This argument is in support of an application for special leave to appeal from the decision of McPherson JA Williams JA and Ambrose J sitting as the Criminal Court of Appeal of the Supreme Court of Queensland, delivered 31 January 2002.

PART 1 – SPECIAL LEAVE QUESTIONS

Q1: Did Criminal Court of Appeal usurp the constitutionally entrenched original jurisdictional powers of the High Court of Australia in refusing the appellant’s submission that only the High Court of Australia had power to determine the issues under contention under sect 78B of the Judiciary Act 1903?

Q2. Do the proceedings and judgments demonstrate a pattern of institutionalized bias against the applicant for the improper purpose of maintaining the status quo in Queensland and thereby bringing into denigration the impartiality and dignity of law and justice in this country

Q3. Were the people of Australia deprived of their constitutional safeguards by the passage of the Australia Acts (Request) Act 1985 (Qld,) the Australia (Request and Consent) Act 1985 (Cth) and 1986 Australia Act (Cth) without recourse to referendum pursuant to section 128 of the Constitution of the Commonwealth (Constitution)

Q4. Were the above enactments constitutionally "illegal" in that they breached the Commonwealth and State powers for "peace order and good government"?

Q5. Was the Governor’s Act, assented to 1st December 1987, constitutionally valid?

The Weapons Act (1990) is invalid since both the Australia Act (1986) are invalid as is the position of Governor 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.

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. It is contended by the respondents that 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 Common Law prerogative of Her Majesty 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 Preamble of the Australia Act 1986 is 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 susceptible 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. 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, it becomes evident that its main intent 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 Royal 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 my 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 it was brought to light during argument for the plaintiff that "Parliament cannot define or extend it’s constitutional power by 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 fatuus, 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) 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.

The lower courts erred in law and were 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.

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 principles 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.

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 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 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. The former 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.

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. Subverto, in Latin, means to overthrow, overturn. For such 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.

Lord Halsbury, in 1907, held, inter alia, that it 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." (our emphasis)

Again the last 2 sentences, 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.

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 souverainete, 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.

The Australia Act 1986 Being therefore void ab initio is invalid and the Colonial Laws Validity Act (1865) maintains virency.

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

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

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

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

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

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

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

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

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

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

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

Constitutional requirement for fundamental change ‘absolute’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accordingly, neither section 7(2) nor any other of the subsections of section 7 provide any authority which give rise to any subsequent enactment for the purpose of purported validation of the Governor’s position under those terms. The Constitution (office of Governor) Amendment Act 1987 (Qld) and the purportedly enlivening Letters Patent proclaimed in the Queensland Government Gazette on the 8 March 1986 are, based on our preponderate argument on the authorities, empty of substantive Constitutional principle and void ab initio, for even the Prerogative cannot be based on unfounded law.

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

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

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

The view for questionability is also aired in the preceding judgement in the lower court (Sharples v Arnison & ors. 2001 QSC 56) at para. 30 by Ambrose J: "…on one view it might be