His Honour continues: "the ….question is whether, on the construction of the constating instrument, the Imperial Parliament made a grant of power to the representative legislature…. to prescribe to their successors a particular mode by which alone constitutional change may be effected. In my opinion….the constating instrument enabled (the) Legislature to introduce the referendum as such a mode because it constitutes a manner and form of legislation and includes the electorate as an element in the legislative authority in which the power of constitutional alteration resides." (our emphasis)

    31. On any approach, the purported establishment process for the Australia Act reveals itself as a fiasco. The Australia Act is no constating instrument, and is not authorised under the Constitution according to law. It has avoided the manner and form procedure accorded under Constitutional law, and is contra-indicatory to the qualification "‘peace, welfare, and good government’ conditional to self government in Queensland at its establishment.

    32. Having established , on the weight of evidence, that the elected legislature is confined to the constitutional dichogamy, and that the principle is well settled law, by the authorities cited, it is also established that the legislature is not competent to enact changes to the executive government. The elected legislature remains simply the body authorised by the Constitution to deliberate and sanction the content of script, known in the parlance as ‘Bills’, for the benefice of the community under the qualification ‘peace, welfare, and good government’. Its authority cannot reach into the executive. The Australia Act (Request Act) (Qld) 1985 likewise can be found, simply on that basis alone, patently ultra vires. The legislature has no power to alter the fundamental law of the state by lex scripta, as we have shown.

    33. Given the attention drawn to the office of Governor in Sir Joh’s speech of 1985 (supra), in light of mooted changes to be wrought, it was clearly a matter for the electors as prescribed by S53 of the Queensland Constitution, and remains, at best, extremely remiss of Parliamentary legal advice of the day not to advise same.

      34. Australia Act- Analysis of provisions

    34. We turn now to the individual provisions of the Australia Act. For reasons set out previously, neither the elected legislatures and parliaments of the states, nor their predecessors, nor the Commonwealth Parliament, per se, or otherwise as delegated legislatures of the Parliament-at-Westminster, can ever be the Parliament-at-Westminster. It follows that any self conferral of omni-competence is acutely embarrassing and a legal nullity (purported ratification by the Imperial Parliament notwithstanding.)

    35. Section 1 of the Act purports to terminate paramountcy of the legislation passed by the Parliament of the UK in application to the Commonwealth, a State, or territory, yet, for reasons previously stated, section 1 has only conventional force, and is no bar to overriding legislation by the Parliament-at-Westminster. Convention is not law.

    36. Section 2(1) purports to extend plenary power to a state in an extra-territorial capacity under the guise of ‘peace, order, and good government’. The states as colonies were not competent to legislate for extra-territorial operation, as set out throughout these proceedings, and, as such, are unable to derive from the Commonwealth compact powers that were not contributory to it ab origine. This provision is precluded thereby, by sections 106 and 107 of the Commonwealth Constitution. In this instance, the first part of section 106 has paramountcy over the second part, and is read in conjunction with section 107, to effect bar by statute and at fundamental law. Section 2(2) is similarly caught, the words ‘peace, order, and good government’ having no basis at law in its rightful capacity for prolative interpretation, but is simply protatic.

    37. Section 3(1) and 3(2) purport to abrogate the grundnorm body of law which forms the States matrii, but are precluded from doing so by operation of law, which we have been at pains to demonstrate. The framers of the Australia Act, finding these provisions embarrassing, inserted section 5(a) and section 5(b) obviously as an afterthought, in quasi-revocation.

    38. With regard to section 4, the majority decision in CHINA OCEAN and KIRMANI and the many authorities cited therein, substantiate at law the continued virency of the Merchant Shipping Act of 1894 (UK) notwithstanding anything contained within the laws of a state or the Commonwealth.

    39. Section 5 is an interpretive clause only, and has no standing at law for not being law in its true sense and is therefore of no effect.

    40. Section 6 purports to arrogate the omni-competence unto parliament as a legislative body contrary to its founding instruments under the law. As a corollary, inter alia, section 6 further purports to dissemble the constitutional procedure by which legislation acquires the force of law, as by law established, and in so doing, to substitute a process unknown to it. The legislature of Queensland remains subject to the various acts of the Imperial Parliament cited in the preamble to the Constitution Act 1867 in regard to the giving and withholding of Her Majesty’s pleasure and the instructions to be conveyed to Governors, as constating instruments. Section 6, therefore, has no binding force, and cannot stand as law. We refer to the paper by Mr Justice Owen Dixen previously raised for this view. The Constitution of Queensland is a fundamental law and remains unaltered for no (correct) application of due process of law by the architects of the Australia Act, and continues to also be subject to the Colonial Laws Validity Act 1865 thereby. (Cooper v Commissioner of Income Tax for the State of Queensland (1907) 4 CLR 4 @ 1304); (Attorney General (NSW) v Trethowen (1931) 44 CLR); (Clayton v Heffron (1960) 105 CLR 214) The reports abound with citations disposed to the view of correct application of Constitutional law in our Constitutional history. For reasons stated at length elsewhere in these proceedings, the fundamental law of a state cannot be abrogated by a legislative novel disseisin. Any claim for retroactivity or retrospectivity in the latter part of the clause being, in a curious twist, a quaint attempt at legal nihilism, but alas, nihil ex nihilo. Being void of law, intermeddling with the formation process of legislation contrary to fundamentally established lex magis, creates no law of itself, nor any of valid subsequence. Usurpation by flavour enhancement is no substitute for law.

    41. By S7 the Australia Act purports to arrogate the powers of Prerogative by reverse paramountcy. This section is typical of that which can only ever be upheld by convention, but has no binding force of law. Foe reasons enumerated previously in these proceedings, the influence of the Imperial Parliament and the Royal Prerogative remains unaltered. The powers retained by the Queensland legislature are as at per constating arrangements. The Australia Act is not a constating instrument, nor is it an organic or fundamental law of the State, and remains, simpliciter, unentrenched, despite any purported entrenchment under S15, which is simply vaporous. Democracy derives no force of law by it’s own usurpation. The Queensland Constitution remains thereby ever subject to restriction by Royal Prerogative and Imperial Parliament confluence. Further the Australia Act has no binding force, for, not being a constating instrument, it is subject to the principle that no parliament can bind its successor, and further still, it bears the hallmarks of a piece of delegated legislation or an ordinance for having by-passed the due process of primary enactment.

    42. Section 7(1) is not an entrenchment of the Governorship, but conversely, purports to arrogate power to the Parliament for purposes of conferral of a Vice-Regency, that is effectively, in derogation of the Royal Prerogative. It has, thereby, no force of law and is a nullity. "… the state of Queensland is not the King, nor is it an agent of the King….The state Government is an agent of limited powers; the Commonwealth Government is also an agent of limited powers….The state does not enjoy the benefits of the Kings prerogative rights; just as the Governor of a State is not protected as to matters beyond the authority confided in him…" (our emphasis)

    43. So far His Honour, Higgins J in The King v Sutton (1908) 5 CLR 789 @ 816. Simply said, his Honour has illustrated that (even by colour of royal assent, as in this case) there can be no arrogation of royal power unto any state authority, whether by government or by Parliament and they accordingly, cannot establish anything thereby. The State Government and the Parliament are agents only in the sense of the demographic democracy within the state boundaries. The same applies to the Commonwealth Government. And just as a Governor acting ultra vires of his commission is outside the law and loses sanctuary under it, so to a governorship purportedly established by means beyond authority is denuded of the force of law and has no legal standing. Further yet, it is not possible to be representative of that which is simply a legal fata morgana. This sub-section has thereby effectively written the governorship out of existence for no representational legitimacy

    44. Section 7(2) having purported to establish a de facto regency by guise of vice-regency under the previous section, this section purports to extend usurpation of her Majesty’s role as the source of all State law, as construed in the usage of the words "powers and functions". However, "in anything outside the exercise of (valid) power (the King’s representative) is in law no more than an individual subject of the King." (the King v Sutton 5 CLR 789 @ 805); (Musgrave v Pulido 5 App. Cas. 102 @ 111) It follows that any usurpation of the Royal role must offend the statute of 25 Edward III (1352), and subsequent development of the law of treason as represented by 2 Henry VII, c1; 1 Anne St. 2 c21, S3; 6 Anne c41; 35 Henry VIII c3 (1543) and absorbed into our own Criminal Code. Section 7(2), inter alia, is caught within the meaning of ‘compassing’ by ‘levying war’, and altering the succession of the crown as follows

    45. In his introduction to the general subject, Sir James Stephen, at p243 of his ‘History of the Criminal Law in England’, vol 1, 1883 edition, cites Glanville: "The history of the definition of treason begins at the beginning of our law. The offence is referred to in a few words by Glanville, who says-"cum quis itaque de morte regis vel de seditione regni, vel exercitus infamatur aut certus accusator apparet aut non." These few words … specify the principal heads of treason as ascertained by 25 Edw. III, imagining the King’s death (de mortis regis), adhering to the King’s enemies (seditionem exercitus)

    46. Coke in his Third Institute at page 6 expounded: "he that declareth by overt act to depose the King is a sufficient overt act to prove that the compasseth and imagineth the death of the King. And so it is to….manifest the same by some overt act." (Stephen, ibid, p266.) At page 5 of the 1817 edition of the Institutes- (Professional books, Oxon, England 1985) is found: "….in the case of the King, if a man had compassed, or imagined the death of the King (who is the head of the Commonwealth) and had declared his compassing, or imagination by words or writing, this had been high treason, and a sufficient overture by the ancient law. And herewith agree all our ancient books…"

    47. Coke then goes on to cite Glanville, Bracton, Britton, and the Mirror of Justice…"by all which is manifest that compassing, machinating, counseling, & etc, to kill the King, though it hath no other declaration thereof but by words, was high treason by the common law." Ibid p5,6

    48. Sir James Stephen, at p 266 (supra) observed: "Hale repeats Coke, but makes some additions. Hale’s view on ‘levying war’ was similarly not restricted to personal injury, but also included "to enforce (the King) to put away his ministers or the like"; "in short", says Stephen, "to employ violence against the government for the purpose of compelling or preventing legislation…." (ibid p 270)

    49. "Foster follows Coke and Hale in holding that "levying war" is an overt act of compassing, and that conspiring to levy war in one sense of the expression is so too" (ibid, p268) (our emphasis)

    50. It is well to remain mindful of Sir James Stephen’s view previously cited in these proceedings of a class of offences not demonstrably or openly violent, but remain nonetheless offences against the public tranquility. Though categorised as ‘sedition’, it is to be remembered that the latin etymology is to ‘overturn’, ‘overthrow’. Thus ‘levying war’ as ‘seditionem regni’ means to overthrow, overturn the King-in-Government. Being the king’s government, there is, none other. All juro-political administration is sourced therefrom. To overthrow the King-in-government is to deny the effectiveness to the juratory administration as by law established for the purpose of establishing a substitute ‘seditionem regni’ and cannot escape therefore being caught within the meaning of the principal law. It manifests, inter alia, in this case, as overt deposition for prevention of legal legislation.

    51. To illustrate further: the treason trials of 1794 did not find grounds for any distinguishment, for it is a ‘crime which has vague circumference and more than one centre’ (Maitland 1985) A synopsis from Stephens follows: "the facts proved in evidence were that two societies, the Constitutional Society, and the London Corresponding Society, which had branches all over the country, carried on an agitation for the establishment of universal suffrage and annual parliaments, in the course of which they called a Convention, consisting of the representatives from a number of branch societies. Members of the societies wrote letters, and made speeches, and circulated books and pamphlets, and the convention held meetings and passed resolutions, ostensibly and avowedly in order to further their political objects by constitutional means; according to the Crown, in order to put themselves in a position to assume the powers of government, depose the King, and establish a Republic." (Stephen, supra, p275) (24 State trials p199 seq, Hardy’s case)

    52. The Lord Chief Justice reduced the statement of the law to the following; "that the members of the convention intended to usurp the powers of parliament, to depose the King and institute a republic, to commit High treason by imagining the King’s death" (Stephen, supra p27) (24 State Trials, 256)

    53. In the second trial, heard on substantially the same facts, the same judge laid down the law rather more assertively: "a jury ought to find that he who means to depose the King compasses and imagines the death of the King. It is in truth a presumption of fact arising from the circumstance of intending to depose, so undeniable and so conclusive that the law has adopted it and made it a presumption of law; and it is in that manner that the law has pronounced that he who means to depose the King has compassed and imagined the death of the King." (Stephen, supra, p277; 25 State Trials 725 Horne Toolces case) (our emphasis)

    54. A fortiori, that ‘all powers and functions of Her Majesty… are exercisable only by the governor of a State’ cannot be declared without usurpation of the regent’s authority and attendant deposition of the throne of office. The dictum of Higgins, J. in the Queen v Sam Scott (No SCC75 of 1990; 114 ACTR 20 (1993); 65 A Crim. R 182; 1993 ACT SC 12 (22 Feb. 1993)) at page 7 is curiously candid in this respect: "the office of Queen and the exercise of official powers and duties of that office… has now been stripped of it’s legislative power…the crown has also been stripped of its judicial power…The executive powers conferred by the Constitution are those of the Governor-General not the Sovereign he or she represents…the royal powers act1953 provides for a ‘reverse’ devolution. It provides that where an act confers a power on the Governor-General, it may be exercised by "the Queen" if she is personally present in Australia…"

    55. The striping of legislative and judicial power, confirmed by His Honour’s statement, is frankly admissive of that which forms the basis of our entire proceeding on this issue. At Constitutional law, there is nothing that provides for an exchange of plenipotentiariness between the reigning Monarch and the Dominion governors, notwithstanding whatever perceived time or status in legal history affected by the legal avant garde. As previously shown on the authorities, neither the Royal Powers Act, nor any other piece of legislative fiction or wish-making, can at law alter the position of the executive government in Australia

    56. The Royal Powers Act 1953, per se, simply confirms the jurisdiction of the head of State over statute law as concurrent with that of the Prerogative (Section 2). Section 2(3) simply declares the reciprocity of Her Majesty’s office and that of the Governor. Reciprocity obtains to a mutual purpose (Oxford dictionary) and does not allude to vying for authority. Section 3 confirms the Governor’s lawful jurisdiction as remaining unimpeded by the personal presence of Her Majesty.

    57. With all due respect, his Honour offers no explanation for arriving at a conclusion to the contrary. Opinion is not law (Walsh v Johnson (1925) 37 CLR @51). There is nothing to be said for the view that the Royal Powers Act obtains any extra-constitutional authority to supersede Section 61 of the Commonwealth Constitution. It cannot claim any Prerogative authority for its base, but is an Act of Parliament, and ever remains subject to both State and Commonwealth Constitutions. It is thereby confined to a prima facie & natural interpretation only, and is caught also by Section 9(1) of the Acts Interpretation Act 1954 (Qld) in the case of Queensland. His Honour, Justice Higgins, remains thereby, clearly in error of law.

    58. Section 61 of the Commonwealth Constitution unequivocally vests the Executive power of the Commonwealth in the Queen. This in itself is not by "reverse devolution", but is declaratory law of the Constitutional grundnorm. Section 61 further expressly states that the Governor- General exercises Executive power as the Queen’s representative and provides no other reading, as neither do the other sections of Chapter II. Section II vests the Governor-Generals power as ‘representative’. To maintain a contrary view in the bare face of Section 61 and Sec II is to travel well beyond the orbit of legal license, yet Higgins J’s resolute pronouncement speaks ominously to factual interpretation contrary to law.

    59. However, it is not tenable that section 61 is set aside by section 7(2) of the Australia Act while the compaginate Federation continues. In contrast, they present a conflict in law, to say the least, and one must prevail, ex hypothesi, over the other. In the part-surrender of sovereignty in order to give effect to the Federal compact, the colonies acceded to the paramountcy of Commonwealth law. Accordingly in relying on section 51(xxxviii) for initiation of the Australia Act(s), the states again concede to paramountcy of Federal law, and thereby, remain within the terms of the first principle, which continues to bind them to Section 61. It follows, that, at law, under the terms of section 7(2) of the Australia Act, the States remain republics in name only, but the state Governments who purport to exercise authority under it’s provisions are unprotected by law and remain in anarchy for usurpation of the Crown.

    60. Accordingly, neither section 7(2) or any other of the subsections of section 7 provide any authority which give rise to any subsequent enactment for the purpose of purported validation of the Governor’s position under those terms. The Constitution (office of Governor) Amendment Act 1987 (Qld) and the purportedly enlivening Letters Patent proclaimed in the Queensland Government Gazette on the 8 March 1986 are, based on our preponderate argument on the authorities, empty of substantive Constitutional principle and void ab initio, for even the Prerogative cannot be based on unfounded law.

    61. In Sharples v Arnison & ors (2001) QCA 518, His Honour Justice Ambrose delivered a judgment touching the very question of the purported validity of the above Queensland Act. However, the applicant’s submission primarily failed for lack of argument on the vera causa, but in an appeal heard on the 23 Nov. 2001 (Sharples v Arnison & ors (2001) QCA 518 at page 10, concurring in the judgement of McPherson JA, their Honours, McMurdo P, and Davies J, admit that an alteration of the Governor’s role HAS been effected not by the Act of 1987, but by the confluence of the UK and Commonwealth of Australia Acts, admitting also that the parliament of Queensland WOULD have been bound by Section 53(1) of the Queensland Constitution, but that by purported virtue of the fact that neither the Parliament of the UK or the Commonwealth were bound by section 53(1), the evasion of process (scienter) suddenly donned the mantle of legality. His Honour, Justice MacPherson then went on to rely upon WR Moran v Deputy Commissioner of Taxation (NSW) (1940) AC 838 (Hereinafter Moran) stating at para 26: "(the above case)…. Is authority that such a legislative scheme is not illegitimate or invalid, provided of course, that, as is the case here, no step in the legislative process is itself Constitutionally prohibited"

      62.

    62. We say that ample evidence has been produced throughout the course of these proceedings for the opposite conclusion to be drawn, and with all due respect his Honour has made a misstatement of law and that MORAN cannot be relied upon to the effect sought by the learned Justice.

    63. Conversely in citing MORAN his Honour has drawn attention to the evasive nature of such a scheme in the first instance, and thus it’s integrity.

    64. The view for questionability is also aired in the preceding judgement in the lower court (Sharples v Arnison & ors. 2001 QSC 56) at para. 30 by Ambrose J: "…on one view it might be contended that the use of section 51(xxxviii) to effect alteration by partial repeal of ss 11B and 14 of the State Constitution Act was a device adopted to circumvent the provisions of ss11A(2) and S 53(1) of the Constitution Act…"

      65.

    65. We say that is exactly the nature of the case.

    66. For our purpose, there is further and more explicit admission by MacPherson J in the SHARPLES judgment of Nov. 2001, at paras. 26, 28. As to the changed substantiveness of the Governor’s official jurisdiction. Citing amendment by the Imperial Parliament of the provisions of section 11A and the repeal of Section 11B of the Constitution Act 1867 (Qld) his Honour then says: " It was those provisions in S13 of the UK Act of 1986 and not the provision of the Constitution (Office of Governor) Act 1987 (Qld) that altered the office of Governor in Subsection 11A and ‘affected’ Section 11B of the Constitution Act" (Our emphasis)

    67. It is entirely our point that change has been effected, and is entirely our point further, having done so, the very purported elimination of Section 11B, inter alia, however arrived at, is of no effect for the diaeresis of the source claimed for it.

    68. Further, the power sharing arrangement to which we referred earlier is confirmed by the purported alteration of section 11A(b) to a new form, viz; "to include any other person appointed by the dormant or other commission to administer the Government of the State of Queensland" not as a contingency delegate to the Governor in case of indisposition but, by implication, concurrently.

    69. His Honour then goes on to re-iterate (at para. 28) that while the provisions of the Australia Act (Commonwealth) 1986 did not of their own force specifically amend or repeal section 11B, they were indeed materially amended and repealed, for; "the decisive step was….specifically taken by Section (13)3 of the Australia Act UK." (our emphasis)

    70. Together, the above dicta constitute primary evidence to substantiate our point of Constitutional violation as caught by the various pertinent statutes earlier mentioned flowing from 25 Edward III (1352) including 1 Anne, st. 2, c21, s3: "(t)he endeavoring to deprive or hinder any person being the next in succession according to the limitations of the Act of Settlement, from succeeding to the Crown, and maliciously and directly attempting the same by any overt act;"

    71. and the latter portion of 6 Anne, c41: "(A)ny person who maliciously, advisedly and directly by writing or printing maintains and affirms that any other person has any right or title to the crown of this realm, otherwise than according to the Act of Settlement, or that the kings of this realm, with the authority of parliament, are not able to make laws and statutes, to bind the crown and the descent thereof shall be guilty of high treason."

    72. We also say by bare publication of the Australia Act, 1986, (Qld), Sections 7(1 – 5) are caught thereby

    73. A priori, in the reading-down of section 7(2), inter alia, is found purported abrogation of the secession to the crown, violating directly the settled law thereunto, including the Bill of Rights 1688, Act of Settlement 1701, and the Succession to the Crown Act 1707, and of course, our own Imperial Acts Application Act 1984 (Qld).

    74. In Rex v Lynch (1903) 1 KB 444, it was found that the Statute of Treasons (25 Edw III St 5 c2) applies to acts committed within or without Great Britain. Accordingly, there is no reduction of interpretation in application to Australia and Queensland, for no autochthonous sovereignty by which to provide countervail.

    75. The Letters Patent issued by authority of Her Majesty the Queen as putative Queen of Australia, as found in the dictum of MacPherson J (SHARPLES, 2972 of 2001, supra. At para. 26) purporting to authorise the Governorship of Queensland, as published in the Government Gazette on 8 March 1986 are void ab initio for no legal entity known to law as "Queen of Australia" as follows:

    76. The Royal Style and Titles Act 1973 (Commonwealth) which purports to provide authority for the title of ‘Queen of Australia’ is void and of no effect, for Her Majesty cannot be delegated plenary sovereignty drawn from a subordinate government by operation of law. Subsequently the Monarch cannot sub-delegate her own position pro ipse, by sub-ordinate power. Nor can Her Majesty be delegated as plenary sovereign within the context of sub-ordinate government. Similarly, sub-ordinate legislation cannot impart authority to its principle source. The Queensland Parliament is a delegated legislature, as is the Commonwealth Parliament, and as such, is devoid of the sovereignty of the Parliament at Westminster, and is thereby not competent to constrain or authorise the Prerogative. This principle similarly applies to the Parliament of the Commonwealth of Australia.. A priori, the title ‘Queen of Australia’ has no standing at law, and the Royal Style and Titles Act 1973 (Commonwealth, and the that of the Queensland legislature purporting to confer upon Her Majesty , the title ‘Queen of Australia’ is, for the above reasons, a nullity. A fortiori, any letters patent purportedly so authorised are void ab initio.

    77. Further, Colonial Australia is founded by Prerogative, and the federated Commonwealth is, consequently, founded on Imperial Statute. Accordingly, there is no autocephalous law upon which to ground an Australian derivative monarchy. A titular head by jure dare, remains, ab initio, a nominalism, not competent thereby to create any office, or bestow any rights, for such a purported entity is void of legal capacity, for niminis umbra, and remains ever a person unknown to the law for lack of legal substratum.

    78. In the above point, MacPherson J’s reliance upon Dooney v Henry (2000) (DOONEY) 74 ALJR 1289, 1295) (SHARPLES, op.cit. at para 26) fails for authority, for while DOONEY provides a technical connection of the applicable statutes, does not provide analytical construct of the fundamental law to support such statutory definitives, and is thereby reduced to a mere gloss on the matter.

    79. On the point of his Honour’s reliance upon Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340) for authority confirming legitimacy of the process obtaining to the Australia Acts, we have waded through it only to find no specific reference of the nature referred to by his Honour, and the Acts referred to therein as repealed, remain unaffected for lack of repealing power in the first instance, and on the whole found the case to be of no assistance to his Honour’s determination.

      80. Standing to Sue: remedies for Ultra Vires : Jurisdiction

    80. In Taylor and others v Attorney General and others (1917) (hereafter TAYLOR) at pp221, 222Lukin J cites Griffith CJ on the operation of the fundamental principle of ultra vires at common law, invoked in respect of Constitutional issues, and readily available to the courts. Our point is to illustrate the nullity of an ultra vires act by operation of law, and that the remedies are not novel, but on the contrary, well settled law. Sir Samuel Griffith was at that time handing down his decision in Colonial Sugar Refining co LTD v Attorney General for the Commonwealth (1912) 15 CLR @ p193: " in my opinion the jurisdiction of the Court both to make a declaration of right and to grant an injunction is clearly established in any of the following cases: I) if the act itself under which the alleged power is claimed is wholly invalid: ii) if the government instrumentality is attempting to exert, under the cover of a valid act, powers which are not capable of conferred on it by the Commonwealth Parliament (or State Parliament); or iii) if it is attempting to exert under cover of the instrument creating, powers which that instrument does not confer. I think it immaterial whether the instrument under which that power is exerted is an act of Parliament, or letters patent purporting to be issued under an act of Parliament, or letters patent validly so issued" (our emphasis)

    81. His honour, the Chief Justices dictum strikes at once to the core of any purported legitimacy for both the Australia (Request) Act (Qld) 1985, the Australia Act (Commonwealth) 1986, and also any ensuing legislation under purport of their authority, such as the putative Weapons Act (Qld) 1990 and the Weapons Regulations (1996) issued under it.

    82. His Honour, Justice Lukin, spoke also to the locus standii as available to a person aggrieved by an act of the Government, or its agencies in pursuance of ultra vires legislation, citing the Privy Council finding in Nireaha Tamaki v Baker (1901) AC 561 @ p576: "their Lordships hold that an aggrieved person may sue an officer of the Court (Crown?) to restrain a threatened act purporting to be done in supposed pursuance of an act of Parliament, but really outside the Statutory authority."

    83. A physical act, or acts of Parliament undertaken in pursuit of illegal legislation is no less ultra vires before or after it is carried into operation.

      84. Jurisdiction

    84. Order III, rule II of the rules of Court under the Judicature Act (Qld) expressly provides that the court shall not refuse to determine a cause or matter by reason only of mis or non joinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Under section 78B of the Judiciary Act (Commonwealth) 1903, sec 2(c) expressly provides that a court of a state or territory may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation. However, our consistent concern lies with determination of the status of certain Acts of Parliament under the law of the Constitution by way of defence. I am not seeking to dispute the facts in issue, and they remain as dealt with in the lower courts. There are today therefore, no matters severable from evidence and argument arising under the constitution or its interpretation, other than leaving to the court to decide the issue of trial by jury in point of law with a view to retrial under sec 604 of the Queensland Criminal Code.

    85. Given that under sec 78 (3)B of the Judiciary Act (Commonwealth) 1903, notice is not required to be given to the attorney General of Queensland, for being a party to the cause, the remainder of the argument is at once removable to the High Court for attracting Federal Jurisdiction (Felton v Mulligan (1971) 124 CLR 367 @ 373)

    86. On an ancillary note, notwithstanding lack of proper address to Constitutional procedure, history may well excuse the Hon. Sir Joh Bjelke Petersen’s enthusiastic regard for the Australia Act, for his misconception that it would entrench the Vice-regency by statutory means thus thwarting the entry of a Republic. (see Hansard, 9th October 1985 @ 1715

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