Hey Jackboot Johnny, I've still got my Guns

Criminal Court of appeal documents

In the Criminal Court of Appeal

Held at Brisbane, Queensland

Between

Martin Essenberg – Appellant

And

Mark Shields- Respondent

OUTLINE OF ARGUMENT by Appellant

Many of my arguments against my treatment in the District Court at Kingaroy are based on a failure by the court and the respondents to observe correct procedure as determined in the District Court Practice Directions no 4 of 1997.

The matter was set for mention only and not for hearing.

His honour proceeded with the hearing in the face of the respondents complete failure to observe Practice Direction no 4 of 1997, setting me at a complete disadvantage being unprepared.

His honour erred in proceeding with the hearing of this matter in light of insufficient notice to the appellant required by Practice Direction no 4 of 1997. The directions require 21 days notice. I was given only 8 days

His honour erred in proceeding with the hearing when, on self admission my arguments had not been fully read- thus denying fair adjudication.

His honour erred in dismissing the appeal for lack of merit without new and additional material in respect of the Australia Act and Section 53 of the Queensland Constitution being considered. There is much new material since my appearance before the High Court on 22 June 2000.

Under section 604 of the Queensland Criminal Code 1899 I should have been given a jury

Civilisation requires human beings to put their faith in a legal system rather than help themselves to vengeance, retribution or rough justice.

A COURT is a place where JUSTICE is administered. JUSTICE is the PROTECTION OF RIGHTS and the PUNISHMENT OF WRONGS.

JUSTICE is a moral ideal which the LAW seeks to UPHOLD. Procedures or failure to adhere to set procedures which DESTROY RIGHTS or PROTECTS WRONGS is UNJUST and has no place in a Court.

In the hysteria that followed the Port Arthur massacre, politicians passed gun laws all over Australia. I honestly believe these laws are not within the legal competence of the parliaments that passed them. They offend a number of laws that were in place when the Federation referendum was passed in 1899. The repeal of those laws was outside the competence of Parliament then- and I honestly believe they still are.

There is also doubt about the validity of the Queensland State Governor and all laws passed by the Governor since 1986. This includes both the Australia Act 1986 and the Weapons Act 1996.

The issue of the validity of the position of State Governor was dealt with recently in Sharples v Arnison and ors in the Supreme Court on 5 March 2001. I understand that the issue is to go to the High Court.

A PARLIAMENT has the power, conferred by its Constitution, "to make laws for the peace, order and good government" but "a law in excess of the authority conferred by the Constitution is no law; it is wholly void and inoperative; it confers no rights: it imposes no duties; it affords no protection…… To be valid and binding they must be within the domain of jurisdiction mapped out and delimited in express terms, or by necessary implication, in the Constitution itself. What is not granted to the parliament of the Commonwealth is denied to it." (The Annotated Constitution of the Commonwealth of Australia by Quick & Garran, p 346).

A COURT which does not pronounce laws, which are ultra vires, to be INVALID is DERELICT in their DUTY. Equally, a COURT which promotes UNJUST LAWS is NO COURT because it is, itself, acting ultra vires.

In Essenberg v The Queen (B55/99) the respondents argument sought reinforcement for the notion that State law legislation is autochthonous law and thus unable to be challenged by reason of same, and furthermore, that the Australia Act, specifically Sec 3, subsection 2, some how provides for unrestrained autonomy of law making by the State of Queensland.

The passages of the Australia Act 1986 through all Australian parliaments without dissenting voices were themselves without substance and void since they were in clear breach of our Australian Constitution on more than one fundamental ground.

Section 5 of the covering clause of the Constitution binds all courts, judges and people of every State, not withstanding anything in the laws of any State, whereby it is implied the continuing observance of the binding principles of Federation. Section 106 of the Constitution makes the States Constitutions subject to that of the Commonwealth and section 109 invalidates the States laws to the extent of inconsistency with the Commonwealth law. Thus antinomy- that is conflict of laws -is precluded.

"In the Commonwealth V Queensland, in a judgement with which Barwick CJ, Stephen and Mason JJ agreed - Gibbs J held that it is implicit in Chapter III that a State cannot legislate in a way that has the effect of violating the principles that underlay Chapter III" per McHugh J, Kable V DPP at pg 34.

It follows then, that perpetuating the integrity of law is incumbent on the Federal Judiciary under Chapter III is binding also upon all courts, Judges, and people of every state by virtue of covering Clause 5 under the Constitutional Accord, which, in se, bespeaks of the retention of individual jural responsibility at common law.

I argue that just as certain principles underlie the supintendant power of Chapter III, to properly effect the cohesiveness of the rule of law, and thereby good governance, there are, others which consubstantiate the constitutional compact giving life to Chapter III.

So that while it may be said that the provisions of the Australia Act anneal our Constitutional Compact, it is unable to derogate from jurisdictional responsibility and its intrinsic founding principles.

Jurisdictional responsibility implies due cognisance of the canons of antecedent compacts upon which our Constitution is based. That the Australian constitution is drawn partly on the American, is enough to pay due regard to their Jurisprudential view on such matters.

In an American judgement of 1968 it was said "It (Constitution) must be read in the light of all engagements entered into before its adoption including the declaration of Independence and the Declaration of Resolves of the First Continental Congress and the privileges and immunities secured by common law, conferred by Magna Carta and other English Charters…"

and elsewhere "the Constitution is the property of the nation and more specifically of the individual and not those who exercise Government. All the Constitutions of America are declared to be established in the authority of the people" First National Bank of Montgomery v Jerome Daly." Per Mahoney JP

That the people are patently also seen by the Australian Constitutional draughtsman to provide the main impetus for the compact, inter se, impliedly acknowledges that the canons of law which provide its substantiveness do not come from executive government, or from Parliament, but those who, by their very existence perpetuate jus the animus of lex.

It further follows that while, prima facie subsection 2 of section 3 of the Australia Act 1986 purports to sever jus from lex in reality it has the residual effect of consolidating the fundamentals integral to the system in Australia under the guardianship of Chapter III which compels the judiciary of the States to uphold the principles thereof.

"Legislatures cannot alter or undermine the constitutional scheme set up by Chapter III" per McHugh J Kable v DPP at page 29

and further, "If chapter III requires that State Courts cannot exercise particular powers, the Parliaments of the States cannot confer those powers on them. That follows from covering clause 5 … and from Section 106 by which the Courts of each State is made subject to the Australian Constitution. This was recognised in the Commonwealth v Queensland (1975) 134 CLR 298 at page 315 where it was said that legislation in violation of the principles that underlie Chapter III is invalid" per Gaundron J Kable at page 26

The corollaries are that the very pillars, upon which our system of Justice is based, cannot be legislated away.

In the words of McHugh J, " Neither Parliament (Commonwealth or State) can legislate in a way that permits the Supreme Court (but for our purposes the Court of the State) while exercising Federal, Judicial power to disregard the rules of natural Justice, or to exercise legislative or executive power. Such legislation is inconsistent with the exercise of Federal Judicial power. The compatibility of State legislation with Federal Judicial power does not depend on intention. It depends on effect. If, as Gibbs J pointed out in Commonwealth v Queensland, State legislation has the effect of violating the principles that underlie Chapter III, it will be invalid" Kable at pg 34.

From the foregoing it is seen as imperative that the State Courts observe the responsibilities of Jurisprudence, which are incumbent upon under the Federal Constitution and not to derogate from their legal foundation. Is thereby not possible without becoming ultra vires, to set aside factors which consubstantiate the matrix, inter alia, the antecedent perpetual compacts of the Bill of Rights (1688), the 37 confirmations of the old Magna Carta (1297) , the Statute of Monopolies 1623 with a handful of other covenants, referred to as "the Bible of the British Constitution, were already entrenched by reason of grounding in unchanging principle. A principle is an undying force.

Therefore the learned Judges of the lower courts fell into jurisdictional error by not pausing to ascertain the true status of their guiding principle.

The Magistrate erred in law and process in neglecting to pay the principles of Chapter III of the Commonwealth Constitution in not transferring the proceedings under 78B of the Judiciary Act 1903 as a "matter" caught by the meaning of that section (Kable)

I say that since I raised Constitutional issues that under Section 78B of the Judiciary Act 1903 that the magistrate was obliged to have the case removed to the High Court for these issues to be resolved

It is evident section 78B of the Justices Act was invoked by the substance of my defence in the first instance, which similarly was caught 35A of the Judiciary Act (1903).

Thus: " when a court is created by an Act of the Legislature, the Judicial Power is conferred by the Constitution and not by the Act creating the Court. If its Jurisdiction is to be limited it must be limited by the Constitution" 16 American journal 2d on Constitutional Law sections 210-222, pages 77 to 83. Per Marney JP in First National Bank of Montgomerey v Gerome Daley

The word, "Prejudicial" means harmful to rights or interests, and I say for my trial to be done in a summary manner was harmful to my rights and interests.

The Anti Discrimination Act 1991 says on page 2260 Queensland Statutes no 85 1991, (15.1) we are all equal. The Anti Discrimination Act 1991 binds the Crown by Section 3 in all its capacities. By Section 101 (15.4) it binds all Judicial officers. By Section 5 Criminal Code Act 1899, persons in Queensland may only be tried as for an indictable offence under the express provisions of the code. This Act was in force and known to the electors who voted for Australia. By Section 118 (9.9) Constitution, it became Australian Law. By Sections 560 to 659 Criminal Code, the procedure to try indictable offences was codified, and a jury trial guaranteed.

Indictment is defined in Section 3 of the code, to mean a written charge preferred against an accused person in order to his trial before some court other than justices exercising summary jurisdiction. I did not at any time consent to summary jurisdiction. Applying the rule in Heydons' (10) case, the mischief rule, summary procedure was for the benefit of persons accused, not prosecutors. That is the meaning of the word "may". (10- CS Pearce and RS Geddes STATUTORY INTERPRETATION IN AUSTRALIA, 3^rd edition (1988)Butterworths. Brisbane. P 24 Heydon’s case (1584) 3 co rep 7a at 7b, 76 ER 637 at 638

In 1960 Section 3 Criminal Code (11) (7.1) allowed me to submit myself by consent to two justices of the peace, who were not paid public officers but drawn from the ranks of my local community, for justice. In 1985, by Act no 32, without a referendum, the Parliament of Queensland enacted that a Magistrates court could try me. By Section 53 Constitution Act 1867, (Q) this is not an Act. Section 53 Constitution Act 1867 mirrors Section 128 Constitution. A Magistrate appointed by the State as delegate of the Office of Governor, is not the same as two Justices of the Peace appointed on the recommendation of the local Member of Parliament. It is a Constitution change and requires a referendum. (11- Queensland statutes 1828- 1962 Vol 3 p 221)

I would now like to turn the Courts attention to the previous judgements in the lower courts. Given the nature of the ligamen binding the State and Federal principles it is submitted it is not necessary to expound on their honours dicta but some response is invited. In the District Court of Appeal at Kingaroy his Honour Boyce J was given to the view that there is "no inconstancy…. shown between the relevant statute law of the State of Queensland and the statute law of the Commonwealth of Australia." With all due respect his honour neglected to observe the invocation of Federal Jurisdiction in the matter and thus inconsistency of applied jurisprudential law. The vagueness of his honours remark is all the more mystifying given there is no relevant Commonwealth statute pertaining to the Weapons Act of Queensland, as rightly pointed out by Lebsanft SM in the Magistrates Court at Kingaroy and tends to be provocative of Judicial review.

The Magistrate erred in referring to the case of Walker v. New South Wales (1994) ALJR at 111 and Gibbs J said in Coe v. The Commonwealth (1979) 53 ALJR 403 at 408 (In the judgement of Gibbs J in Coe v Commonwealth (1979) 53 ALJR 403 at 408 the court was evenly divided.)

These are cases which turn upon the question of Aboriginal Sovereignty as confined to State and Federal Jurisdiction, and in this instance are misapplied.

The learned Magistrate further quotes from a supporting case in the same proceeding and then in another also turning upon Aboriginal sovereignty but respectfully in doing so fails to provide further substance to his deliberation.

Customary Aboriginal law is irrelevant to my case. I demand that customary UK laws called the "Common law"- laws codified in the Magna Carta and the Bill of Rights (1688)- be applied

I am subject to legally valid laws of the State or Commonwealth. In fact I insist that these laws be applied- in particular section 78B, The Magna Carta and the Bill of Rights

I am not arguing that the courts have no Jurisdiction (as was done in the cases stated by the Magistrate).

The correctness or otherwise per se, of the arguments in regard to Magna Carta raised in the proceedings of Skyring and Cusack, and upon which the learned Magistrate also relies, have no real bearing upon the substantiveness of mine in this case.

However it is the assertions contained in Chestermans J (Criminal Court of Appeal) judgement in regard to Sir Edward Cokes Commentaries that invite some address in detail.

In seeking reliance upon the minority judgement of Dawson J in this court in Kable v DPP the learned judge was applying error of law and furthermore, his interpretation of Justice Dawsons judgment was, with, due respect, erroneous. When one looks at the actual dicta one finds the intent of the wording to be distinct from that of the meaning drawn by the learned Chesterman J. Coke was referring to the High Court of Parliament in his Fourth Institute. Indeed, the Fourth Institute begins with the wording " of the High and Most Honourable Court of Parliament. This Court consists of the Kings Majesty in his Royal politic capacity, and the 3 Estates of The Realme." The whole of Parliament then being a Court, as interpreters of communis juris Anglia would naturally be transcendent and absolute as in absolution before God, and perforce had to be upholden and not in contradistinction to their charge. Bills of Attainder then, which were Acts of Parliament contrary to natural justice, could never be valid law and accordingly, in the form of the Community Protection Act of NSW of 1987 was struck down for that very invalidity as recently as 1996 by the High Court.

The Australia Act

In Essenberg v The Queen (B55/99) the respondents stated that the Australia Act, specifically Sec 3, subsection 2, some how provides for unrestrained autonomy of law making by the state of Queensland and that thus the Weapons Act was legal.

I refer to the article - National Gun laws and Constitutional Matters and the prerogative of the Crown. It states "In the enactment of the Nations Gun Laws by the State Parliaments of Australia, it was essential for those Parliaments to use part two of Section Three of the Australia Act, 1986, which allows Australian governments to enact Laws contrary to the laws of England.

This section of the Australia Act has the provision to allow Australian State Parliaments to enact laws contrary to the Common Law Rights of Her Majesty’s subjects (Australian Citizens) and also contrary to the prerogative of the Crown in respect to upholding those rights contrary to rights that have been reaffirmed by Statute.

The Monarch cannot lawfully or willingly grant Royal Assent to legislation that undermines or allows an enactment of laws contrary to Her Royal Prerogative, unless she has been led to believe this legislation is the will of her subjects, that has been determined by referendum. There was NO (Federal) referendum held to permit the enactment of this Section of the Australia Act".

The Australia Act (1986) and Section 51 (xxxviii) Constitution

The Preamble nugatory reveals an intent inconsistent with Australia’s precedent legal status as a self-governing polity, judicially independent of the Parliament at Westminster, by virtue of Federation in 1901 , which under section S74 of the Commonwealth Constitution precluded any appeals to the Privy Council from a decision of the High Court, in recognition of jurisprudential autonomy. The States, whose identity is derived from S106 of the Commonwealth Constitution, are effectively caught similarly by S74. May it be added , the Royal prerogative , by which avenue clause 3 of S74 special leave of appeal is afforded from the High Court to Her Majesty-in-Council, is not an intermeddling process, but further acknowledgement of the nation’s establishment at common law (as is the first clause of S74) under the common law auspice of equitable justice under the Crown. The Prerogative, in this capacity, is thereby not sustainable of bar by statute. (See S11(I) Australia Act(1986)). The Commonwealth of Australia, augmented by virtue of it’s peoples consent, was ipso facto founded upon unobstructed self-determination , emerging as an untrammeled political and juridical corpus, rendering the stated intent of the act nugatory. Further it will be shown through out the body of this analysis that the Constitutional environs of Australia and the UK remain indiscerptible

The second clause of the preamble of the Act states the fundament of its genesis is drawn upon Section 51 (xxxviii) of the Commonwealth Constitution. In the reading of the Act as a whole, it becomes evident that its main intent, broadly, is the dissolution of legal ligamen from the Crown of the UK by repeal of certain machinery acts, purportedly altering thereby, the powers of the Head of State, enlivening S128 of the Constitution, but of which there is no reflection in the Act, Within Section 51(xxxviii) of the Commonwealth Constitution there is no scope upon which to predicate abscission from the auspice of the Crown of the United Kingdom: to read otherwise is to vest it with meaning which is misrepresentative of the whole of that Act. While it was envisaged during the 1891 Convention Debates that Federation would result in Autonomy, there was no intent to sever the Australian polity from it’s Constitutional basis in the UK- quite the contrary, and many historical authorities consolidate this view. There is no intent to read into the preamble of the Commonwealth Constitution to dispossess Australians of their legal heritage. To claim such provision in an implied sense under S51(xxxviii) is antithetical to any basis for authority by Constitutional continuum. The plain meaning of S51(xxxviii) does not confer power upon the State and Commonwealth Parliaments for abscission from the vinculum of their original source, for there can be no Constitutional atrophy of the founding nidus, for in the case of Australia the principle applies that "the law should postulate one or more first causes whose operation is underived …there must be found in every legal system certain ultimate principles from which all others are derived but which themselves are self-existent."(the words of Sir Owen Dixon, Chief Justice of the High Court of Australia, 1957, quoted from his extra-judicial paper "The Common Law as an Ultimate constitutional Foundation" 31 ALJ) The Australian politico/legal system does not stand alone and underived, to "where the memory of man runneth not." The construct of s51(xxxviii), when read as a virent component of the Commonwealth Constitution, cannot not be understood but as a reserve power to be used beneficently for the Australian nation expressly provided for by the words "within the Commonwealth", and constrained thereto. The dispossessive nature of the Australia Act cannot be interpreted as a beneficent outcome, for contrary intent to S51(xxxviii), and any contrary imputation is not assisted by the extra-territorial provision of Section 3 of the Statute of Westminster Adoption Act 1942, which, provides for the legitimate defence measures in the war then being conducted by His Majesty.

Dispossession is not synonymous with autonomy, and in the words of Kitto J., a Justice of the High Court for 20 years, from 1950 to 1970, on the subject of taking liberty with the law: "I think it is a mistake to (be)…. concerned with ‘changing social needs’, …or that it is to be decided by ‘designing’ a rule…to discuss(the matter) in terms of ‘judicial policy’ and ‘social expediency’s to introduce deleterious foreign matter into the water of the common law- in which after all, we have no more than riparian rights." Airlines of NSW p/l V NSW (No.2) 1965 113 CLR 54 @ 115

Sir Edward Coke termed it "innovation in the law", but it’s true epithet has always been ‘ultra vires’.

"Excess of jurisdiction is want of jurisdiction" WC Wentworth

Extra-Territorial Jurisdiction Misapplied

In Gould and ors V Brown S204/1996 (8-4-97) it was argued, broadly, that due to lack of power vested in the Colonial Legislatures in regard to extra-territorial jurisdiction, they were, accordingly, unable to confer such power upon the Commonwealth Government under S51(xxxviii) of the Commonwealth Constitution, and are thereby unable to enjoy the reading down of Section 107 to any other effect. The authorities cite that dealing with the Parliament of the UK can be viewed as an ‘external affair’, but even so, S51(xxix) (external affairs) does not apply to the States, who are precluded by ultra vires in the first instance, voiding, thereby Section 2(2)of the Australia Act, ab initio, insofar as any law which is part of the (body of) law of the State.

Sir Harry Gibbs’s judgement in Kirmani v Captain Cook Cruises P/L (No. 1) (1185) 159 CLR 351 found for the view that that which forms part of the body of law in Australia remains in force, as follows: "There remains the question whether an act of the Commonwealth Parliament which repeals an act of the UK in so far as it is part of the law in force in Australia, is, for that reason alone, a matter with respect to external affairs. The answer is….clearly in the negative."

Indeed, the body of law to which our argument refers in context of the Australia Act is that 1) the Prerogative is the enabling mechanism by which the colonies themselves were established, and thus forms the matrix of their existence, internuncially bound within their legal fabric. Reference here is made to the Australian Constitution Act (1842), (5 & 6 Vic. C76) (Imp.), the Australian Constitutions Act (1850) (13 & 14 Vic. C59) (Imp.), and the Letters Patent of 6^th June 1859 erecting Moreton Bay into a Colony, under the name of Queensland. (as upheld by SS 8 & 9 of s West)

Though the States’ participatory identity in the Commonwealth is drawn from the Commonwealth Constitution Act 1900 (63 & 64 Vic. C12) their body politic rests upon a Colonial foundation, and remains coexistent with the Commonwealth.

In the Queen v Sam Scott No.SCC75 of 1990; (1993) 114 ACTR 20 (1993) 65 A Crim R 182; (1993)ACTSC 12 (22 February 1993) Higgins J’s judgement came down for the status quo: "The expression ‘the Crown in right of…’ has been used variously to express identification either of a separate Realm or of a separate, even if subordinate, body politic… However if under the aegis of one of those Crowns, there is created a different and distinct body politic, such a body politic may have separate and distinct liabilities and powers but, so far as is relevant, be subject to the exercise of power by the same holder of the office of Head of State as the dominant legislature. It may not have or be given the power to alter the succession to or description of that office" (of Queen).

Insofar as the Commonwealth it is founded upon plebiscite, the same being acknowledged in clause 1 of the preamble of it’s Constitution and expressly provided for by Section 128 within it in regard to all matters of Commonwealth restructure, in acknowledgement that issues of grundnorm, must be referred to it’s matritudinal genesis. Plebiscite, therefore, forms the vera causa of the body of law for the Commonwealth, and ipso facto cannot be abrogated via arrogation of power by the executive, and any resultant legislation got by such means would be necessarily void and of no effect.

Parliamentary Supremacy Unfounded- Australia Act(s) Provide No Basis- Australian Parliaments are Creatures of Law

Sir Owen Dixon, in his article, "The Common Law as an Ultimate Constitutional Foundation" op. Cit.,at page 242, had previously brought to light the cause of the deficiency of plenariness: "…the principle of parliamentary supremacy was a doctrine of the common law as to the Parliament at Westminster (only; due to actual ascendancy of the common law at the revolution) and not otherwise a necessary part of the conception of the unitary system of government. There was no inherent reasoning for supposing that in virtue of the Colonial Laws Validity Act 1865, the same supremacy over the law should be conferred on a Colonial legislature as the Parliament at Westminster possessed at common law. (particularly as the colonial legislatures were creatures of the Prerogative and thereby not constituted at common law.) Nor…was there any warrant for…the assumption… that in a …Dominion Constitution combined with the Statute of Westminster, a unitary system of government in a sovereign state must (necessarily) involve such parliamentary supremacy over the law."

Sir Owen went on to say (at page 244) that parliamentary supremacy itself was a creature of the law, and, in our view, an arrogation of the (common law) prerogative thereby, and as such always ultra vires of it. "Every ordinance must interfere with the common law" says Street in his ‘A Treatise on the Doctrine of Ultra Vires’ (pg. 409 1930 edition), citing the finding in Middleburg Municipality v Gertzen (1914) AD 544, 546 at pg. 409 "and constant difficulty arose, which was (purportedly) removed by the Colonial Laws Validity Act." (our interpolation). "Ordinance" must be read for "statute", ascribing to the term its decretal nature, colore officii, (in contrast to the equitability of jus vested in right of the people) and thereby self descriptive of arrogated power. In an earlier critical analysis, it was concluded that "lex and consuetudo Parliamentii is not introduced as a part of the common law into a settled colony." (Webb, Compendium of Imperial Law, p19), and therefore does not, and cannot, arise per medium of residual power, for there being no residual, dormant or latent sovereignty in a subordinate legislature (Dixon; "The Statute of Westminster 1931", 10 ALJ 1936).

At page 416, alongside the annotation ‘No colonial Legislature sovereign’, Street (ibid) says as follows: "Legislatures, other than the sovereign legislatures of the Empire, are comparable to corporations from many standpoints… but there can be no Colonial Legislature with powers unrestricted as those of the common law or ‘ordinary’ corporations; and where some such power was claimed for the Legislature of Quebec, Lord Hobhouse said (Bank of Toronto v Lambe (1877) 12 AC 575, 587): ‘It has been suggested that the provincial legislatures possess powers of legislation either inherent in them , or dating from a time anterior to the Federation Act, and not taken away by that Act. Their Lordships…. Adhere to the view which has always been taken by this committee, that the Federation Act exhausts the whole of the legislative power."

At page 417 (ibid): "….colonial legislatures… owe their existence to the direct authorisation of the Crown, acting generally in virtue of the Prerogative, but sometimes also under statutory authority."

Sir Owen Dixon (op. cit. 10 ALJ supplement 1936), at page 106, notes that insofar as inherent parliamentary supremacy, it’s foundation needs to be upon "political convulsion, as the legislative organ of a government erected by the people and originating in their act; not as a parliament established by, and therefore under, the law." He continued (ibid): "The Privy Council treats it as a product of the law, as a legislature established by statute. So considered, it cannot be sovereign over the law. It is the creature of law. Its powers are defined by law…

According to the principles of our law which are at once rudimentary and fundamental, an excess of power is void. It is void because it is an attempt to do what the law does not authorise.

(From) whence did the legislature of the Free State obtain a positive power to amend it’s own power of amending the Constitution so as to extend it? This appears to me to be a question as to the ultimate source whence a Dominion obtains its authority?" Under discussion was Moore v Attgen of the Irish Free State (1935) AC 484

The question is not for determination, for legal constitutional history provides only one answer.

In China Ocean Shipping Co. v South Australia (1979) 145 CLR 172 (Sir) Garfield Barwick, Chief Justice (as he was then) of the High Court, was completely candid on the above point in regard to the Australian Federated position. He says (at page 182): " The Commonwealth, by the grant of the Constitution , in my opinion, quite clearly became a colony. Indeed it might well have been concluded that it became the colony. The former colonies, whose people were united in the indissoluble Commonwealth, could have been considered no longer to be colonies having become constituent states of the new Commonwealth albeit with constitutional powers identical in content with those formerly existing but now deriving, but subject to its terms, from section 106 of the Constitution. But, …the new Commonwealth became itself another colony, self governing, but lacking both political and constitutional independence."

It follows, self evidentially, that sovereignty cannot be obtained by dispensation. While the Statute of Westminster Adoption Act (1942) (C’wealth) and the Australia Act(s) of the Commonwealth and the Parliament at Westminster received the Royal Assent, the exercise in toto results in inexorable reversion to the status quo of Dominion and Colonial Legislatures in perpetuity. In other words, the Commonwealth and State Parliaments, being creatures of the law, and devoid thereby of autocephalous foundation, could not, by an act of the legal wand, obtain abiogeneric independence, for the acts upon which they seek to rely, namely the Statute of Westminster Adoption Act (1942)(C’wealth), and the Australia Act (1986) (C’wealth) suffer the same limitation- themselves being creatures of the law. Any purported arrogation of juridical power predicated upon statutory dispensation is ultra vires of the common law and unknown to it, and is legally fictitious. The Australian lego-political system as a product of the Imperial nidus, remains, ipso facto, encintured, and is thereby unable to be severed from it within its terms of reference.

Imperial Parliament Paramountcy Continues in Force.

In his paper presented to the Law Convention of 1936, (10 ALJ Supp 1936, op. cit.) the Honourable Mr Justice Owen Dixon (as he was then) was of the view that the Statute of Westminster (193) (Imp) did nothing to further the Commonwealth or State Parliaments, respectively, towards absolutist self government, but, obversely, pointed out at length that the statute only consolidated (strengthened) the powers already extant in respect of autonomy.

"The purpose of the main provisions of the statute (he said) is to abrogate the rules of law which were thought to be inconsistent with the existence of complete legal autonomy and complete legal equality. The accomplishment of this object by legislation was necessarily difficult. For, in the first place, it brought the promoters of the statute face to face with the only limitations there is upon the omni-competence of the Imperial Parliament. The limitation necessarily arises from that parliaments supremacy over the law. No law it makes can deprive it of supremacy over that law. The last expression of legislative will repeals all prior inconsistent laws. So, long, therefore, as the Dominions remained under the jurisdiction of the British Crown, the theoretical power of the Parliament at Westminster to make laws extending to them could not be extinguished… (also)…the Dominions did not all desire that the power should be extinguished… the framers of the statute, therefore, contented themselves with endeavouring to insure that it would not be exercised except upon the request of the Dominions. But this device would not give quasi-autonomy or quasi-legality in law so long as statutes of the Imperial Parliament, existing or future, prevailed over Dominion legislation. It was therefore considered necessary to attempt to reverse the rule of Paramountcy… to enable the legislature of the Dominion to enact laws which should prevail over the statutes of the Parliament at Westminster… there are difficulties again in the execution of that purpose… First, the proposed rule could not prevent the Imperial Parliament from afterwards enacting a statute containing some sufficient expression of intention that it should operate in a Dominion, notwithstanding any law of the Dominion to the contrary. Such a statute would necessarily prevail over local statutes even if subsequently (re)enacted….For, if it were open to the Dominion Parliament to legislate inconsistently with it, the amendment would not possess the controlling force necessary in a rigid constitution…

In the second place, the constitutions of the Dominions…consist in Imperial Statutes. Powers of amendment are conferred by those constitutions… But various limitations are imposed upon the power; and, in any case, a power to amend laws inconsistent with a constating instrument is not necessarily the same as a power to amend it.

Thus, in the project of removing the binding force of the Imperial statutes, there is inherent the question, what binding force will a Dominion Parliament possess?" (at page 98, 99)

The answer, of course, is self evident- without abiogenesis: "a founding ‘act of the people/ political convulsion’" as his honour has put it, there is none.

Politics as law: Statute of Westminster and the Australia Act.

Mr Justice Dixon earlier noted in his paper on the Statute of Westminster (op, cit), its curious character, shown by the statutes preamble to be political, rather than a document of legal law, saying, at page 98, that the motive for insertion of the recital "bore no resemblance to the reasons which are supposed to justify the use of a preamble."" He comments further (ibid); "No one whose reading includes judgements and juristic writings upon constitutional matters can fail to perceive how common it has become under colour of obtaining aid in the elucidation of the existing law, to invoke principles and practices which statesmen have sought to establish as conventions governing and restricting the actual exercise of admitted powers. Indeed sometimes they are described in a manner elevating them ALMOST to the level of legal principles. This tendency has peculiar dangers…..It may be that those responsible for the introduction of the recital into the Statute of Westminster hoped that, rightly or wrongly, some such use might be made of the declarations and resolutions set forth in the reports to which it refers (as extension of law) Under the fostering influence of the recital strange plants may grow. Claims may be made to treat the declarations and resolutions as matters that Courts may notice and act upon in such a way that they become, in effect, a source of Constitutional law. THIS THEY ARE NOT AND CANNOT BE."

Similarly the preamble to the Australia Act (1986) (C’wealth) plainly shows another attempt to institute political innovation as legal law, taking precedent from the Statute of Westminster.

Barwick CJ, as he was then, in China Ocean Shipping (op. cit.) was, broadly speaking, of the view that at law, political and legal grounds occupy areas of divergence (and cannot be hybridised). He cited the Rhodesian cases of Madzimbamuto v Lardner-Burke, and Baron v Ayre (1966) RLR 756 (p182) when he said (at p 182) "The Supreme Court of Rhodesia, which accepted the defacto independence of Rhodesia by the Unilateral Declaration of Independence, acknowledged its illegality, conceding the continuing power of the Imperial Parliament notwithstanding the grant of Autonomy by the 1961 Constitution (an autonomy quite as large and extensive as that to be derived from the Australian Constitution)." (our emphasis)

In Similar vein his Honour Mr Justice Dixon (as he was then), op. cit. 10 ALJ (1936) observed (at p 99-100), that, at bottom, cognisance by convention was one thing, but they do not operate at law to diminish the power of that (the Imperial) Parliament."

It is therefore apparent on good authority, that both the Statute of Westminster and the Australia Act have the dubious force of convention, but no legality, and are no true bar to Paramountcy of Imperial enactments at any time. At the same time our claim at previous hearings for virency of Imperial constitutional enactments which form the body of law for this State under the Imperial Acts Application acts 1984, and relatively for the Commonwealth Constitution remain viable.

The Australia Act (the Act) fails as law for the following reasons:

Void in se: its claim for ‘conformity’ in its preamble with sovereign status is plainly vacuous for sovereign status had already been established under the Crown at federation. The word ‘conformity’, therefore, provides no legal cause upon which to predicate legislation for the purpose of alignment with established law, and becomes superfluous thereby. The descriptions following in qualification, viz., ‘sovereign, independent, federal’, have also no legal predicate, being merely an attempt hybridising socio-political status into law, but having no real force, and are reduced to tautology. Each of the words, purportedly forming the essential ingredients as its vera causa, individually or in combination, render it raison d’etre to a nullity.

However within its provisions, the intent of the act becomes manifest. Its framers motivation appears strongly to turn on the word ‘sovereign’, allegorical in this context to sui generis, an in its purported achievement of legislated abiogenesis, this act has attempted to establish in Australia what histories experience has shown legitimately can only be established by popular will. Alas, for its proponents, the act has no legal grounding even in its fundament, and for evasion of entrenched constitutional process, the grundnorm of the body of constitutional law in this country, as expressly provided by the constitutional provisions in this states Constitution, and that of the Commonwealths, namely, section 53 and section 128, respectively. The provisions of the Act, so far only touched upon, will be examined more closely in approaching argument.

The Grounding for the Act , as shown by its preamble, is merely the conferences which took place between the Prime Minister and State Premiers during June of 1982 and 1984- a la sourdine- for the ‘taking of certain measures’, its primum mobile then, being executive act.

A contention was raised in Judamia & ors (hereinafter ‘Judamia’), that consent by the Australian constituency for federation was somehow ongoing authority for the Australia Act (Request) Acts, implying accrual to the executive by latency. The peoples consent possesses a limited dynamic in its application to a particular outcome, and ipso facto must be renewed on a regular basis. It cannot be enlivened as though dormant, for in essence, renewability suggests an inherent sunset clause quality. Anterior approval on a constitutional question in 1900 also cannot be held to speak for the constituency 85 years later, and especially in view of an opposite interpretation. Support for the contention raised in Judamia was cited as Murphy J’s dictum in China Ocean(op. cit.) (a misquote, for actually appearing in Kirmani v Captain Cook Cruises P/L (1985) CLR 351 at pg151 (hereinafter called Kirmani) but even so , such can only be drawn by stretch of inference, for his Honour was speaking in reference to the acceptance in general by the Australian people of the Commonwealth Constitution, and it is only by zealous extension that such basis for any express or implied authority could be arrived at.

It follows, therefore, that given even the legal gymnastics of’dormant, tacit, referendum; the power of section 51(xxxviii) cannot be enlivened for no principle of dormancy of ongoing popular consensus. Further, it was argued in ‘China Ocean’ for the plaintiffs, that where a State Constitution , pers se, does not have any particular status (in view of unitary government) (McCauley’s case), it does have the status of defining the way in which legislation is passed- manner and form was suggested as an example. Where specific matters are entrenched, such entrenchment’s are enforced and legislation passed in a manner other than the entrenched way is invalid. Trethowan’s case and Clayton v Heffron were nominated as cases in point. (at page 26- proceedings)

Similar conclusions were drawn by the majority in KIRMANI, comprising Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ, when they found, concisely speaking, that any change or modification to organic law required a constitutional head-of-power, that being, in the current context, a first principle of law which gives rise to an act within the scaffolding of the constitution. There is no first principle of law upon which the Australia Act relies.

Further, that the Commonwealth has no power to legislate for the States, is settled law, and insofar as the Australia Act, by principle of overriding of legislation purports to do so, albeit in a symbiotic arrangement with the States, and we refer to the Australia Act (Request) Act Qld 1985, makes it also void ab initio for repugnancy to the Federal compact. But, further also, it is beyond the competency of the States legislatures to initiate any such alteration in the Constitutional fundament, a claim for sociological basis (‘Prime minister… and… Premiers… agreed) in the Australia Acts preamble does not provide any validity, but, as stated opinion, seeks impliedly to evade the manner and form provisions of the respective State and Commonwealth Constitutions.

In the Australian Communist Party v The Commonwealth (1951) 83 CLR xxxx, it was brought to light during argument for the plaintiff that "Parliament cannot define or extend it’s constitutional power facts or by a legislative statement of connection between a particular law and a head of power. The powers of the Commonwealth Parliament are defined, and therefore limited, by the Constitution. The (High) Court has held on several occasions that the opinion of the Parliament or the opinion of the Governor-General or of a Minister that a particular matter is within the legislative power of the Commonwealth Parliament did not affirmatively establish that the matter actually is within such power. (per Latham CJ at para 36) Cases cited in support were ex Parte Walsh and Johnson (1925) 37 CLR 36, South Australia v The Commonwealth (uniform Tax case) (1942) 65 CLR 373 at page 432; Reid v Sinderberry (1944) 68 CLR 504. The defendants did not dispute the authority of the cases mentioned.

Given that the Australia Act of the Commonwealth seeks to be established by the reserve power mechanism of section 51(xxxviii), rather than a first principle of law expressed under that section, and for the very purpose of extension of Constitutional power, in contradistinction to lawful constraint by it, it falls with the precedent prohibitive judgements of the High Court, and, in further parallel, untested opinion of the heads of respective executive governments cannot be held as any basis upon which to predicate a legal act. A fortiori, just as the Commonwealth cannot legislate on the basis of opinion, it is similarly precluded from doing so on the basis of status, status simply being social designation in discriminatory application. The words inclusion in the preamble is empty of legal explanation and speaks to nothing more than social aspiration. The ensuing descriptions of the Commonwealth of Australia as ‘sovereign, independent, federal’ providing only subsidiary ballast, so to speak, as adjectives, and suggestive thereby of susceptibility to displacement by any other description, albeit ‘federal’ appearing also in the sense of a truism. On such purport, what is to prevent, ex hypothesis, another parliament at another time from legislating Australia’s status in any other sense? In Sir Owen Dixon’s words "that motive bore no semblance to the reasons which are supposed to justify the use of a preamble." (supra. At page 98)

Again, the preamble is a political statement only. Sir Owen Dixon in his article on the Statute of Westminster (supra) was at pains to point out that politics is not law, which disguise is not successfully passed off for being unapparent to any of long experience in reading judicial text (ibid). Politics as law lacks substantive legal premise, as previously shown, for dichotomy of genesis- law being an exegesis of living principle, while politics is simply ignis fatuous, the very word ‘politician’ stemming from the Latin pollicitatio, from polliceor- to make boundless promises (excluding, by implication, any substantive element). (For that reason, salient legal reductionism has never shared a happy coexistence with political rationale). Thus, bereft of legally grounding principle, again, it is shown that the Australia Act (C’wealth) does not stand at law.

Even from the standpoint of the doctrine of repugnancy, it was held in KIRMANI, that the doctrine, per se, cannot, and does not, provide unqualified basis for in vires law, and further, the purpose of the doctrine was to simply consolidate local legislative autonomy, and not provision as a leaping-off point for legal adventurism. Those who would cite Moore (Moore v Attorney-General of the Irish Free State (1935) AC 484, hereinafter MOORE) in support of Constitutional expansionism err in their view, for that decision was based , ab radix, on the legal principle of a treaty between the people of the Irish Free State and the Government of Great Britain, which was given Imperial Parliamentary recognition As the Irish Free State (Agreement) Act 1922, and subsequently provided the basis for the Irish Free State Constitution Act 1922. There is no treaty between the Australian people and the Government of Great Britain upon which to base an Act of abscission from the Imperial Parliament. Furthermore, the decision was taken in light of the unitary government of the Irish Free State, and not applicable to a federation (per Dawson J, KIRMANI at page xxxx) for the latter’s, as it were, compound sovereignty. Dawson J’s perspective on the true basis of sovereignty accords, in principle, with Sir Owen Dixon’s (supra)(op.cit.), that is, constitutional change must be instituted by direct will, not by purport of Parliament or executive, proxy.

In this context, Justice HV Evatt (as he was then) points to that which is good law in the Statute of Westminster (1931), in his monograph circulated contemporaneously, and cited by Wilson J (KIRMANI at paras. 17-19). In His Honour’s Justice Evatt’s view, there was no separate head of power awarded to the Commonwealth by the statute’s section 2(2) for the purpose of Constitutional expansionism (sic), this view concurring with Sir Owen Dixon’s (op. cit.), and others’. Indeed, in Justice Evatt’s words, any alteration to the Constitution or the powers of the Commonwealth Parliament "Must be done by the people of Australia in pursuance of a referendum in section 128 of the Constitution." In a subsequent paper presented to the 1936 Australian Legal Convention, His Honour drew attention to the express preservation of the constitutional integrity of the States under section 8 and 9(1) of the Statute (ALJ Vol 10 (1936) Supp. 96 at page 107), and given these express safeguards of States’ rights, there continues to be only one avenue open to them through which to institute constitutional change. The States gained no new rights at Federation, and none in pursuance of the Statute of Westminster, though incontemporary interpretation, the statute is relied upon as the forerunner to the Australia Acts- self-evidently in error of law.

Invalidity of the Queensland Governor after 1986

The Magistrate erred in law and was in error of process by not taking into account the requirement of Section 53 of the Queensland Constitution and in not giving adequate consideration to the issue of the validity of the Australia Act 1886. The validity of the Weapons Act 1996 depends on this.

The Governors position being subject to change as the Queens representative is caught by section 53 of the Queensland Constitution.

Certain Measures to be supported by referendum

In Section 53 the Queensland Constitution states: - 53(1) a Bill that expressly or impliedly provides for the abolition of or alteration of the office of the governor, or that expressly or impliedly in any way affects any sections of this act namely Sections 1,2,2A,11,11B,14: and This section 53 Shall not be presented for assent by or in the name of the Queen unless it has been first approved by the electors in accordance with this section and a bill so assented to consequent upon its presentation in contravention of this sub-section shall be of no effect as an act

Section 53 expressly provides protection to the office of Governor, it even uses the words "in any way". Sec 53 specifically protects any change to section 11 Office of Governor. The Queensland Constitution states in Section 11 b, Governor to conform to instructions, that the Governor cannot give assent to Bills which are repugnant to the Queen’s Instructions and those instructions are where our Constitutional Protections are formally entrenched.

The validity of the Australia Act of Queensland thus turns upon the observation and compliance with section 53 of the Queensland Constitution Act.

There was no compliance by the Queensland government of the day, not having submitted the Australia Act (Requests) Act accordingly to referendum as required by law thereby rendering it void ab initio.

"Constitution's Royal Instructions to the Governor," (Imperial) cls 7-10, page 600 (vol.ii)
Part vii: DESCRIPTION OF BILLS NOT TO BE ASSENTED TO -
Governor shall not, except in the cases hereunder mentioned, assent in our name to any bill of the following classes:-
1. Any Bill for the divorce of persons joined together in holy matrimony.
2. Any Bill whereby any grant of land or money, or other donation or gratuity, may be made to himself.
3. Any Bill affecting the currency of the state.
4. Any Bill the provision of which shall appear inconsistent with obligations imposed upon us by treaty.
6 ..... unless the same shall be repugnant to the Laws of England, or inconsistent with any obligations imposed upon us by treaty.

On the point of observation of due process Sir Joh’s Speech is quite lucid vis: By this unique legislative means, it has been possible to resolve the legal and political difficulties inherent in the historic step we are taking.

The Governor having been reduced to the level of a State commissioner as an intended outcome of the Australia Act for the purpose of fulfilling legislative format points to the nub of State executive intent in direct confrontation with the rule of law.

To Quote Lord Justice Laws in an analogous case " here lies the real issues in the case. I will deal first with (the) submission that a Colonial Legislature, enjoying power to make laws for the peace, order, and good Government of the territory where it possesses jurisdiction is by our law not the agent or delegate of the body which created it... but this submission has no teeth unless it is intended to persuade.... that the Commissioner may legislate absolutely as he chooses. Such an argument would of necessity suggest that an (legislation) is valid irrespective of the terms of (any prior enabling constraints)... so understood the submission merely invites our entry into a barbarous world where there is no rule of law; the commissioner would be above the law..." Secretary of State for the Foreign and Commonwealth Office, R v. [2000] EWCA 78 (3rd November, 2000)

He continues, having cited Burrah (1878) 3 app 889 Here then it was plainly accepted that a legislature created by a measure passed by a body, which is legally prior to it, must act within the confines of the power thereby conferred. With great respect I would say nothing could be more elementary ... there is... a risk of some obfuscation arising from descriptions of bodies in the commissioners position as a legislature, even a sovereign legislature. Certainly he legislates, but he does so only within the powers conferred upon him by a higher authority. This argument that the commissioner (Governor) is not the agent or the delegate of the Queen is wholly bloodless.

And further: "neither an appeal to those dicta which assert that a colonial legislature is neither an agent nor delegate of the imperial parliament (or the Queen in Council) nor any reliance on the Colonial laws of Validity Act can suffice to enlarge the power of the Commissioner (Governor) to make laws beyond what (a true construction of the enabling act allows) However broad the power in point of theory if the chosen last is (for our purposes is the Queensland Constitution Act) the boot can be no bigger".

In other words there can be no legal basis for positivist expansionism.

It follows thereby that the assent to in reference to this particular matter –the Weapons act of Queensland- by a government functionary, whose legal capacity is reduced to that of titular identity, cannot lawfully complete the process of ANY legislation – which remain at law un-assented and non viable

I submitted a copy of Section 53 of the Queensland Constitution, an extract out of Hansard 26 September 1985, Queensland- the speech by Sir Joh Bjelke Petersen on the AUSTRALIA ACTS (REQUEST) BILL , a copy of UK Secretary of State for the Foreign and Commonwealth Office, R v. [2000] WCA 78 (3rd November, 2000) Case No: CO/3775/98 and an article - National Gun laws and Constitutional Matters and the prerogative of the Crown, to the Magistrates Court

I would like to bring to the courts attention certain provisions of the Australia Act (Requests) Bill 1985 of Queensland and the Constitution (Office of Governor) Act 1987 No 73. That identified precisely as it purported intent to repeal in 3b, Section 13 Provisions of Former Acts Respecting the Allowance and Disallowance of Bills Reserved, Order in Council Section 14 and the subsequent effect on the position of the State Governor and the validity of legislation subsequent to 1987 in Queensland.

Both were passed by the State of Queensland but were null and void as they affected the Office of the Governor and did not go to referendum as required by Section 53 of the Queensland Constitution

In ascertaining the true meaning behind an act (Pepper v Hart) a reading of the Queensland Hansard of 1985, provides lucid material. Through out the body of the speech, being by the Premier and treasurer at the time, the Honourable Sir Joh Bjelke-Petersen, it is manifest that the Australia Acts (Requests) Bill was predicated upon the evasion, scienter, of constitutional process as by law established. The purpose of the Act and extra-Constitutional facilitations are precised in the opening remarks as follows: "This Bill is the first stage in the implementation of the agreement reached between all State Governments and the Commonwealth Government to remove the constitutional links which remain between Australia and the United Kingdom Parliament, Government and judicial system and to substitute new constitutional provisions and procedural arrangements….. following extensive consultations that have taken place over a number of years between the Commonwealth, State and United Kingdom Governments and Her Majesty The Queen. In those discussions, the Queensland Government has at all times played a leading role"

The intent of the Australia Act (Requests) Bill as derived from Sir Johs speech was to sever UK Parliamentary jurisdiction over Queensland and by doing so dissemble the crown in right of her Majesty. The use of parliamentary material to elucidate the intent of legislation is sanctioned in Pepper V Hart

In his speech Sir Joh says "A major change to be effected by the Australia Acts concerns State Governors. Except for the power of appointment and dismissal of State Governors, Governors will be vested with all of the Queen’s powers and functions in respect of the States. Her Majesty will, however, be able to exercise any of those powers and functions when she is personally present in the State".

He also says that "Subclause (5) removes section 11B of the Constitution Acts (Queensland) its references to instructions to the Governor from the Privy Council or a Secretary of State in the United Kingdom. The instructions that were contemplated by section 11B concerned the reservation of Bills, and clause 9 of these Australia Acts ensures that there will in future be no need for, or possibility of, reservation. The other provisions of subclause (3) remove further references to the signet. Subclause (4) makes a purely consequential amendment to section 14 of the Constitution Acts, in view of the amendment of section 11B".

The intent of the Australia Act had a two-fold effect.

Sever the jurisdiction of her Majesties UK parliament thus dissembling the influence of Her Majesties Crown over Australia yet some how vest purported residual power of Her Majesty in the State Governors.

Surely the first port of call insofar as consultation would be necessarily the population of Australia, in any case, the voters of Queensland, given the magnitude of the intended outcome. Such consultation would have to be fostered community discussion and resulted in an informed vote at referendum. However the discussions, as revealed is Sir Joh’s speech, having been conducted over a number of years, it could not be said it was due to inadvertancy that the electorate was not consulted. This becomes glaringly obvious as Sir Joh continued to elaborate on the collaborative methodology:

The form of relevant legislation has been agreed by all Governments. Ultimately, the key elements will be an Act of the Federal Parliament and more significantly, in our view, an Act of the United Kingdom Parliament, each to be known as the Australia Act, and each identical in all material respects. The two Australia Acts will be proclaimed to come into operation simultaneously. By this unique legislative means, it has been possible to resolve the legal and political difficulties inherent in the historic step we are taking.

The last sentence, in particular, of the above paragraph needs no elaboration, for it admits of intended constitutional evasion by the parties, the word ‘resolve’ being only euphemistic for ‘avoid’, ‘evade’; ‘legal and political difficulties inherent’, again, euphemistic for ‘constitutional question put to the people under section 53 which may not be returned favourable to executive intent’, and ‘historic step’, for profound change of direction- and as can be seen from the text in effect a revolutionary redistribution of the executive power of the Head of State by redefining the role of the Monarch- to be given the purport of law if and when passed by the respective legislatures. In short a populist revolution by executive hand, and control of executive government thereby.

Sir James Stephen wrote, in 1883, of a class of offence against internal public tranquility "not accompanied by or leading to open violence." His article 94 on the subject, published in his digest, at p 298, 299 of his History of the Criminal Law, subtitled "Presumption as to Intention", states as follows: "In determining whether the intention with which words are spoken, any document was published, or any agreement was made, was or was not seditious, every person must be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself"

The following elements of the Honourable Premiers speech provide further substantive material. Sir Joh continues, regarding the manner and form devised for the purpose:

In accordance with the agreed procedure and to satisfy constitutional requirements, before the Australia Acts can be enacted, the Parliament and Government of every State will-

request the Commonwealth Parliament, pursuant to section 51(38) of the Commonwealth Constitution, to enact its Australia Act:

request and consent, in accordance with constitutional convention, to the United Kingdom Parliament enacting its Australia Act; and

request and consent to the Commonwealth Parliament in turn requesting and consenting to the United Kingdom Parliament enacting its Australia Act. The request and consent of the Commonwealth Parliament to the Australia Act of the United Kingdom is required by section 4 of the Statute of Westminster.

Leaving aside the separate substantive issues raised at this juncture, it is, inter alia, completely counter to the principle and interests of "peace, order and good government" that executive governments would choose to institute revolutionary change by constitutional brummagen. No authority can be found for evading legislative due process as by law established. No claim as to "act of state" of " shield of the Crown" can apply. Clearly, an evasion of legislative due process in the formation of legislation is a subversion of it. The method arrived at as set out in the text of the Honourable Premier and Treasurers speech for the purpose of enacting the Australia Act into law, shows clearly a subversive stratagem. Subvero, in Latin, means to overthrow, overturn. For each punctilious circumvolution accorded the propose of attainment of legislation, and ultimately, constitutional, objective, speaks unambiguously to subversive intent, particularly when already lawful avenues are provided by relevant Constitutions , that being section 53 of Queensland’s and Section 128 of the Commonwealth’s. It follows that, a fortiori, the intent of the Australia Act, given it’s meticulous anfractuosity in avoidance of proper constitutional provisions, is to overthrow, overturn the powers of the executive government of the States as by law established, readily apparent from a reading of it’s provisions, especially Section 7, shortly to be examined.

Lord Halsbury, in 1907, held, inter alia, that is was ultra vires of the constitution and the part 4 to attain a legislative objective which alters or abrogates fundamental Constitutional ethic, in that case, by means of secondary legislation. Though the matter in issue was the legality of the Australian Judiciary Act 1903 (C’wealth), which effectively abrogated right of appeal to the Privy Council, infringing the prerogative, as was found, his Lordship went on to say that any such act "was outside the power of the Federal Legislature. And in my opinion it is outside their power to do that thing in a roundabout way." (our emphasis) (Webb v Outram (1907) AC at page 92) The point here being that unlawful legislative device does not give rise to valid law.

The intent of the Australia Act, as stated herein, of the Honourable members speech, and which at once is also revolutionary of section 7: "A major change to be effected by the Australia Acts concerns State Governors. Except for the power of appointment and dismissal of State Governors, Governors will be vested with all of the Queen’s powers and functions in respect of the States. Her Majesty will, however, be able to exercise any of those powers and functions when she is personally present in the State. In the appointment and dismissal of State Governors, and in the exercise of her powers and functions when she is personally present in a State, Her Majesty will be directly advised by the Premier of the State concerned. The Australia Acts thus establish the constitutional role of the Premiers in directly advising the Queen. Her Majesty has already expressed her concurrence in this development, by which the role of the Crown will be adjusted to suit the needs of the Australian Federation."

Again the last sentence, emphasised admits of three declaratory elements and extra-constitutional illapse: the word ‘ development’ here operates as a diastem, contra-distinctive to the surrounding form, and giving rise to constitutional opportunism in the nature of the outgrowth- apophysic to the body of the Constitution, not bound by it’s confines, and only tangential to it. Given Her Majesty has concurred to such a constitutional phenomenon in what capacity can such concurrence be viewed? By prerogative? In which case such constitutional expediencies having historically received purported legal life, (but) on the basis of derogation are ultra vires; or by personal accord, on the basis of ill advice? On either view, there is no scope for Her Majesty’s capacity for consilience in extra- constitutional formulations, and the ‘development’, given it’s unorthodoxy, gains no legal mileage by it, remaining constitutionally tumescent. Elsewhere, in the text of the speech, this arrangement is termed ‘unique’. The ‘uniqueness’ of a law is tantamount to selective application, and as at once admissive of subversion of legal principle.

On the basis of this constitutional excrescence (as in foreign growth,) the "role of the Crown is to adjusted". The role of the Crown having been defined by centuries of settled law, cannot be adjusted by what is tantamount to private agreement, for any purpose. The basis of the word ‘adjust’ is to be found in the French language, and in this context admits of refashioning- a ‘refashioning of the Crown to suit the needs of the Australian Federation’, to paraphrase. Any re-making of the powers of Her Majesty without the approval of the people of the UK and Australia, Ireland, Canada, New Zealand and Newfoundland, would be void in se, and any ‘re-vestment’ of the Monarch’s legal powers in a primary capacity (de jure), without popular upheaval, or succession as by law established is unknown to it, and simply amounts to an accoachment of the Royal Power, notwithstanding concurrence of the sitting regent, howsoever arrived at. Although the term is old fashioned, it is entirely pertinent to the situation. Similarly, the Bible is not contemporary origin, but its principles cannot be escaped.

The word ‘need’ begs the question: What is so abberative about the Australian Federation in contrast to Canada’s that our State Governor’s should be assigned the chatelaine of royalty? If a deficiency did in fact exist in the concept of a royal federation, would not Canada have cause for similar ‘adjustment’? Why is there no ‘Canada Act’? Moreover, such ormolu appears to have descended also, in essential capacity upon the uncomplaining shoulders of the State Premiers. It is to be seen that Her Majesty’s constitutional powers, which, exercisable as Head of Executive Government for the State (and the Commonwealth), and are the source of legislative government in this country, and intrinsic to lawful legislation and common law accountability all government- State and Federal- are to be abrogated by ecliptic deference to proviso of the Premiers’ permission. This is couched as follows: "Whilst Her Majesty will be able to exercise any of her powers and functions normally performed by the Governor when she is personally present in the State, all State Premiers have expressly concurred in an undertaking that Her Majesty will be only formally advised to exercise those powers and functions, when in a State, where there has been mutual and prior agreement between the Queen and the Premier.

If one reverses, in the above paragraph, the words ‘be only’ to read ‘only be’, the positive meaning of the statement becomes manifest. Obviously, because it is not law, "it is expected that this will become accepted as a convention governing the circumstances in which the Queen will exercise such powers." (ibid) Also known as ‘legal fiction’.

The Governor, having thus acquired new soverainete, the legislature, particularly in Queensland, need no longer be apprehensive as to any questionableness at law, of it’s bills under the previously received strictures of burdensome manner and form requirements such as the withholding of assent, or signification of Her Majesty’s Pleasure. The previous restrictions purportedly no longer applicable by the putative gloss of the Australia Act, assent is automatic, in virtue of the Governor’s novel role en regle- Her Majesty’s position as supreme legislator rendered purportedly redundant thereby. Thus: "The Governor of a State in future will be able to assent to all laws enacted by the Parliament of a State. The Governor will no longer be required to withhold assent from certain types of Bills, nor will any Bill be reserved for the signification of Her Majesty’s pleasure. In future, Her Majesty will not be able to disallow an Act to which the Governor has assented …. (nor) shall any State Act be suspended pending the signification of Her Majesty’s pleasure."

The substance of the alterations as quoted, effectively redefine the concept of our Queensland Constitution Act, which, pursuant to definition by its preamble, is grounded upon the principle of Constitutional Monarchy. In light of the above innovation, it is impliedly re-written in its grundnorm, and speaks thereby to an imperium, detached from Her Majesty’s constitutional government. It is no surprise, therefore, to find an oblique admission, by way of general declaration, to that effect: "The Australia Acts also make necessary consequential changes to the Constitution of this State, and to similar constitutional provisions in Western Australia."

The two are non sequitur for the severance of legislative jurisdictional ties with Her Majesties Parliament of the UK and all justiciable references thereby in so far as the Privy Council’s position effectively empties any representation of Her Majesties government in Australia. The States cannot have it both ways- they cannot claim to be independent sovereign entities under the Australia Act and yet remain part Colonies for the Convenience of claiming residual Vice –Regal power by their Governors: Vis "residual executive powers of the UK government with respect to the states will be terminated" Speech of Sir Joh

The Governors cannot thereafter claim to be representatives of a colonial power for that is the entirety of their role. They were and are not representatives in their own right or in right of the State, for the State executive post Australia Act is no longer the Crown.

What mechanism is therefore left to vest the State Governors with residual vice –regal power? None but a fiction empty of any substantive law.

If the Australia Act 1986 is invalid in Queensland then the Colonial Laws of validity Act (1865) still applies.

5.11 Wherefore art the referendums?

PRECEDENT AND INHERITED LAWS

The Magistrate erred in rejecting my arguments on Magna Carta and the Bill of Rights. Earlier Courts may have refused to accept these arguments however just because a decision has been made in the past doesn’t mean it is correct. Terra Nullius was accepted for 200 years. It is now regarded as legally wrong.

As an Australian I am a subject of the Queen, and am entitled to the protection of the Crown and the charters such as Magna Carta, which guarantees the inalienable right of trial by jury.

In Essenberg v Queen in the High Court Judge McHugh J states that "Magna Carta and the Bill of Rights are not documents binding on Australian legislatures in the way that the Constitution is binding on them. Any legislature acting within the powers allotted to it by the Constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or, for that matter, the United Kingdom. Nor do they limit the powers of the legislatures of Australia or the United Kingdom."

This judgement is contradictory to many High Court and Queensland Supreme Court Judgements given previously where the Common Law, The Magna Carta and the Bill of rights have been introduced as precedents.

A precedent is defined as a judgement or decision of a court of law cited as an authority for deciding a similar set of facts; a case which serves as an authority for the legal principle embodied in its decision.

In the High Court precedent of PLENTY - v - Dillon (1991) 171 CLR 635 F.C. 91/004 the court traces the history of the law and supporting rulings (precedent) back to the Magna Carta in 1215 A.D.

The judgement of Lord Camden in Entick v Carrington (1765) was introduced into Plenty v Dillon by the High Court and therefore became a case which was used and may continue to be used by Australian Courts as a precedent.

In Stanbridge v The Premier of Queensland [1995] QSC 201 (25 August 1995) Mackenzie J said "In the recent Court of Appeal decision of Criminal Justice Commission v. Nationwide News Pty Ltd (1994) 74 A. Crim. R. 569, 584 Davies J.A. said:- "The purpose of article 9 was in my view to ensure that what was said and done in the performance of the functions of Parliament .... was free of sanction by a Court. Otherwise the business of Parliament could not be freely conducted."

In Pepper (Inspector of Taxes) v. Hart (1993) AC 593, 638 Lord Browne-Wilkinson said:-"... the plain meaning of article 9 ... was to ensure that members of Parliament were not subjected to any penalty, civil or criminal, for what they said and were able ... to discuss what they ... chose to have discussed."

How in Stanbridge v the Premier could Wayne Goss claim Parliamentary Privilege if the Bill of Rights is no longer valid?

In the matter of Brofo v Western Australia (1990) 93 ALR 207, there was much discussion of the Acts which bind the Crown.

Holding v Jennings (1979) VLR, records that the Victorian Supreme Court upheld Article 9 of the Bill of Rights of 1688

In the High Court matter of Television Company v ALP - with regard to the ban on political speeches just before an election the High Court upheld the common law right of free speech.

In the USA in EMERSON v UNITED STATES OF AMERICA Judge Cummings SR goes into some detail on the history of the Right to bear arms, the Bill of Rights and the Rights of the American colonists.

Others cases where the Magna Carta is an issue are Commonwealth of Australia V Yarmirr 1999 (FCA 1688 3 December 1999), Egan V Willis 1998 (HCA 71 –19 November 1998), Jago V District Court of NSW 1989 (168 CLR 23 F.C. 89/041)

Other cases where the Bill of Rights is relied on are Queen V Murphy 1986 Vol 5 NSW LR pg 18, Queen V Jackson 1987 Vol 8 NSW LR pg 116, AMA V Minister for Health and Community Services 1992 – vol 26 NSW LR pg 114, Franca Arena NSW MLC V NSW Standing Committee on Parliamentary Privilege and Ethics- 7/11/1997, and (article 10) Smith V Queen 1991 Vol 25 NSW LR p 1 annex C

The Bill of Rights and other Imperial Charters were introduced to Australia when it was a colony.

The Australian Constitution is affected by Article 9 of the Bill of Rights. "the Constitution S 49, provides that, until declared by the Parliament itself, the privileges of the Commonwealth Parliament and of its members and Committees are those of the House of Commons in the United Kingdom as at 1901. The relevant privilege in the United Kingdom upon which counsel acting on the instructions from the President of the Senate rely is declared by the Bill of Rights 1688 art 9. There is no contest that the Bill of Rights is presently part of the law of Australia. Commonwealth V Colonial Combing Spinning and Weaving Co Ltd (1922) 3 (CLR 42) at 463; Sankey V Whitlam 1978 (42 CLR) at 35.

The Magistrate erred in not giving adequate consideration to the case Secretary of State for the Foreign and Commonwealth Office v R . 2000 EWCA 78 on 3 November 2000. This recent case determines the manner in which the Magna Carta was received into Australian Law.

A recent case from the COURT OF APPEAL OF ENGLAND AND WALES DECISIONS: THE QUEEN v SECRETARY OF STATE FOR THE FOREIGN AND COMMONWEALTH OFFICE & anor ex parte BANCOULT, 3 November 2000 Case No: CO/3775/98 has in the transcript of its decision: the following passages:

".. it is clearly stated in the quotation from Bacon’s Abridgement and the Commentaries of Sir William Blackstone ..that the writ (of habeas corpus) runs into all parts of the King’s dominions: ‘for the King is at all times entitled to have an account why the liberty of any of his subjects is restrained wherever that restraint be inflicted’ (Blackstone, 1768, vol. 3, p. 131)".

and

"Magna Carta

30 I may turn now to the substantive grounds of challenge to the Ordinance. To the extent these run into one another. The first which I will take is the most florid: it is to the effect that s.4 of the Ordinance constitutes an affront to the rights and liberties enshrined in Cap. 29 of Magna Carta (I cite the modernised text given in Halsbury’s Statutes): "No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or in any other wise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right."

and

"25 …this document becomes and rightly becomes a sacredtext, the nearest approach to an irrepealable ‘fundamental statute’ that England has ever had. In age after age a confirmation of it will be demanded and granted as a remedy for those oppressions from which the realm is suffering, and this when some of its clauses, at least in their original meaning, have become hopelessly antiquated. For in brief it means this, that the King is and shall be below the law."

and

"26.This describes the enduring significance of the Magna Carta today. So far as it is a proclamation of the rule of law, it may indeed be said to follow the flag.".

and

"30.Reciting the argument based on Lord Mansfield’s statement, their Lordships in Liyanage continued (284B-285B):

"Therefore the legislative power of Ceylon is still limited by the inability (which it inherits from the crown) to pass laws which offend against fundamental principles"

and

"71. Each of the words "peace". "order" and "good government" in relation to a territory necessarily carries with it the implication that citizens of the territory are there to rake the benefits."

In 1915, the High Court of Australia, through the Chief Justice [Sir Samuel Griffith] confirmed the common law within the Commonwealth of Australia : -"It is clear law that in the case of British Colonies acquired by settlement, the colonies carry their laws with them so far as they are applicable to the altered conditions. In the case of the Eastern colonies of Australia this general rule was supplemented by the Act 9 Geo. IV.[1828] c. 83. The laws so brought to Australia undoubtedly included the common law relating to the rights and prerogatives of the Sovereign in His capacity as head of the Realm and the protection of His officers in enforcing them, including so much of the common law as imposed loss of life or liberty for infraction of it. When the several Australian colonies were erected this law was not abrogated, but continued in force as law of the respective colonies applicable to the Sovereign as their head. It did not, however, become disintegrated into six separate codes of law, although it became part of an identical law applicable to six separate political entities. The same principles apply to the laws of the United Kingdom of general application such as the Statute of Treasons. In so far as any part of this law was repealed in any Colony, it, no doubt, ceased to have affect in that Colony, but in all other respects it continued as before. When in 1901 the Australian Commonwealth was formed, this law continued to be the law applicable to the rights and prerogatives of the Sovereign as heads of the States as before, subject to any such local repeal. But, so far as regards the Sovereign as head of the Commonwealth, the current which had been temporally diverted into six parallel streams coalesced, and in that capacity he succeeded as head of the Commonwealth to the rights he had had as head of the Colonies. I entertain no doubt that it was an offence at common law to conspire to defraud the King as head of the Realm, that on settlement of Australia that part of the common law became part of the law of Australia, that on the establishment of the Commonwealth the same law made it an offence to conspire to defraud the Sovereign as head of the Commonwealth. ................." per GRIFFITH C.J., 20 C.L.R., 435-6. Also endorsed by ISAACS J. 445-6 and HIGGINS J. 454

The CONFIRMATION OF THE CHARTERS, 1297 says: "…that the Great Charters of Liberties and the Charter of the Forest, which were made by common assent of all the realm, in the time of King Henry our father, shall be kept in every point without breach….we have granted that they shall be observed in all points, and that our justices, sheriffs, mayors, and other officials which under us have to administer the laws of our land, shall allow the said charters in pleas before them and in judgments in all their points….And we will that if any judgment be given from henceforth, contrary to the points of the charters aforesaid, by the justices or by any other ministers that hold plea before them against the points of the charters, it shall be undone and holden for naught."

The PETITION OF RIGHT, 1627 says: in section 3. "And where also by the statute called, The Great Charter of the Liberties of England, it is declared and enacted, That no freeman may be taken or imprisoned, or be desseised of his freehold or liberties or his free customs, or to be outlawed or exiled, or in manner destroyed, but by the lawful judgment of his peers, or by the law of the land." and in section 8. "That the awards, doings and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example."

The BILL OF RIGHTS 1689 mentions "evil counsellors, judges and ministers", employed by King James the Second, who tried "to subvert and extirpate …. the laws and liberties" of the people "by assuming and exercising a power of dispensing with and suspending of laws..".

The Australian Courts Act 1828

The British Parliament, confirmed the application of the ancient rights and liberties, for the benefit of the colonists when it passed The Australian Courts Act, 1828 -ratified by King George IV:

...that all laws and statutes in force within the Realm of at the time of the passing of this Act... shall be applied in the administration of justice in the Courts of New South Wales and Van Diemen's Land respectively, so as the same can be applied within the said colonies...

The Prisoner's Council Bill

In referring to the Prisoner's Council Bill, His Honour, Mr. Justice Willis wrote: "it adds to the great constitutional right conferred by Magna Carta, 'that no freeman shall be apprehended, or imprisoned, or banished or in any manner disparaged, except by the legal judgment of his peers (and) by the law of the land. The Prisoners Counsel Bill is, I think, as much the birthright of an Englishman as the Magna Carta, the Habeas Corpus Act, the Rill o Rights or the Act of Settlement. "

As time passed laws were enacted for the then colony Australia, laws that decidedly carried forward the fundamental principles of all the great English laws by simply stating: Provided always, that no such law shall be repugnant to the Law of England

As we were British subjects at that time:- By Royal patent from Queen Elizabeth I in 1578, Sir Humphrey Gilbert was to take possession of ‘...lands .... all who settled there should have and enjoy all the privileges of free denizens and natives of England’ [viz. equals British subject, today];*pg 9

By Royal patent from King James I in 1606, Walter Raleigh received thus ‘ all British subjects who shall go and inhabit within the said colony and plantation, and their children and posterity, which shall happen to be born within the limits thereof, shall have and enjoy all the liberties, franchises, and immunities thereof, to all intents and purposes, as if they had been abiding and born within their own realms of England or any other of our other dominions.’ * p 11. Annotated ‘notes’. Further [see pp 90-1, The LEGISLATIVE POWERS of the Commonwealth & the States of Australia: by Sir John Quick 1919]

The Bill of Rights, the Magna Carta and many other Imperial acts were further confirmed by the Imperial Acts Application Act 1984 as being valid in Queensland.

The Imperial Acts Application Act 1984 is a Constitutional enactment and as such can only be altered by a referendum under the Queensland Constitution Act 1867. Courts cannot find as fact that a Statute is not a law. The active Magna Carta section is Chapter 29 of the Act of 1297. The Imperial Acts application Act 1984 declares it to be so. It is res judicata.

Denver Beanland, when he was Attorney General confirmed that the Bill of Rights was still applicable in Queensland. The current Attorney General Matt Foley when asked by Dorothy Pratt MLA in a Question on Notice seems to have abdicated his responsibilities to the High Court.

From the above Royal patents, the reference to people being British subjects in any Statute means that it applies ‘throughout the Empire’.

As a Colony we inherited the Common law including the Bill of Rights and Magna Carta. It was further confirmed by The Imperial Acts Application Act 1984 that they are still valid enactments. Since many parts of Magna Carta and the Bill of Rights and the Common laws have been introduced by various Courts as precedents and can thus be used as an authority for the legal principle embodied in its decision.

In light of this the decision of Hughes J in Essenberg V Queen can only be seen as untenable.

CLAIM OF RIGHT for a Trial by Jury

I have an honest claim of right (10.5) under the Criminal Code Act 1899 to rely upon the Criminal Code, section 92, to say that I do not have to submit to the Jurisdiction of a magistrate in this matter, but must be tried by Jury. I submit my claim of right is reasonable, based as it is upon the Imperial Application Act 1984, (5.2) Schedule 1 (1297) 25 Edward 1 ch 29, and (1688) 11 William and Mary Bill of Rights Sess 2 ch 2 Bill of Rights (13.1).

In Walden V Hensler (1987) 163 COMMONWEALTH LAW REPORTS 561 the High Court appears to uphold Section 22 for the benefit of Mr Walden. In 1999 in Yanner V Eaton (1999) HCC 53 (7^th Oct 1999) the High Court declared the law again, and while not mentioning section 22, Criminal Code have upheld a Magistrate’s right to recognise an honest claim of right. (The High Court of Australia by majority, in Yanner V Eaton, upheld the magistrate’s recognition, at Mt Isa, that the Commonwealth could legislate to recognize individual sovereignty in an Aboriginal person.)

In the case of Yanner, the claim of right arises out of the Native Title Act. Mine arises under the Constitution, (9.1) and the International Covenant on Civil and Political Rights, and the Imperial Acts Application Act 1984, schedule 1 (1297) 25 Edward ch 29 (5.2). My claim of right is to be not tried by a public servant, appointed by the Governor, but by a Jury of my peers as I am supposed to be guaranteed, by the Imperial Acts Application Act 1984, schedule 1 (1297) 25 Edward ch 29 (5.2).

The High Court of Australia, by upholding the right of the delegates of the people of Australia to grant sovereign immunity, to one class of people, must now extend their decision. You must now extend that same privilege to each and every citizen of this democracy. The Anti Discrimination Act 1991(Q) and International Covenant on Civil and Political Rights binds the court, individually and collectively to apply equality to all. Section 13 Crimes Act 1914, is an equally certain statement of sovereignty, as the Statute which was relied upon by Mr Yanner.

The Anti Discrimination Act 1991 (Q) confirms, in its long title, that the International Covenant on Civil and Political Rights is domestic law

In Paragraph 63, Justice Gummow chronicles where Mr Yanner made his honest claim of right to the Magistrate. The Magistrate accepted the honest claim of right as a defence and discharged Mr Yanner. This is chronicled in paragraph 64. In my case you should obey section 92 Criminal Code and not make an order prejudicial to me. Until the question of fact of whether the Weapons Act 1990 discriminates (15.1) against me is decided by a jury unless I consent.

There can be no doubt that an equity court was required to sit with a judge and jury in Queensland at the formation of the Commonwealth. There can be no doubt that Section 118 Constitution gives that law full faith and credit throughout the Commonwealth. There can be no doubt that if there is a conflict between the law and equity, equity must prevail.

By the Judicature Acts 1876(Q) the functions in equity were vested in a court with a jury, not in a judge. The collective conscience of 12 jury persons was seen as equal to the collective conscience of the Church and Archbishop of Canterbury

The evidence that juries were the norm in trials at common law, and compulsory, in NSW in 1900, is contained in the Volume XXI NSWR 1 [1900.]

A magistrate is unable to sit without a jury without offending the Magna Carta unless the accused grants him jurisdiction.

HALSBURY’S LAWS OF AUSTRALIA says under (130-13460): "Consent to summary jurisdiction The consent to be tried summarily must be clear and uniquivocal and a failure to carry out the procedures for obtaining the consent will deprive the court of jurisdiction to determine the matters summarily."

This provision is to prevent corruption and the usurpation of the role of the citizen in self-government, and prevent the oppression of minorities by majorities.

When a judge sits alone, without consent, he is an administrative officer, not a judicial officer. He is a justice, not a judge, until he either obtains consent to act as a judge by all parties, or empanels a jury, to give the state power to make orders prejudicial to the sovereign members of that state. Judges may, however give administrative directions to enable the court to be created and brought into existence. It is not a court, until it either has consent to jurisdiction, or empanels a jury of 12 sovereign electors to perform the judicial function of finding fact for the court

MAY

The Magistrate erred at law in neglecting to impute a natural meaning to Parliamentary intent where a Statute is silent – "The Weapons Act is silent on this topic, other than at section 161." See Pepper V Hart and case Secretary of State for the Foreign and Commonwealth Office v R . 2000 EWCA 78 on 3 November 2000.

The Authorities show that Natural meaning is to be benign and beneficently interpreted.

The Magistrate erred when referring to Section 19 of the Justices Act 1886. The magistrate said that: These proceedings in the Magistrates Court ARE to be summary proceedings section 19 of the Justices Act of 1886, which is the Queensland State legislation provides that: "If in detailing an offence if not stated to be indictable then proceedings for an offence are to be as for a simple offence."

The above is incorrect as the most recent version also uses the word "May" not "are"

The Justices Act of 1886- Reprint No. 6B (Reprinted as in force on 1 December 2000) says: General provision 19. Whenever by any Act past or future, or by this Act, any person is made liable to a penalty or punishment, or to pay a sum of money, for any offence, act, or omission, and such offence, act, or omission is not by the Act declared to be an indictable offence, and no other provision is made for the trial of such person, the matter may be heard and determined by a Magistrates Court constituted, subject to this Act, by 2 or more justices in a summary manner under the provisions of this Act. (includes amendments up to Act No. 63 of 2000)

The meaning of the word "may" in the Justices Act 1886 surely allows that for justice for the defendant to be done the issue need not be tried in a Summary fashion

Given that both the Magna Carta and the Bill of Rights (1688) both say that I have a RIGHT to a trial by Jury then it would be more correct to allow a trial by jury than to deny one.

Summary offences are only offences that "May" be prosecuted without a jury. The operative word being "may". If one is asked for the defendant has an absolute right to get the jury for a trial and the findings of the jury bind the sovereign. That ensures fairness and impartiality.

The Weapons Act, section 137, part 1, has the word "may" in it. "May" means that it is not compulsory for the offence I allegedly committed to be tried in a summary manner. It means that if I ask for a jury trial, that I be entitled to be tried on indictment.

WARD v. WILLIAMS (1955) 92 CLR 496 at 8.
In considering the correctness of this interpretation it is necessary to bear in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning. "

"The authorities clearly indicate that it lies on those who assert that the word 'may' has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning" - per Cussen J.: Re Gleeson (1907) VLR 368, at p 373.

"The meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power" - per Lord Selborne : Julius v. Bishop of Oxford (1880) LR 5 AC 214, at p 235.

One situation in which the conclusion is justified that a duty to exercise the power or authority falls upon the officer on whom it is conferred, is described by Lord Cairns in his speech in the same case. His Lordship spoke of certain cases and said of them: "They appear to decide Nothing more than this: that where a power is deposited with a public officer for the purposes of being used for the benefit of persons who are specifically pointed out and with regard to whom a definition supplied by the legislature of the conditions upon which they are entitled to call for his exercise, that power ought to be exercised and the Court will require it to be exercised." Per Lord Selborne: Julius v. Bishop of Oxford (1880) LR 5 AC 214, at p 235.

If the legislature intended to have a Judge refuse a jury trial it would have clearly indicated its intention in the Weapons Act. A Judge can grant a jury trial and should not refuse a jury trial to grant a benefit to one litigant over another, particularly when the other litigant is a fellow public officer. In such a case "may" becomes "must", or the system is seen to be a servant of the Executive Government and not acting impartially. If the legislature intended that I not be entitled to a jury trial, it would have said, "must", not "may".

The respondent's argument in the Kingaroy District Court (Essenberg v Carne) includes the word "may". Section 161 of the Weapon's Act provides that, "A proceeding for an offence under this Act other than section 65 MAY be prosecuted in a summary way." The second argument of the Prosecution was section 19 of the Justices Act, "Where an offence under any Act is not declared to be an indictable offence, the matter MAY be heard and determined by a Magistrates Court in a summary matter."

Where does it say that trial by Jury is precluded in my case?

"May" is a word of decided judicial import. If the discretion is not consented to, it is the duty of the Court to treat all offences with a possible penalty of over 3 months as indictable offences to avoid the stigma of corruption overhanging the Court. The Criminal Code Section 204 obliges the magistrate to set the matter down on the request of any defendant for a jury trial, or offend section 200 Criminal Code. Refusal of Public officer to perform duty .

In THE KING v. MITCHELL and another ( justices Of CLITHEROE ). Ex parte LIVESEY.

A person convicted of an offence under s. 7 of the Conspiracy and Protection of Property Act, 1875, by a Court of summary jurisdiction, or on indictment as thereafter in the Act mentioned, is liable to a penalty not exceeding 20L. or to imprisonment for a term not exceeding three months.

By s. 9 of the Act, where a person is accused before a Court of summary jurisdiction of an offence made punishable by the Act for which a penalty amounting to 20L., or imprisonment, is imposed, the accused may, on appearing before the Court of summary juris diction, declare that he objects to being tried for such offence by a Court of summary jurisdiction, and thereupon the Court of summary jurisdiction may deal with the case in all respects as if the accused were charged with an indictable offence and not an offence punishable on summary conviction, and the offence may be prosecuted on indictment accordingly

Held by Lord Coleridge and Bankes JJ. (Ridley J. dissenting), that the effect of s. 9 is that a person accused of an offence under s. 7 before a Court of summary jurisdiction, who, on appearing before that Court, declares that he objects to being tried by that Court, has a right to have the case dealt with as if he were charged with an indictable offence and not an offence punishable on summary conviction, and to have the offence prosecuted on indictment accordingly.

Held, therefore, that in the phrases" thereupon the Court of summary jurisdiction may deal with the case in all respects as if the accused were charged with an indictable offence" and "the offence may be prosecuted on indictment" the word "may " is an enabling word empowering the Court of summary jurisdiction to give effect to the right of the accused, which accordingly that Court is bound to do.

Held, consequently, that, upon a declaration of objection being duly made under 8. 9, the Court of summary jurisdiction has no jurisdiction to try the case.

Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214, followed

PARLIAMENTARY SUPREMACY

The Australian constitutional system assumes that Parliament will not interfere unnecessarily with common law rights and will recognise and protect other rights, as the need arises.

Some judges have also said that Parliament could not instruct the courts to act in a way not consistent with the judicial function

Between elections, Parliaments think they have an unfettered power to do whatever the controlling party decides should be done, and that they can ride rough shod over the people who delegate law making powers to them. Parliament believe they are supreme,

The people of Queensland by referendum, decided in 1899, to continue the common law tradition we inherited from English colonists.

In Calder V Bull, Chase, J: "I cannot subscribe to the omnipotence of a state legislature…. An act of the legislature, (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority." 1798 3 Dallas 386

The perception, apparently supported by our courts, that Parliament has absolute sovereignty from the English Bill of Rights Act 1689, is fundamentally flawed. They omit "charters" which could never be impeached or invalidated and then brazenly claim their rights of absolute Parliamentary sovereignty from that same Act. For without the Bill of Rights where is Parliamentary Privilege let alone Supremacy?

Many Sections of the Constitution entrench the power in the Monarch but Section 9, Sub Section 61 States "The executive power of the Commonwealth is vested in the Queen". No parliament anywhere can create a monarchy. It is the Monarch who creates the Parliament. So who is supreme?

The Bill of Rights (1688) was a peace treaty that replaced the abdicated Monarch, James II with William and Mary. It also confirmed the Common laws and Magna Carta and corrected abuses that had been done by James II.

Throughout the Bill of Rights, and the acts making up the 2 sessions of Parliament, including the oath of supremacy, the people acknowledge the monarch as the Head of state, having final say.

Parliament was enacted into statute in a position of checks and balances to the Royal prerogative but at no time was the royal prerogative stripped from the monarch

If Parliament were supreme why is there a need to have the sovereign (Via the Governor) give royal assent to legislation before it can become law? Because that is one of the checks and balances to protect people from tyranny.

The Federal Parliament and the state Parliaments are not sovereign bodies. They are legislatures with limited powers. Any law they attempt to pass in excess of those powers is no law at all. It is void and entitled to no obedience.

Any laws Parliament makes must be in accordance with the recognised principles of representative democracy, constitutional law and the rule of law

" For the Parliament to develop or improve on a fundamental right is one thing. But to enact legislation which expressly removes an already existing fundamental right, and to have that enactment blindly upheld by a Court, is quite another"

" If there is one thread which runs through the whole turbulent history of British constitutional development, it is the belief that we are the servants of fundamental constitutional rules which were there before us and will be there after we are gone. From the days when the King’s subjects demanded respect for the laws of King Edward the Confessor, through the centuries in which legendary superiority attached to such acts as Magna Carta, the Petition of Right, the Bill of Rights, the idea of our ancient rights and liberties has determined the form of our endlessly progressive/conservative constitutional change." (Allott, The Courts and Parliament Who Whom? (1979) CLJ. at 114)

If Parliament has the power to make a legally binding command, no matter what the subject matter of that command, then it is entirely possible that a direct conflict will arise between the duty to obey the law and the moral duty not to obey wicked laws. This conundrum was solved in earlier times by the social contract. If the sovereign failed to protect the people in the enjoyment of their basic liberties, then it breached its’ contract with its’ subjects, and the oppressive "law" could not be binding. Reliance was placed on unchanging common law, or on the Magna Carta, a true convenant between the sovereign and the subject.

The Australian Parliament claims its rights and privileges from the Bill of Rights 1689 (1 Will & Mary sess 2 c 2 1689) which demonstrated that the victors in the Revolution had sought to protect, not to change, the fundamentals of the constitution. The framers of that document were simply declaring common law that already existed and would continue to exist.

The Bill of Rights was only preserving the supremacy of Parliament over any future Monarch who might feel disposed to assert the opposite. Parliament is sovereign in that sense, not in the sense that it is incapable of doing wrong or that no one may question the validity of an Act of Parliament.

Surely the framers of the Bill of Rights did not intend to enshrine parliamentary superiority in clause 9 and allow subsequent parliaments to eliminate the freedoms given to the people in clause 7 of the Bill of Rights and clause 29 of the Magna Carta (1297). After all the freedoms of Magna Carta preceded the existence of Parliament by several hundred years.

Freedom to discuss without legal sanction is hardly Parliamentary Supremacy for that is all that is allowed by the Bill of Rights (1688) - A PARLIAMENT has the power, conferred by its Constitution, "to make laws for the peace, order and good government" but "a law in excess of the authority conferred by the Constitution is no law; it is wholly void and inoperative; it confers no rights: it imposes no duties; it affords no protection…… To be valid and binding they must be within the domain of jurisdiction mapped out and delimited in express terms, or by necessary implication, in the Constitution itself. What is not granted to the parliament of the Commonwealth is denied to it." (The Annotated Constitution of the Commonwealth of Australia by Quick & Garran, p 346).

According to Dicey’s theory of Sovereignty Parliament had absolute power no matter that a statute trampled on ancient constitutional principles or flew in the face of deep rooted customs or the morals of the people.

Dicey could not cite a single case in support of his absolutist view

The position of Parliament is not one of legislative omnipotence Bonham’s case in 1609 and R v Love in 1651 described Parliament’s competance as being subject to limits. Parliament cannot make a law rendering lawful murder, theft or perjury. Because the very concepts presuppose illegality so that a statue purporting to make such acts lawful would be a contradiction and a void law in itself.

Coke The common law will control acts of Parliament and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.

Ouster clauses

Anisminic Ltd v Foreign compenation Commission. Here the statutory provision at issue declared that a determination of the commission "shall not be called into question in any court of law" The courts have consistently ruled against clauses that Parliament has attempted to use to oust the jurisdiction of the courts.

ENTRENCHMENT

Entrenched Provisions are laws enacted that may not be repealed or amended, or the affect of which may not be altered, by Parliament unless it follows a special, additional procedure, such as approval by the majority of electors at referendum or approval by a two thirds majority in the Parliament. The entrenchment of a law reflects Parliaments intention to protect a law that it considers to be of special significance, by inhibiting a successor Parliament’s ability to amend the law through the normal law- making procedure.

The entrenchment of a law usually occurs by a substantive provision (the entrenched provision) being subjected to another provision (the entrenching provision) which states that the substantive provision may not be repealed or affected without observance of the special additional procedure.

To fully entrench a law, the entrenching provision must also subject itself to the same special procedural requirement before it can be amended (that is the entrenching procedure entrenches itself.) When this occurs, the substantive provision is said to be "doubly entrenched" Legal, Constitutional and Administrative Review Committee report no 13, April 99 on the Consolidation of the Queensland Constitution- sec 2.3

Both the Magna Carta and the Bill of Rights are doubly entrenched and may not be altered by any means

COMMON LAW

The common law, which applies in Australia, is the common law of England as it existed in 1836, as it was translated into the colonies and as it has developed within this colony and state in the last 148 years.

All Colonists had these rights from Britain and any subsequent Colonial legislation was only confirming what already existed.

In the Boyer Lecture one Chief Justice Murray Gleeson on 19/11/00 said: "The common law of Australia was based upon the common law of England. We inherited it at the time of European settlement. The word ‘common’ was a reference to the rules that applied to all citizens, the laws all people had in common, as distinct from special rules and customs that applied to particular classes, such as members of the clergy, or in particular places."

Dr. David Mitchell B.A. L.L.B. Ph.D L.L.M.) Said: "We have not been taught at school what the Common Law is, or where it is derived from. I need to remind you that when this country was settled, they brought with them a System of Law; a System of Rights; and a System of Constitution. That system was based on the Ten Commandments.

Before it was joined into the United Kingdom the constitutional structure of England was that there was a King, who was advised by a team of advisers who had come to be called Parliament; and there was a Court System. King Alfred decreed and declared that the responsibility of the Crown was to apply the Ten Commandments to every question that came before them; they were to interpret the Ten Commandments in the light of the whole of Scripture. So the people were to find their rights - that is to say, how the court would handle any issue - in the Christian Scriptures.

But what if a judge, who of course, in deciding his case would be declaring the word of God, and would be declaring God’s way for handling that particular issue -- what if the judge was wrong, either because he was bribed, or drunk or simply he had misunderstood Scriptures? Here was a basic function of the King’s advisers.

The basic function of the Parliament was to ensure the wrong court decisions did not become precedents; that is to say, that wrong court decisions were not binding for subsequent cases when they became before the courts. So the Parliament was to tell the King what was the proper interpretation of Scripture. Thus courts were subject to God’s Word: Parliament was subject to God’s Word: the King was subject to God’s Word. There were three parts of the Constitution: King; Courts; and Parliament (or Legislature); reflecting the concept of the holy trinity. So the Constitution of England came into existence those many years ago, and was the Constitution when Australia was settled.

Over the years the constitutional basis was often neglected, rejected, or forgotten. The Hon. John Howard has today, [July 1988] correctly drawn attention to Magna Carta and our other basic constitutional documents. John Howard said " Our basic rights have been defined over the centuries through acts of Parliaments, decisions of courts, the ancient Magna Carta and the Bill of Rights of the British Parliament and so forth. They are our basic rights ..."

Our rights under the old Bills and Statutes are still with us and still live. We see from the above that: neither the courts of law, nor the parliament, nor the government as a whole, were originally there to ‘think up’ laws. They were there to uphold THE LAW." (Based from a transcript of an address given 1/ 7/88 @ Chapter House, Sydney NSW.)

The common law was declared by the Criminal Code Act 1899 in Queensland, and Section 92 of the Criminal Code, gives effect to the Magna Carta C 29. It says, Abuse of Office, Any person being employed in the public service does or directs to be done, in abuse of the authority of the person's office, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour, and is liable to imprisonment for 2 years.

The case of R v Lord Chancellor ex parte Witham implies that Acts of Parliament cannot repeal common law and our rights have fallen into abeyance through lack of a suitable challenge.

MAGNA CARTA

The Magna Carta was a peace treaty signed in 1215 to end a civil war in Britain. It confirmed the Common law rights of the people and corrected abuses of law that had been done by King John. It concerns the limits and responsibilities of Government and the legal rights of free citizens.

Although the 1215 Magna Carta treaty was reneged on by King John it was reaffirmed by his son on Johns death and has been re-affirmed in various ways some 38 times since it was first enacted.

Magna Carta was never a statute it was a peace treaty and not subject to legislative amendment. The Queen confirmed that it was a peace treaty in 1997.

Ch 29 Magna Carta 1225 (2) "No man shall be disseised, that is, put out of seison, or disposed of his freehold (that is) lands, or livelihood, or of his liberties, or free-customs, that is, of such franchise, and freedoms, and free-customs, as belong to him by his free birthright, unless it be by the Lawful Judgement, that is, verdict of his equals, (that is, of men of his own condition) or by the law of the land, (that is, to speak at once for all, that is, the universal common law), by the due courts, and process of law".

Magna Carta is predicated upon the auto-cephalous authority of the people at natural law, and if it did not exist in script, would, notwithstanding, continue to have a presence by virtue of the generic existence of the inhabitants of the British Isles, and their descendents, and is of precatory form, spanning generations, by virtue of self-genesis, as indeed, is all customary law.

The Right to a Jury trial (and also private ownership of arms for defence) was entrenched in the Bill of Rights as a re-inforcement of the "Independence of the Jury", through the use of the Universal common law based upon the Holy Scriptures, bought about by Williams Penn’s case in 1670.

There is the choice, therefore, between the judgment of one's peers OR by the law of the land. And the law of the land does not just mean enacted statute law. It involves the high principles of the rule of law, due process of law, constitutional law, the rules of natural justice and the principle of ultra vires. (Beyond the power).

I refer to the UK Secretary of State for the Foreign and Commonwealth Office, R v. [2000] WCA 78 (3rd November, 2000) Case No: CO/3775/98

This is a recent case that expands on the validity of the Magna Carta in modern law On Magna Carta- 33 It is clear that the Magna Carta is not applied to any colony by express words; it may only be so, therefore, by "necessary intendment". There was much argument at the Bar as to the extent to which the Magna Carta "followed the flag". That expression appeared in a judgment in the Canadian Supreme Court in Calder v AG of British Columbia (1973) 34 DLR (3rd) 145, where at 203 it was said that Magna Carta "had always been considered to be law throughout the Empire. It was a law which followed the flag as England assumed jurisdiction over newly discovered or acquired lands or territories." This statement, much pressed by Sir Sydney, was approved by Lord Denning MR in R v FCO ex p. Indian Association of Alberta [1982] QB 892, 912.

The citizens of a colony are, distinctly, the Queen’s subjects; and as such enjoy the legal heritage of the Magna Carta.

. I will only cite Pollock and Maitland, The History of English Law (2nd edn 1923), vol. I. p.173:

"... this document becomes and rightly becomes a sacred text, the nearest approach to an irrepealable ‘fundamental statute’ that England has ever had. In age after age a confirmation of it will be demanded and granted as a remedy for those oppressions from which the realm is suffering, and this when some of its clauses, at least in their original meaning, have become hopelessly antiquated. For in brief it means this, that the king is and shall be below the law."

26. This describes the enduring significance of the Magna Carta today. So far as it is a proclamation of the rule of law, it may indeed be said to follow the flag –

, their Lordships in Liyanage continued (284B-285B):

"Therefore the legislative power ............. is still limited by the inability (which it inherits from the Crown) to pass laws which offend against fundamental principles.

In pari delicto potior est conditio defentis- no action can be maintained if illegality is relied upon to maintain the case

Bill of Rights

The 2 Sessions of Parliament assented to under the one date 13^th February 1688, are inseparable and indissoluble, re-establishing the throne of Great Britain, allowed William and Mary to ascend to the Throne of Great Britain. It is under this, Queen Elizabeth II obtains her authority and head of power to sit upon the throne of the UK of Great Britain. It is established forever more as a blood covenant with all the people of the realm.

The Monarch and the Parliament of the United Kingdom and Great Britain are under the subjection of all the ancient religion, law, rights and liberties of the realm based upon the Holy Scriptures.

S1. 1 W & M, 1688, Session 1 settled the Oaths and Declarations to be taken, not only by William and Mary but also, by each and every successor of the Throne of the United Kingdom of Great Britain.

Session 2 declared and enacted the Rights and Liberties of ALL the Subjects and settled the succession of the Throne, before William and Mary were declared King and Queen of the Realm and could ascend the Throne.

The Throne of England was ONLY offered to William and Mary on the strict condition that they upheld the Ancient Laws and Customs of the Realm, these being declared in S.2 of the Parliament 1688.

The Chapters of both Sessions of Parliament (1688) cannot be separated, repealed, annulled or amended, because ALL are conditional to the offering and acceptance of the Throne of the United Kingdom.

Para iv, Cap VI, S. 1, 1 W & M, (1688) enacted the said Coronation Oath SHALL be in like manner administered to EVERY King or Queen who shall succeed to the Imperial Throne of the Realm.

Not only does the Monarch swear an oath, but all members of Parliament, all persons employed by the Monarch including Judges, court officials, agents, and advisors etc, were and are forevermore required to swear the said oaths also, to uphold and be under the subjection of all the Ancient Religion, Law, Rights and Liberties of the Realm based upon the Holy Scriptures.

Throughout the Bill of Rights and the statutes making up the two sessions of Parliament (1688), the people acknowledge the Monarch as the Protector of the people, having the final say, due to a compact between God and ALL the people, 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.

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".

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.

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".

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".

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.

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.

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.

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 6^th 1999.

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).

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.

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.

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.

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

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.

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.

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".

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.

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

The following points are drawn from advice from the British Bar Association

The ROYAL PREROGATIVE is by British Statute and is a matter between the British Parliament and the Monarch

Any question pertaining to the prerogative can only be heard in British Courts.

Australian Courts have no legal standing in relation to matters pertaining to the Royal Prerogative.

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".

I contend that the Queen was misled by her ministers in giving the royal prerogative to Acts of Parliament that have infringed our liberties.

"No prerogative may be recognised that is contrary to Magna Carta or any other statute, or that interferes with the liberties of the subject".

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.

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.

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.

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".

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."

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".

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.

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

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)

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.

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.

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.

"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

"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.

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

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.

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.

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."

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.

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:

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.

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".

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.

Moreover, can there ever be an adequate justification for the state depriving any person of their constitutional rights?

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."

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."

".....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.

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.

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"

So the Confirmatio Cartarum further entrenches the rights granted in the Magna Carta.

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

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."

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"

The role of the jury in the protection of liberty has been emphasised by numerous authorities

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

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"

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)"-

This is a common theme in the High Court.

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.

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.)

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.

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.

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.

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. 3^Rd series xii 1006 (May 17 1832)

During the Grand Remonstrance of 1641 "the commons denounced the court (suzerain) conspiracy (inter alia) to subvert the fundamental laws and principles of Government…"

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.

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.

"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.".

"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)

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...."

"Vindicating and Asserting?"

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.

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."

The intent throughout the debate was clear; - Reserved fundamental rights.

The British Parliament has confirmed the continued existence of the Bill of Rights (1688):

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

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.

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."

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.

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.

HUMAN RIGHTS

The Magistrate erred in referring to Carnes v. Essenberg (1999) QCA 339

This decision is of limited legal validity as the defendant (myself) was un-represented because legal aid was denied.

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

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.

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.

That my arguments have been ignored in all previous courts indicates that I am unlikely to get a fair trial without legal representation.

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

The International Covenant on Civil and Political Rights has been enacted into law as the Human Rights and Equal Opportunity Commission Act of 1986.

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."

".....The rule of law." Not statutory law, Parliamentary sovereignty or otherwise but, ".... The rule of law". Ie. The Courts.

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.)

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."

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

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:

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.

SCHEDULE 2, Section 3 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTSPART II Article 14

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;

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.

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.

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.

By Article 50 of the Human Rights and Equal Opportunity Commission Act of 1986. Schedule 2, Queensland is bound by the Covenant.

The Violations that have occurred are,

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.

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.

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.

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.

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

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. I may not be on a serious charge however how can justice be done in an issue where the law may be invalid if I do not have legal representation.

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.

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

COLONIAL LAWS OF VALIDITY ACT (1865)

The Judges in the Criminal court of Appeal erred by mistakenly using section 3 of the Colonial Laws of Validity Act 1865 and not seeing that it was only a modifier to Section 2 of that Act.

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]*

In so far as the Colonial laws of Validity Act (1865), in the context that the learned Judge (Chesterman J) 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:

"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"

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.

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"

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.

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.

The 1931 Westminster Act only reaffirmed that the UK parliament would not legislate for Australia.

Weapons Act ultra vires

I contend that the Weapons act 1990 of Queensland, under which I was charged under section 50 cannot stand. I raise various constitutional points in relation to the invalidity attracting Federal Judicial power by the defence raised.

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)

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.

My defence in previous trials has been consistently founded on the question of Constitutionality.

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.

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.

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.

A magistrate is not a judge and as such cannot exercise a Federal Judicial function at all.

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).

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"

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)"

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).

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).-

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"

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.

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.

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.

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.

That by reason of all the above it is not validly enacted, nor is it, in se, valid law.

There has been a case in the High Court of Australia dealing with the invalidity of laws. The following extracts illustrate this:

KABLE v. THE DIRECTOR OF PUBLIC PROSECUTION FOR N.S.W. FC 96/027 HIGH COURT OF AUSTRALIA 12:9:1996

JUDGE 1

BRENNAN CJ: "the argument challenges the very existence of the Act (the Community Protection Act 1994 (NSW))…..whether the Act is beyond the power of the Parliament of New South Wales …..there are fundamental rights which must prevail against the will of the Parliament…..Does Ch III of the Commonwealth Constitution preclude the vesting of jurisdiction under the Act in the Supreme Court of New South Wales?….17. I would dismiss the appeal."

JUDGE 2

DAWSON J: ‘The appellant confined his argument before us to an attack on the validity of the Act….He contended first that the Act is invalid because it infringes common law rights which are so fundamental that they cannot be overturned by any legislation. Next, he said that the Act is beyond the power of the New South Wales Parliament to make laws for the peace, welfare and good government of New South Wales pursuant to s.5 of the Constitution Act 1902 (NSW) because it is not a law within the meaning of that section…. The view expressed by Coke CJ in Bonham’s Case (48) He said "And it appears in our books, that in many cases, the common law will ..control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnat, or impossible to be performed, the common law will control it, and adjudge such Act to be void."..It is of the essence that a Court, once it has ascertained the true scope and effect of an Act of Parliament, should give unquestioned effect to it accordingly…. For these reasons, the Act is in my opinion valid…I would dismiss the appeal."

JUDGE 3

TOOHEY J: "The function offends that aspect because it requires the Supreme Court to participate in the making of a preventative detention order where no breach of the criminal law is alleged and where there has been no determination of guilt. On that ground I would hold the Act invalid….the Act is a bill of pains and penalties, that is, that it is "a legislative act which inflicts punishment without a judicial trial" (155)…..Accordingly the appeal should be allowed and the application by the respondent against the appellant dismissed."

JUDGE 4

GAUDRON J: "..the Act makes a mockery of that (judicial) process and, inevitably, weakens public confidence in it. And because the judicial process is a defining feature of the judicial power of the Commonwealth (179), the Act weakens confidence in the institutions which comprise the judicial system brought into existence by Ch III of the Constitution…..29. Section 5(1) of the Act is invalid. So too are the remaining provisions of the Act which serve no purpose other than to carry s 5(1) into effect…30. The appeal should be allowed with costs."

JUDGE 5

McHUGH J: "Courts exercising federal jurisdiction must be perceived to be free from legislative or executive interference…The Act has the tendency to undermine public confidence in the impartiality of the Supreme Court of New South Wales…27. Section 7 of the Act goes even further than s 5 in interfering with the libert of the appellant….33 The act expressly removes the ordinary protections inherent in the judicial process….34. It invests the Supreme Court with a jurisdiction that is purely executive in nature. Indeed, the jurisdiction conferred on the Court is hardly distinguishable from those powers and functions, concerning the liberty of the subject, that the traditions of the common law countries have placed in Ministers of the Crown so that they can be answerable to Parliament for their decisions…..40. Any person who reached that conclusion could justifiably draw the inference that the Supreme Court was an instrument of executive government policy…That being so, public confidence in the impartial administration of the judicial functions of the Supreme Court must inevitably be impaired. The Act therefore infringed Ch III of the Constitution and was and is invalid. The appeal should be allowed."

JUDGE 6

GUMMOW J: "16. My conclusion is that, in the broad, these submissions should be accepted…..30. whilst imprisonment pursuant to Supreme Court order is punitive in nature, it is not consequent upon any adjudgment by the Court of criminal guilt….Moreover, not only is such an authority non-judicial in nature, it is repugnant to the judicial process in a fundamental degree…61. The Constitution is premised upon the proposition (in covering cl 5) that, of every State . there will be "courts" and "judges". Indeed, any other conclusion, to adopt the phrase of Dixon CJ in another context (271), "rather taxes legal credulity"…76. My conclusion is that the whole of the provisions of Pt 2 of the Act (ss 5-26) are invalid…79. The result is that the appeal should be allowed with costs.".

The most notorious of the provisions of the Weapons Act 1996 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

" 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

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.

And from elsewhere " for it is common knowledge that the intention of a man will not be probed…" Bryan CJ YB 17 Edward IV

"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.

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?"

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

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

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"

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"

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.

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)

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.

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.

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"

The provisions of the Act so far cited do not maintain judicial independence, but on the contrary seek to appropriate it.

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.

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)

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.

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.

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.

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)

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.

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.

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).

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.

It makes a mockery of due process and of Australian democracy.

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.

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

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.

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.

LETTERS PATENT

Since the passing of the Australia Act 1986 the has been a change to the authorizing of both Governors and the Governor General.

It is said that the Prime Minister Bob Hawke signed the Letters patent of the Governor-General. Premier Rob Borbidge signed the signed the Commission of appointment of Governor Arnison.

Letters patent may be issued under the name of the Monarch but must be co-signed by the nominated executive officer and carry the Great Seal of the United Kingdom. They can only be affected within the UK or the designated territories of the UK.

The Queen of Australia is not a body recognised in UK law and as such has no authority to use the Sign Manual

No Australian citizen has been or can be nominated and appointed by the British Parliament to become an executive officer appointed by the Parliament of the UK and hold a warrent to have access to the Great Seal of the UK

An executive document issued under "our Sign Manual" gains validity only when it is co-signed by a nominated executive officer appointed by the Parliament of the UK and sealed with the Great Seal of the UK.

British Statutes are such that Executive Documents have no valid application outside sovereign British Territory.

The State of Queensland has not been a British Territory from at least the date specified in the Imperial Act- the British National Citizenship Act

No Premier of Queensland is or has ever been an executive officer under British Statute with Authority to co-sign Executive documents.

Any Letters Patent signed by the Queensland Premier are invalid. This invalidity makes all Bills passed by an invalid Governor also invalid.

So where does Governor Arnison get his authority?

In whose name is he assenting?

Does he have legal documentary proof that he has authority ?

Ordinances and Peace, order and Good government.

An Ordinance is not law, not legally binding on the population for lack of democratic impetus. True law as shown in this submission elsewhere is an undying force for confirmation of eternal truths

An ordinance in contrast declares for no-one but the controlling power and can be changed at the instigation of same. Furthermore, in zealous pursuit of conformity, ordinances, lacking a democratic base, sprout as anticipatory measures interfering in the natural and inherent responsibilities of the populace.

"Every ordinance interferes with the common law"

So says Street, in his well known volume "Ultra Vires", and in reference to legislation in particular. Thus while legislation which interferes with inherent law may have the colour of validity, it has no more substance than that of an edict for having no reference to true democratic consensus.

In the case previously cited Lord Justice Laws and Mr Justice Gibbs reviewed the subject of ordinances in application to Peace, Good order and good government as follow:... to support the proposition that the formula Peace order and good Government used so often in measures conferring powers to make colonial law was to be taken to have the widest possible intendment....."

Was found in contrary light to the natural meaning of those words. Inciting the example of Winfat Enterprises (1985) AC, 733,747, Lord Justice Laws brought to light that expediting the augustness of rule to exclude beneficence of principle made

"No difference to the power breadth that the colonial legislature in question is not established on representative principles. Cf Li Hong Mi (1920) AC 735"

He continued: "the authorities demonstrate... that a colonial legislature empowered to make law for the Peace order and good Government of its territory is the sole judge of what those conditions.... require... But the colonial legislatures authority is not wholly unrestrained; Peace order and Good government may be a very large tapestry, but every tapestry has a border"

And further: " in answering the question whether a particular measure... can be described as conducing to the territories Peace, order and good government, it is .... no anachronism.... for the court to apply the classic touchstone given by our domestic public law for the legality of discretionary public power as it ids enshrined in Wennesbury (1948) 1KB 223"

Under the subheading "The Legality of the ordinance" the Lord Justice goes on to facilitate a clear review if albeit an analogous to contemporary legislative ambiguity. He declares that the effect of the ordinance in Question denudes the populace of their natural rights and that peace, order and good governance that meant "nothing save by reference to the population. They are to be governed, not removed" (from the island of nascence) yet the broad principle is answered- authoritative edicts as jure dare no matter how clothed, cannot remove inherent right, which, as he points out elsewhere in the judgement" will be creatures of the Common law since their existence would not be the consequence of the democratic political process but would be logically prior to it"

To adapt the basic principle within Lord Justice Laws finding where he finds it objectionable that wholesale substantive rights are removed (in this case the complete population) which cannot conduce to the territories peace order and good government even for the purpose of national security which in such contextual application is merely a "formula for conferring unfettered powers"

He continues: "each of the words, peace order and good government in relation to a territory necessarily carries with it (the implication that the intent is beneficent"....to hold that the expression used (in such a way) justifies the provisions ... would be an affront to any reasonable approach to the construction of language. I would conclude therefore that the ordinance was unlawful.

The appellant seeks the following orders from the court.

Appeal allowed and the matter be dealt with in accordance with law by a jury of his peers.

That the Australia Act be declared Invalid

That the Weapons Act be declared invalid

That the office of Governor Act 1987 be declared invalid

That a referendum under Section 53 of the Queensland Constitution be held for all alterations to the office of Governor

That the court declines 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.

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 21 day of March 2000