Form 62
0.69A.r.6(2)
IN THE HIGH COURT OF AUSTRALIA
BRISBANE OFFICE OF THE REGISTRY
No. B12 of 2003
BETWEEN
MARTIN ESSENBERG – APPLICANT
and
THE QUEEN - RESPONDENT
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.
Q1. Were the people of Queensland 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) and Sect 53 of the Queensland Constitution 1867?
Q2. Is the Weapons Act 1990, in so far as it denies the people the right to keep and bear arms, within the constitutional power of the State of Queensland?
Q3. Does the Weapons Act 1990 on a due and proper construction purport to deny the Applicant the right to a jury trial? And if so
Q4. Is it within the constitutional power of the State of Queensland to do so?
PART II – BRIEF STATEMENT
OF FACTUAL BACKGROUND
1. The Applicant pleaded not guilty in the Nanango Magistrates Court in the Magistrates Court District of Kingaroy, Queensland, to the charge that, on 24 August 2000, he possessed a weapon namely a .22 calibre rifle stock, category A weapon, whilst he was not authorised to possess the weapon under a licence or permit to acquire and without lawful authority, justification or excuse contrary to Section 50, Weapons Act 1990 (Qld).
2. The charge was heard on 14 December 2000 and 25 January 2001 and pn 25 January 2001 the Applicant was convicted and fined the sum of $400 in default 16 days imprisonment. The weapon was forfeited.
3. The Applicant appealed that decision to the District Court of Queensland at Kingaroy. On 31 May 2001 His Honour Judge Robertson dismissed the Applicant’s appeal.
4. The Applicant applied to the Court of Appeal, Supreme Court of Queensland, for leave to appeal against his conviction before the Magistrate and on 31 January 2002 the Court of Appeal unanimously dismissed the application.
1.
The Appellant’s argument supports the following summarised conclusions
:
(1)
The Bill of Rights 1689 is part of the law of Australia and of individual
States.
(2)
It operates in Australian States independently of any State
statute.
(3)
A State legislature does not have the same unrestricted power as the
Westminster Parliament (with its unwritten constitution) to repeal a law of such
great constitutional importance as the Bill of
Rights.
(4)
Under the Bill of Rights, Article 7, there is a right to keep and bear
arms.
(5)
There is nevertheless power in a State to regulate, without completely
abrogating, the right to keep and bear arms.
(6)
The 1990 Act oversteps the boundary between regulation and
abrogation. It effectively
negatives the right as a real right and replaces it with a mere licensed
privilege granted by government.
Proportionality in the regulation of the right has been replaced by
disproportion.
The individual items in that summary do not all need further or elaborate
explanation; but as part of the
convenient organisation of this Summary we refer to each of them in
turn.
The Bill of Rights 1689: part of the law of Australia and of
individual States
2.
For selective quotations supporting the assertion that the Bill of Rights
is part of the law of Australia, and of the individual States, see, e.g., in
respect of Article 9 of the Bill of Rights R v Murphy (1986) 5 NSWLR 18
at 25
“There is no
contest that the Bill of Rights is presently part of the law of
Australia”.
See also, the same point made (generally, and not in relation to Art. 9)
in the dissenting judgment of Murphy J in the High Court in the Australian
Builders Federation case (1982) 152 CLR 250; and by Kirby P in his dissenting
judgment in Smith v The Queen (1991) 25 NSWLR 1 at p.13, where he
indicates his view that:
“… it [the Bill of Rights] is, from the commencement of the (NSW)
Imperial Acts Application Act 1969, in force in the State by the additional
force of that Act”.
3.
The words underlined in that quotation are inconsistent with the Bill of
Rights having no place in the law of New South Wales except by virtue of the
1969 Act; and our submission is that the Bill of Rights operates in Queensland,
as in New South Wales and other Australian States independently of any State
statute.
The operation of the Bill of Rights in individual States is not dependent upon any State enactment such as, in New South Wales, the Imperial Acts Application Act 1969
4.
This proposition is supported by the view of Kirby P in his judgment in
Smith v The Queen (1991) 25 NSWLR 1 at p.13 quoted in paragraph 2
above.
5.
Any suggestion that the operation of the Bill of Rights in an Australian
State depends exclusively on the legislation enacted in that State is
inconsistent with judicial recognition that the Bill of Rights is part of the
law of Australia.
6.
No additional force, as for example might be provided by express
recognition or adoption in State legislation, is required in order to make the
Bill of Rights clearly part of New South Wales or Queensland law. The Bill of Rights is treated by
Halsbury Laws of England and Halsbury Statutes as remaining part
of the law of England, and is recognised judicially as part of English statute
law; see, e.g., R v
Parliamentary Commissioner for Standards ex p. Al Fayed [1998] 1 WLR 669;
and see also Prebble v Television New Zealand Ltd. [1995] AC 321 at
332.
7.
That position in English law is matched in Australian law publications
and reports and, while it has been said that the Bill of Rights is no more than
an historical curiosity, that is not an acceptable proposition nor one which
could be expected to find acceptance in any of the Australian courts, whether at
State or Commonwealth level.
State legislative power to repeal the Bill of
Rights
8.
The way in which we have formulated the proposition in paragraph 1(3)
above contrasts the unrestricted power of the Westminster Parliament (with its
unwritten constitution) with any power of a State government in Australia to
repeal a law of such great constitutional importance as the Bill of
Rights.
9.
We have not ignored the provision in s.3(2) of the Australia Act 1986
that -
"the powers of the Parliament of a State shall include the power to
repeal or amend any such Act ... in so far as it is part of the law of the
State".
The reference there to "any such Act ..." is to "any existing or future Act of the Parliament of the United Kingdom".
10.
We submit that the power to "repeal or amend" is not to be interpreted as
including an implied power to do so; and any exercise of the power must,
therefore, expressly repeal or amend. There has been in England with its
unwritten constitution and "Dicey" view of the all-embracing power of
Parliament, some debate about whether, for example, the provisions included in
the European Communities Act 1972 s.2(1) and (4) are capable of being
impliedly amended by a subsequent statute. What those provisions cleverly achieve
includes this: that subsequent
enactments are to be construed and take effect subject to the general provision
in s.2(1) that the law established under the Treaty of Rome and other Community
Treaties has automatic legal effect in the UK. There is a view that while those
provisions in s.2 of the 1972 Act can be repealed or amended by a
subsequent Act of Parliament, there is no implication of their partial repeal or
amendment by a subsequent Act of Parliament which is inconsistent with Community
law. That argument might have been
deployed to avoid the result of the Factortame litigation [1991] 1 AC 603
which was that provisions in the Merchant Shipping Act 1988 were not part of UK
law because of inconsistency with Community law. If the English courts - according to one view mistakenly - can
regard statutory provisions enacted in 1988 as having no legal effect because
they had to be read subject to the earlier 1972 Act and, so read, were contrary
to Community law and void, that represents some apparent curtailment of the
"Dicey" concept of an all-powerful Westminster Parliament, at least to the
extent of indicating that a later Act's inconsistency with Community law is not
sufficient, by implication, to amend pro tanto the provisions in the 1972
Act. The effect is that, even at
Westminster, such amendment must be express and mere implication is
insufficient; and the decision to
that effect in Thoburn v Sunderland Council [2003] QB 151 is consistent
with the principle that in England any repeal or abrogation of fundamental
constitutional rights requires express statutory provision. That principle should be applied equally
to the Australian Commonwealth and State legislation where parliamentary
legislative power is more restrained than at
Westminster.
11.
In para.9 above we refer to s.3(2) of the Australia Act 1986. Assuming the validity of that Act, the
principle that repeal or abrogation of a fundamental right recognized by the
Bill of Rights requires express words must, we submit, apply here; but, if (as we submit) the Australia Act
1986, having substantially changed the Australian constitution without recourse
to the referendum procedure required by s.128 of the Constitution (as set out in
s.9 of the Commonwealth of Australia Constitution Act 1900) is not part of the
law of Australia, respondents to this appeal can derive no comfort or benefit
from s.3(2) of the Australia Act 1986.
The passage of years may make it more difficult than in 1987 to predict
success for such a challenge; but,
in any challenge to State-enacted gun laws, it is appropriate to include that
very basic challenge to the Australia Act 1986 although it is not essential for
success in the attack on those gun laws.
Article 7 of the Bill of Rights
12.
Unless Article 7 in particular, or the Bill of Rights as a whole, has
become a dead letter or of merely historical interest, that Article confers on
subjects a right to keep and bear arms for their defence. There is no warranty under Australian
law for the proposition that this Article of the Bill of Rights has been
expressly repealed. In England -
with its unwritten (or, in better jurisprudential language, "uncontrolled")
constitution and its apparently continuing judicial addiction to the "Dicey"
concept of the power of Parliament - Article 7 may yield place so far as
necessary to give effect to legislation controlling the possession of firearms,
but any conceptual difficulty about challenging English firearms legislation
cannot apply to equivalent States legislation in Australia. The "uncontrolled" character of the
English constitution and the perhaps exaggerated "Dicey" view of the supremacy
of parliament are not matched in Australia. The Commonwealth and the States of
Australia have "controlled" constitutions;
and Article 7 is part of the law of Australia and has not been expressly
repealed at Commonwealth or at State level.
Power to regulate, but not abrogate or render
nugatory, the right to bear arms
13.
Article 7 itself can be regarded as contemplating the possibility of
regulation.
14.
Article 7 provides :
"That subjects which are Protestants may have arms for their defence
suitable to their conditions as allowed by
law".
15.
Nothing turns on the words "which are Protestants"; because in 1689 in England that was
virtually everyone and, in the events leading to the replacement of James II by
William and Mary, the ancient individual right to bear arms was in question only
as insisted upon by members of that majority in their resistance to the
absolutist pretensions of James II.
In its historical context the absolutist denial of the ancient right was
simply overthrown and Article 7 was, in practical effect and understanding,
declaring the ancient right. It was
only its exercise by protestants which had been under temporary absolutist
challenge. Article 7 is properly
therefore interpreted - if necessary by applying the maxim about
contemporanea expositio - as declaring the right of all subjects
to bear arms.
16.
But "suitable to their conditions and as allowed by law" :- We do not think it necessary to explore
here what can have been contemplated as not suitable to the condition of
any particular person. For a man
living in an ordinary house it would not have been suitable to his condition to
arm himself with a battery of cannon deployed about or around his house, but
wholly suitable for him to have available a personal firearm or a musket or
muskets and arms that were not firearms.
And such suitability would vary from time to time and according to
particular circumstances.
17.
The words "and as allowed by law" may have been no more than
declaratory, part of the declaration that the law allows and had always allowed
this individual right. But equally
it may be that these words contemplated the possibility of subsequent
regulation of the right to bear arms. What cannot, in our submission, be
attributed to these words is any suggestion that regulation might diminish into
non-existence the right declared in Article 7: it was a proud, ringing declaration of
the right to bear arms; and the
closing words cannot sensibly or plausibly be interpreted as referring to a
possibility of negativing or destroying that
right.
The new gun laws - enacted by States - were in
excess of the States' powers
18.
These exceeded what may be described as the quantum of power available to
the enacting States.
19.
There has been no attempt in this State legislation to say
expressly that Article 7 of the Bill of Rights is, so far as necessary to
give effect to the legislation, repealed or modified (and there would be room
for this challenge even if that had been expressly stated). The reality is that the legislation
plainly exceeds what is reasonably necessary to control or regulate the
possession of firearms. It is here
that the principle or concept of "proportionality" is
relevant.
20.
"Proportionality" does not express a new principle; but in England it has attracted
attention if only because the principle of "subsidiarity", introduced into the
Treaty of Rome by the Maastricht Treaty to set a sort of an inadequate limit to
the powers of European Community institutions where legislative objectives can
be achieved within Member States and without Community lawmaking, has become
"subsidiarity and proportionality" in the subsequent Amsterdam
Treaty.
21.
The Weapons Act 1990 manifestly stretches its intended grasp beyond the
legal regulation of what is clearly described in the Bill of Rights as a right
to bear arms. Section 3 (principles
and objects) confirms firearm possession and use as "a privilege that is
conditional on the over-riding need to ensure public safety" and declares that
an object of the Act is
"to require each person who possesses or uses a firearm ... to prove a
genuine reason for possessing or using the
firearm".
22.
So a mere privilege is purportedly substituted for what is a
right.
23.
Section 12 prohibits the issue of a licence "unless the Commissioner is
satisfied that the applicant has a genuine reason for possessing or using the
firearm" and declares that "an applicant does not have a genuine reason
for possessing or using a firearm" if the reason is
for
·
personal protection or
·
the protection of property except in circumstances falling within the
enacted Table of Reasons.
24.
The objection to this goes far beyond the issue of proportionality or
even reasonableness. It is a denial
of the right to bear arms.
The Act does not merely regulate the right. It denies the right and replaces it with
a mere privilege and makes it very plain that the issue of a licence is a matter
of discretion :
"The Commissioner may issue a licence in respect of an
application, or refuse any such application"
(s.11(1)).
25.
This is denial of right and the purported conversion of it into a
discretionary privilege available if a member of the Executive (the
Commissioner) thinks it appropriate.
26.
But the Appellant’s challenge does not rest solely on that. There is also the concept or principle
of proportionality. There is here disproportion in the means selected for
achieving the legislator’s apparent object or purpose. We submit that it is
material to ascertain whether the particular provision goes beyond what is
reasonably necessary for the achievement of the purpose and in language used by
Mason CJ -
"whether the provision causes adverse consequences, including
infringement of fundamental values unrelated to the achievement of that object
or purpose.”
It follows that, even if the Court were inclined - in our
submission, mistakenly - to reject the analysis of the Act as denying, and not
merely controlling, the right to keep and bear arms, the issue of
proportionality or disproportion necessarily
arises.
27. And on any
reasonable analysis the Act does, and aims to achieve, much more than to control
firearms to a rational and defensible extent without abrogating or extinguishing
all right. Of course the
arming of society involves dangers for society which can reasonably be
controlled. No-one would regard it
as unreasonable to prohibit or restrict the possession of firearms by people of
weak or violent or suicidal character; nor to impose rules about the
safe-keeping of firearms by those who are not denied possession of them; and much more control can be involved
without over-stepping the boundary of what is reasonable and proportionate. All we need say here is that the Act
makes no pretence or attempt to keep the restrictions within what can be
regarded as reasonable.
Proportionality and reasonableness have been replaced by disproportion
and unreasonable restriction.
28. In this
country with animals and other wildlife which can be very dangerous refusal to
allow the possession and use of firearms for self-protection will not be easily
justified. Of course the
unrestricted availability of firearms in some countries can produce a society in
which killings are more frequent and more shocking than they would be if
firearms were not so available. But
over-zealous regulation within unnecessarily restrictive rules is unrealistic
and, if not challenged in the courts, could easily lead to widespread disregard
of the rules. In the United
Kingdom, the legislative over-reaction to the tragic shooting of Dunblane
schoolchildren did not take any account of the fact that the illegal, that is to
say unlicensed, possession of arms is so widespread that arms used in murders
and violence are usually illegal arms.
29. So far as
the Weapons Act purports to repeal or abrogate the right to keep and bear arms
its unconstitutionality is covered by what is said above. If that right, recognized in Article 7
of the Bill of Rights, can be abrogated or revoked that certainly cannot be
achieved without express statutory words; because even if the Queensland
legislature has power to repeal Article 7 it cannot do so by implication and in
the 1990 Act there are no express words of repeal of Article 7. The need for express repeal is not
displaced by reference to s.3(2) of the Australia Act 1986 because, if that
provision is effective, there cannot be an implied repeal terminating
this fundamental right.
30. The
unconstitutionality of reducing the common law right to trial by jury to be mere
discretionary privilege is subject to parallel -
but not exactly parallel
- reasoning. Not exactly parallel because the right
to trial by jury is not so directly recognised in the Bill of Rights; but its
recognition as an ancient and fundamental common law imported into Australia and
Queensland as part of the common law of England, and, therefore, of the common
law of Australia, is amply supported by the citations in the part of this
Summary challenging the way in which s.161 of the Weapons Act was treated as
enabling the Magistrate to deny the appellant what he claimed and claims as his
right to a jury trial. If such a
fundamental right can be over-ridden, that result is not achieved in the absence
of statutory words expressly over-riding what is a right and not a
privilege.
31. The
Australia Act 1986 is not part of the law of Australia or of Australian
States.
32. That bold
submission has as its very simple proposition that the 1986 Act could not alter
the Australian Constitution, or the law of Australia, without the approval of
Australian electors obtained by referendum as required by paragraph 128 of the
Constitution. There was no such
referendum. The approval of
electors was not obtained: and,
therefore, the Constitution was not altered. The purported alteration of it by the
Australia Act 1986 was, therefore, in Australian law, without legal effect and a
nullity. And, as the whole purpose
and purported effect of the Australia Act 1986 was to affect and alter the
Australian Constitution, that Act was not effectively or validly enacted as part
of Australian law, and has not become part of Australian law. What has been said above summarises the
argument; and what follows provides a lengthy, albeit somewhat abbreviated,
explanation of the legal reasoning on which it is founded.
33. On 17
February 1986 the Australia Act 1986, a United Kingdom statute, received the
Royal Assent; and by statutory instrument made under s.17(1) it was brought into
force, as part of United Kingdom law, on 3 March 1986 at 5a.m. Greenwich
Mean Time.
34. The
preamble to the United Kingdom statute recites that -
“the
Parliament and Government of the Commonwealth of Australia have, with the
concurrence of the States of Australia, requested and consented to the enactment
of an Act of Parliament of the United Kingdom in the terms hereinafter set
forth.”
35. An English
court would not enquire into the accuracy of that preamble or into the legal and
constitutional effectiveness or propriety of -
(1)
the
recited request and consent of the Australian Commonwealth Parliament and
Government or
(2)
the
recited concurrence of the States of Australia.
36. That is in
accordance with the principle of English law expressed by Lord Campbell in
Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 C1 & F710 at
725, 8 ER 279 at 285:
“All
that a court of justice can do is to look to the Parliamentary roll :
if from that it should appear that a bill has passed both Houses of
Parliament and received the Royal Assent no court of justice can inquire into
the mode in which it was introduced into Parliament, nor into what was done
previous to its introduction, or what passed in Parliament during its
progress in its various stages through both Houses. I trust, therefore, that no such inquiry
will again be entered upon in any court ….., but that due effect will be
given to every Act of Parliament, private as well as public, upon what
appears to be the construction of its existing provisions.”
37. The
strength of that principle in English law was emphasized in the unhappy case of
Pickin v British Railways Board [1974] A. C. 765, where it was clear that
there had been a deliberate failure to follow the parliamentary procedures
prescribed by standing orders for a private bill which proposed to deprive
citizens of property rights. In
that case at p.789 Lord Morris said:
“It
is the function of the courts to administer the law which Parliament has
enacted.
….. When an enactment is passed there is
finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as
to the correct interpretation of an enactment: there must be none as to whether it
should be on the Statute Book at all.”
38. But
whatever lawmaking supremacy or sovereignty is attributed to the United Kingdom
Parliament that is an effect or incident of the largely unwritten English
constitution. Where as in Australia
there is a written constitution, and that written constitution defines the
position or powers of the legislature, such “a legislature has no power to
ignore the conditions of law-making that are imposed by the instrument which
itself regulates its power to make law”:
see the Ceylon case Bribery Commissioner v Ranasinghe [1965] AC
172 at 197; and the judgment in that case continued, significantly:
“This
restriction exists independently of the question whether the legislature is
sovereign, as is the legislature of Ceylon …
….. Such a constitution can indeed be
altered or amended by the legislature, if the regulating instrument so
provides and if the terms of those provisions are complied with: and the alteration or amendment may
include the change or abolition of those provisions. But the proposition which is not
acceptable is that a legislature, once established, has some inherent power
derived from the mere fact of its establishment to make a valid law by the
resolution of a bare majority which its own constituent instrument has said
shall not be a valid law unless made by a different type of majority or by a
different legislative process.”
39. The
preamble to the (Australian) Australia Act 1986 recites that -
“the
Prime Minister of the Commonwealth and the Premiers of the States at conferences
held in Canberra … agreed on the taking of certain measures to bring
constitutional arrangements affecting the Commonwealth and the States into
conformity with the status of the Commonwealth of Australia as a sovereign,
independent and federal nation And whereas in pursuance of paragraph 51
(xxxviii) of the Constitution the Parliaments of all the States have
requested the Parliament of the Commonwealth to enact an Act in the terms of
this Act.”
40. Immediately
before the passing of the (Australian ) Australia Act 1986 the Constitution
contained - in paragraph 128, as altered by the
Constitution Alteration (Referendums) Act 1977 (Act 84 of 1977) s.2 -
the following provision:
“128. This Constitution shall not be
altered except in the following manner:
The proposed law for the alteration thereof must be passed by an
absolute majority of each House of Parliament, and not less than two nor more
than six months after its passage through both Houses the proposed law shall be
submitted in each State and Territory to the electors qualified to vote for the
election of members of the House of Representatives
…..
…..
And
if in a majority of the States a majority of the electors voting approve the
proposed law, and if a majority of al the electors voting also approve the
proposed law, it shall be presented to the Governor-General for the Queen’s
assent.”
This
provision for a referendum as an integral part of the legislative process of
altering the constitution was in the constitution as originally enacted and
proclaimed: see the (UK)
Commonwealth of Australia Constitution Act 1900.
41. In the
preamble to the (UK) Australia Act 1986 the recital of Australian request and
consent and concurrence looks back to section 4 of the Statute of Westminster
1931 which provides:
“4. No Act of
Parliament of the United Kingdom passed after the commencement of this Act shall
extend, or be deemed to extend, to a Dominion as part of the law of the
Dominion, unless it is expressly declared in that Act that that Dominion has
requested and consented to the enactment thereof.”
The
Statute of Westminster contained in s.8 a saving provision in the following
terms:
“8. Nothing in
this Act shall be deemed to confer any power to repeal or alter the Constitution
or the Constitution Act of the Commonwealth of Australia … otherwise than in
accordance with the law existing before the commencement of this
Act.”
S.9
contained saving provisions with respect to States of Australia. S.10 provided that sections 2, 3, 4, 5
and 6 should not extend to Australia as part of the law of Australia unless
adopted by the Parliament of Australia.
42. Sections 2,
3, 4, 5 and 6 were expressly so adopted, with effect from 3 September 1939, by
the (Australian) Statute of Westminster Adoption Act 1942.
43. The
Australia Act 1986, as enacted in Australia is correctly regarded -
if and to the extent that it is validly and effectively so enacted -
as altering the Constitution of Australia. English courts would not enter upon any
enquiry into the validity or effectiveness of the (UK) Australia Act 1986.
44. But in
Australia the Constitution is a document and not, as in the UK, unwritten. If the Constitution was to be altered
the principle stated in Bribery Commissioner v Ranasinghe and quoted in
paragraph 38 above was applicable to any alteration of that Constitution. According to that principle, the
requirements of paragraph 128 of the Constitution had to be complied with if the
Constitution was to be effectively altered; a referendum was necessary; and an
alteration of the constitution without any referendum could not be valid and
could not properly be recognized by any court. That must be the legal position unless
there is some rival principle which effectively displaces the simple and
compelling logic of that relatively elementary principle of constitutional
law. There is no such rival
principle.
45. In ex
parte Skyring (1986) there was an attempt to establish in the Queensland
courts that the Australia Acts (Request) Act (by which the Queensland Parliament
was expressed to participate in the request to the Westminster Parliament to
enact what became the (UK) Australia Act 1986) was beyond the legislative power
of the Queensland Parliament. The
judgment of Connolly J. at first instance went to appeal. The case was argued on the proposition
that the Request Act was contrary to certain entrenched provisions of the
Queensland Constitution about the functions of the Governor of Queensland in
relation to the enactment of legislation:
that if valid it would effect, at least impliedly, an alteration in
the Office of Governor, which could not be made without a Queensland
referendum. For the purposes of the
present argument that point is not of direct importance. But there are some relevant and
interesting judicial observations in the case:
(1) Connolly J.
recognized, as he was bound by A. G. (N.S.W.) v Trethowan [1932] AC 526
to recognize, that failure to comply with manner and form requirements of
entrenched provisions of the Queensland constitution would, if applicable, have
invalidated the Act.
(2) Connolly J.
and the Court of Appeal considered, however, that the Act did not alter the
office of Governor and the basic objection to the Act was therefore without any
foundation. That was sufficient to
defeat the application.
(3)
The
courts did, however, refer to the (UK) Australia Act, the form of which had been
scheduled to the Queensland Act because the Queensland Act was expressed as a
request for the enactment of what became the Australia Act.
(4)
It
was, also, correctly pointed out that “so far as the Imperial Act is concerned,
no request or consent or concurrence of a State was needed before the
Imperial Parliament could legislate”.
That observation was correct because the Statute of Westminster s. 4
required request and consent of the “Dominion” (i.e. the Australian
Commonwealth), but did not require the consent of any State, for an Act of the
Westminster Parliament to have the extent mentioned in s.4. It is also significant that an
alteration of the Australian Constitution did not, by paragraph 128, require
concurrence of the State Parliaments:
it required approval of electors in the States in a
referendum.
(5)
The
judges pointed to the supremacy of Parliament as applicable to an Act of the
Westminster Parliament; but they did not make any distinction between the
supremacy of the Westminster Parliament in English law and its power to affect
or change, for purposes of Australian law, the constitution of
Australia.
46. In 1986 any
change in the Australian Constitution had, as a matter of Australian law,
to conform to the rules about manner and form, and about submission to the
electors in a referendum, set by the Constitution of Australia. Legislative power in Australia is
and was regulated by the Constitution of Australia; and the restrictions upon
that power imposed by paragraph 128 could not be over-ridden or sidestepped by a
simplistic resort to the supremacy or omni-competence in English law of
the Westminster Parliament.
Legislative power had been transferred to Australia. It could not be taken back, so far as
Australian law was concerned, by new legislation at Westminster.
47. The
architects of the Australia Act 1986 did not however consider it appropriate to
rely exclusively on the supremacy or omni-competence of the Westminster
Parliament. They appear to have
thought that by bringing the case within s.4 of the Statute of Westminster, the
UK Australia Act 1986 - incontrovertibly part of the law of
England - would be part of the law of Australia
merely because no-one could enquire (in English courts) whether there had been
the Australian request and consent recited in the Act. So, disregarding paragraph 128 of the
Australian constitution, those architects arranged for each State
Parliament to pass a Request Act and for the Commonwealth
Parliament to pass both a Request and Consent Act and the Australian
version of the Australia Act 1986.
48. But how
could that procedure over-ride or avoid paragraph 128? Plainly it did not. The restrictions upon legislative
power to alter the constitution of Australia were not over-ridden or
avoided. There was, simply,
non-compliance with those restrictions; and in Australian law and in the
Australian courts, the constitutional logic is compelling: non-compliance with paragraph 128, in
particular the failure to obtain the electors’ approval by referendum, makes the
Australia Act 1986 invalid: that
Act is not part of Australian law; the constitution has not been altered or
changed by it; and Australian courts are as logically bound to recognize the
invalidity of this Act as the South African courts were bound, in Harris v
Donges [1952] 1 TLR 1245, to decide that a purported South African statute
was invalid, and not part of South African law, because the manner of its
enactment had not complied with the requirements of the South African
constitution for an alteration of the entrenched provisions of the
constitution.
49.
There
is one other, very formalistic, argument to support the validity of the
(Australian) Australia Act 1986 as part of the law of Australia; The
Constitution is set out in section 9 of the Commonwealth of Australia Act 1900
(63 & 64 Vic c.12). The
Constitution as there set out has been amended on several occasions following
the referendum and other procedural requirements of the Constitution’s
s.128. The Australia Act did not
say that the Constitution of the Commonwealth as set out in section 9 of the
1900 Act, as previously amended in accordance with its section 128, is now
further amended as follows. As a
matter of form the 1986 Act was not expressed as making a new change in
that Constitution, although the constitutional change which it was intended to
achieve was recognisably of much greater importance than any previous change
achieved under s.128. Was the need
for proceeding under s.128 effectively sidestepped by the simple device of not
making any new formal change in the wording of the Section 9 Constitution? The draftsmen of the 1986 Act plainly
thought so. But that was a matter
of form only, not of substance. The
substance was a fundamentally important change in the constitution of
Australia. The form was that the
Constitution was not being altered.
Our submission is that substance was what mattered. Substance not form governed the need for
section 128 procedure. Great
constitutional change could not be made as the 1986 Act purported to make
it. The Court should so
decide.
50. There are,
of course, many in Australia, who will be resistant to the logic of this
submission; and may find it politically unacceptable. But this is a matter of law. The Courts of this country apply the law
objectively and without political or other partiality. There are circumstances in which it is
proper for the courts to apply what is known as judicial deference to what could
be categorized as political decisions by members of government exercising
discretions. But we are not in that
sort of territory. We are
considering the law and inviting this great Court to consider the law; and this
Court is the ultimate guardian of Australian law.
51. As
mentioned in paragraph 39 above the preamble in the (Australian) Australia Act
1986 refers to paragraph 51(xxxviii) of the Constitution as authority for the
procedure adopted. Paragraph 51
enacts that -
“51. The Parliament shall,
subject to the Constitution, have power to make laws for the peace,
order, and good government of the Commonwealth with respect
to:
…..
…..
(xxxviii) The exercise within the Commonwealth, at
the request or with the concurrence of the Parliaments of all the States
directly concerned, of any power which can at the establishment of this
Constitution be exercised only by the Parliament of the United Kingdom or by the
Federal Council of Australasia”
But
that is defining the powers of the Commonwealth Parliament. The powers are “subject to the
Constitution”; and it is not in our submission permissible or possible to
interpret the power in sub-para. (xxxviii) as extending to an alteration of
the Constitution; still less an alteration of the Constitution without
observance of procedural requirements of paragraph 128.
52. In 1986 it
was thought appropriate to refer to sub-paragraph (xxxviii); but it was plainly
not thought unnecessary to ask Westminster to enact the new Australia Act at
Westminster. Sub-para. (xxxviii)
was not sufficiently robust to support enactment in Australia alone. A law to alter the Constitution is not a
law made “for the peace, order and good government of the Commonwealth” as
mentioned in the opening words of paragraph 51. It may be said that before the
Constitution was enacted in 1900 the Westminster Parliament had legislative
power to enact the provisions or any of the provisions subsequently enacted as
part of the Constitution; but the Constitution was enacted; and it made
elaborate provision in paragraph 128 for its own alteration. So that, in order to make good sense of
the Constitution as a whole, sub-para. (xxxviii) of paragraph 51 must be given a
sensibly narrowed interpretation:
it cannot sensibly be understood as permitting an alteration to the
Constitution without a referendum.
The sensible view of sub-para. (xxxviii) is that is relates to laws “for
the peace, order and good government of Australia” within and subject to the
Constitution. Alteration of the
Constitution stands quite outside paragraph 51 and sub-paragraph
(xxxviii).
Summary of Argument re: Interpretation
53. The reasoning of the Magistrate in regard to the alleged mandatory requirement of summary jurisdiction is difficult to follow. [Application Book Page 5 Line 39 et seq.] Determining it to be, as he does, the necessary consequence of such offence being equated with a “simple offence” does not seem to follow since as he notes in his judgment “simple offence” includes indictable offences. What “simple offence” seemingly encompasses is offences that may be tried summarily, not necessarily those that must be. [As to use of the word ‘simple’ in this context see the judgment of Deane J in Kingswell v Reg [1985] 159 CLR 264]
54. The Applicant claimed the right to a jury trial before the Magistrate [A.B. Page 5], before the D.C. judge [A.B. Page 16 Lines 29-30 Page 20 Lines 9-11] and the C of A [ A.B. Page 22 Lines 39-40 Page 25 Line 29 et seq.] and now seeks to raise it in his application to the High Court
55. Jury trial in criminal matters is a C.L. right. R v O’Connor [1902 ] 28 VLR 62 {FC] is authority for the proposition that at CL every person charged with a felony has a right to a jury trial. This is so regardless of the fact that the offence is created by statute, which statute seemingly mandates a summary procedure. O’Connor’s case related to the Victorian Gaols Act which created the felony of escape from prison and which purported to stipulate that all proceedings under the act “shall” be taken in a summary way.
56. Blackstone
Commentaries on the Laws of England 4th Ed 1896 349-50 suggests juries are part of a
strong and twofold barrier between the liberties of the people and the
prerogative of the crown because the truth of every accusation is confirmed by
the unanimous suffrage of 12 of his equals and neighbours indifferently chosen
and superior to all suspicion.
57. Civil matters are of limited use in this area but in Gerlach v Clifton Bricks P/L [2002] HCA 22 {30 May 2002] Kirby J said at Paragraph 63, “ As this court has repeatedly described it, the jury is the “constitutional” mode of trial for questions of fact”.
58. In R v Scot & Barclay English Court of Appeal unreported 12 May 1997 Rose LJ said “Trial by jury is one of the cornerstones of our democracy. Lord Devlin described it as the lamp which shows that freedom lives {Trial By Jury}. Its restoration or adoption by countries in Eastern Europe has symbolised in recent years their establishment of democracy”
59. In Tassell
v Hayes [1987] 163 CLR 34 a South Australian act conferred on a defendant in
express terms an unencumbered right to be tried by a jury. [As, is submitted, does the common
law.] Mason, Wilson & Dawson JJ
said; ”This right ought not to be
diminished save by language which is reasonably capable of no other
construction”. [ Sargood Bros v The Commonwealth [1910] 11 CLR 258 and the other cases referred
to in Pearce on Statutory Interpretation in Australia 2nd Ed p103]. In the same case Deane J said;
“Legislative provisions modifying or abolishing the traditional common law right
of criminal trial by jury should be strictly construed in favour of the
accused.”
60. Similar views regarding fundamental rights generally were expressed in Puntoriero v Water Administration Corporation [1999] HCA 45 [9 September 1999] at paragraphs 36-7 by McHugh J and paragraphs 59-60 by Kirby J [who nonetheless dissented on the basis of a clear intention], in Jamieson v Reg 1993 177 CLR 577 @ 596 and by Gaudron J, in Bropho v WA 1990 171 CLR I @ 17-8. See also CAC v Yuill 1991 172 CLR 319 @ 339 and Piper v Corrective Services Comission 1986 6 NSWLR 352 @ 361. In Gerlach v Clifton Bricks P/L S 113/2000 [16 February 2001] Kirby J referred to the “constitutional right to jury trial”.
61. In a minority judgment in the C of A in Cowan v SA Police 1994 SASC 4805 [27 October 1994] Millhouse J said;” the right to trial by jury is such a fundamental right that it should not be taken away or even cut down except by the most express language: the provision of the Act and Rules should be strictly construed in favour of an accused,. Certainly these are penal provisions and that lends weight to Mr Abbott’s argument….. I accept Mr Abbott’s …argument”.
62. At Common
Law the procedure for bringing offenders to justice on criminal charges was by
indictment before a jury. [Chitty’s Criminal Law 2nd Edition 1826 Vol
1 p162]. Not all offences required
trial by jury. Only non-petty or
serious offences did so. A
determining factor [not necessarily the only one] was the significance of the
possible penalty. This aspect is
discussed at some length, in the context of the Constitution S 80 by Deane J in
his dissenting judgment in Kingswell v Reg. He considered that a possible
sentence of more than 1 year was ‘serious’. Dixon and Evatt JJ dissenting in Ex
parte Lowenstein [1937] 57 CLR 765 thought imprisonment itself was serious
enough. In Re Colina; Ex parte
Torney 1999 78 ALJR 1576, Kirby J
dissenting expressed a similar view to Deane
J
63. The offence
alleged against the Applicant is a serious or non-petty
offence;
(a) Weapons Act
S 50 does not create 3 offences but only one viz. Unlawful possession of a weapon. The 3 categories prescribed by
regulation are matters of aggravation only [Kingswell v Reg] Hence the maximum penalty as
proscribed by statute is 2 years
and creates a serious or non-petty offence.
(b) The Weapons
Act provides for arrest without warrant [S 140]. Also forfeiture and disqualification
(c) The
Applicant was arrested. [A.B. Page 4 Line 49]
(d) Given sub
paragraphs ]b] and [c] even if the relevant section created, contrary to sub-paragraph [a], 3 separate
offences it is unlikely the legislature intended that the three offences created
whereby the maximum possible penalties are set at 2 years, 1 year and 6 months
respectively should be treated differently
(e) In any
event the maximum penalty prescribed for the category alleged allowing for, as it does, 6 months imprisonment,
with or without the other potential factors of arrest, forfeiture and
disqualification, creates a serious or non-petty
offence.
64. Legislation should be interpreted literally unless it produces a patent absurdity or is manifestly contrary to the otherwise clearly expressed intention of the legislature. The literal meaning of the word ‘may’ as used in the Weapon Act S 140 and the Justices Act S19 is to empower but not mandate and should not be read as depriving an accused of a fundamental right. [Ward v Williams [1955] 92 CLR 496 @ 498]
65. It might be said, as in Gerlach’s case that assuming the Applicant had a right to a jury trial nonetheless having received a summary trial by a Magistrate that he has suffered no prejudice or that no substantial wrong or miscarriage has been occasioned. There is, however, a strong argument that the Magistrate erred in finding that a stock is a firearm [and hence, as defined, a weapon] on the basis that [as defined in the Weapons Act S.5] it is a major component part of a firearm. It is not one of the major component parts listed in the statutory definition thereof, which are all parts enabling a firearm to work as such. A stock is in the nature of [and sometimes in the context of firearms is referred to as] furniture; it adorns or equips but does not form part of a firearm. It is often discarded and many firearms are stockless. It seems clear that Judge Robertson in the District Court was troubled by this aspect and may have acquitted on this basis given any encouragement by the Applicant. [A.B. page 11 line 55 and page 14 line 22]. It is difficult to conceive that a Kingaroy jury would have accepted that a stock was a major component part of a firearm. If this is so then the Applicant has been wrongly convicted. It is besides the point to say that the Applicant did not argue this point at any stage. He pleaded Not Guilty and the onus is on the Crown to prove this aspect along with the other elements of the offence.
66. Despite Cowan v Reg A48 1994 [30 March 1995], the fact that this is a Queensland act should not preclude the High Court from examining the matter. If there is or is to be a common law of Australia it is important that the basic aspects of statutory interpretation particularly in so far as it relates to matters of such fundamental importance as the right to a jury trial should apply throughout the nation.
67. For a similar reason, the fact that an incorrect interpretation has applied for some time with possible numerous followings of such incorrect interpretation should not preclude it now being corrected particularly in such a fundamental aspect of the law. Nor is there any presumption that because the legislature has not sought to correct previous judicial rulings on the aspect that in some way it correctly reflects the legislative intention.
PART
IV – REASONS WHY SPECIAL LEAVE SHOULD BE GRANTED
The
questions at issue are of public importance in that they relate to and concern
the maintenance of the integrity of the Commonwealth and the Queensland
Constitutions and the preservation of fundamental rights.
PART
V – COSTS
That
the Applicant if successful be awarded costs but that otherwise there be no
order as to costs as there are issues of public importance which will be
benefited by having received the due and proper consideration of the High
Court.
PART
VI – REQUEST FOR ORAL ARGUMENT
The
applicant seeks to add to these submissions with verbal
argument.