OUTLINE OF APPEAL
R v Martin Essenberg
Lot 7 Runnymede Estate Rd
Nanango 4615
(07) 41 632 423
Appeal no 135/99
Appeal no 136/99
Your Honour, I ask that you use the power, purpose and function of the Court to establish the truth, the whole truth and nothing but the truth and to administer Justice.
I call upon the adherence by judges to their Oath of Allegiance and Judicial Oath which are to "be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second" and to "do right to all manner of people after the laws and usages of this State without fear or favour, affection or ill-will. SO HELP ME, GOD (2)
Your Honour, as I understand it, the independent Courts stand as mediators between Parliament and the citizen, in the implementation of the fundamental rights and rule of law.
I understand Lord Denning summed it up;- " The fundamental principle that, where there is any conflict between the freedom of the individual and any other rights or interests, then no matter how great or powerful those others may be, the freedom of the humblest citizen shall prevail...." (Freedom under the Law - Hamlyn Lectures 1st series p.4) see also e.g. I.R.C. v. Rossminster Ltd (1980) A.C. 952. (1)
Your honour I am ignorant of law. I have no money to pay some high priced lawer. Given my social circumstances I am surely amongst the "humble" mentioned, whose will should prevail against the mighty.
Another quote from Lord Denning is - "In a civilized society, legal process is the machinery for keeping order and doing Justice. It can be used properly or it can be abused. It is used properly when it is used for the vindication of mens rights or the enforcement of Just causes. It is abused when it is diverted from its true course so as to achieve an improper end. Or the corruption can be further entrenched by yet another denial of truth, law, justice and right. (1)
Your honour I have been denied both a trial by Jury and legal aid and ask that you correct this error rather than entrenching it further.
Your Honour the very beginning of the Constitution Act says we are "under the Crown" and the Coronation Oath says that the Queen must govern Australia and "execute Law and Justice with Mercy in all (Her) judgements".
As an Australian I am a subject of the Queen, and am entitled to the protection of the Crown and the charters such as Magna Carta, which guarantees the inalienable right of trial by jury.
English common law and the rights and freedoms granted by the charters of the Crown are our heritage because we are a constitutional monarchy.
In days before Magna Carta the Crown represented total power. Today it represents the denial of total power.
I contend that the Queen was misled by her ministers in giving the royal prerogative to Acts of Parliament that have infringed our liberties. (10)
I understand that the following summary is a correct statement of the law in relation to the Royal Prerogative:- (1)
"No prerogative may be recognised that is contrary to Magna Carta or any other statute, or that interferes with the liberties of the subject. (10)
The courts have jurisdiction therefore, to enquire into the existence of any prerogative, it being a maxim of the common law that the King ought to be under no man, but under God and the law, because the law makes the King. (10)
If any prerogative is disputed, the Courts must decide the question of whether or not it exists in the same way as they decide any other question of law. If a prerogative is clearly established, they must take the same judicial notice of it as they take of any other rule of law." (10)
The case of R v Lord Chancellor ex parte Witham implies that Acts of Parliament cannot repeal common law and our rights have fallen into abeyance through lack of a suitable challenge.
Under our system of a constitutional Monarchy, any statute law which in violation of the common law and to the prejudice of the people is void and inoperable and should not be granted Royal assent or if it has (because ministers have misled the governor) should be disallowed by the Governor who took an oath of allegiance to the Queen
The Judges oath of allegiance is to, "do right to all man according to law"- common law that is. He is further directed to take nothing intro consequence or example to the detriment of the subject's liberties (from the Bill of Rights)
Rights granted by imperial enactment such as Magna Carta cannot be taken away or "overridden" by Politicians or Judges. These rights are inalienable. It is just they are not enforced.
PARLIAMENTARY SOVEREIGNTY.
Your Honour, the Federal Parliament and the state Parliaments are not sovereign bodies. They are legislatures with limited powers. Any law they attempt to pass in excess of those powers is no law at all. It is void and entitled to no obedience. (1)
Any laws Parliament makes must be in accordance with the recognised principles of representative democracy, constitutional law and the rule of law
" For the Parliament to develop or improve on a fundamental right is one thing. But to enact legislation which expressly removes an already existing fundamental right, and to have that enactment blindly upheld by a Court, is quite another"
" If there is one thread which runs through the whole turbulent history of British constitutional development, it is the belief that we are the servants of fundamental constitutional rules which were there before us and will be there after we are gone. From the days when the King’s subjects demanded respect for the laws of King Edward the Confessor, through the centuries in which legendary superiority attached to such acts as Magna Carta, the Petition of Right, the Bill of Rights, the idea of our ancient rights and liberties has determined the form of our endlessly progressive/conservative constitutional change." (Allott, The Courts and Parliament Who Whom? (1979) CLJ. at 114)
If Parliament has the power to make a legally binding command, no matter what the subject matter of that command, then it is entirely possible that a direct conflict will arise between the duty to obey the law and the moral duty not to obey wicked laws. This conundrum was solved in earlier times by the social contract. If the sovereign failed to protect the people in the enjoyment of their basic liberties, then it breached its’ contract with its’ subjects, and the oppressive "law" could not be binding. Reliance was placed on unchanging common law, or on the Magna Carta, a true convenant between the sovereign and the subject. (1)
The Australian Parliament claims its rights and privileges from the Bill of Rights 1689 (1 Will & Mary sess 2 c 2 1689) which demonstrated that the victors in the Revolution had sought to protect, not to change, the fundamentals of the constitution. The framers of that document were simply declaring common law that already existed and would continue to exist.
The preamble to the bill reads:
"And thereupon the said Lords Spirituall and Temporal, and Commons....do in the first place (as their auncestors in like cases have usually done) for the vindicating and asserting their auncient rights and liberties declare....."
"Vindicating and Asserting?"
Clearly, the intent and true meaning was not to abolish their ancient fundamental rights and liberties for a pretended parliamentary sovereignty, which is generally believed and accepted today. They were vindicating and asserting them, and reclaiming them, from a despotic King James II who had grievously violated them.
Sir Robert Howard, a member of both Treby’s and Somer’s Rights Committee’s, said during the Bill of Rights debate: (1)
"Rights of the people had been confirmed by early Kings both before and after the Norman line began. Accordingly, the people have always had the same title to their liberties and properties that England’s Kings have unto their Crowns. The several Charters of the people’s rights, most particularly Magna Carta, were not grants from the King, but recognitions by the King of rights that have been reserved or that appertained unto us by common law and immemorial custom."
The intent throughout that debate was clear; - Reserved fundamental rights.
That great conservative, Burke, also extolled the virtues of the Declaration of Rights thus:
"In the 1st of William and Mary in the famous statute, called the Declaration of Right, the two houses utter not one syllable of a ‘right to frame a government for themselves.’ You will see that their whole care was to secure the religion, laws, and liberties, that had long been possessed, and had been lately endangered.......You will observe that from Magna Carta to the Declaration of Right, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate specially belonging to the people of this kingdom without any reference whatever to any other more general or prior right." (Burke, Reflections on the Revolution in France (Penguin ed) 118ff)(1)
Bentham said " Now and then, it is true, one error may be driven out, for a time, by an opposite error; one piece of nonsense by another piece of nonsense; but for barring the door effectually and forever against all error and all nonsense; there is nothing like the simple truth."
The doctrine of absolute parliamentary sovereignty is one such error and nonsense.
There are many that do not accept that Parliament was intended to have absolute supremacy or sovereignty from the Bill of Rights Act 1688.
If Parliament were supreme why is there a need to have the sovereign (Via the Governor) give royal assent to legislation before it can become law? Because that is one of the checks and balances to protect people from tyranny.
It is Article 9 of the Bill of Rights 1689 from which our Parliament claims its sovereignty. That article says; "That the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."
"...ought not to be..." Not "shall not" or "will not" - The intent, therefore, for an absolute sovereignty of Parliament is not evident. Elsewhere in the Bill of Rights, however, the intent is quite explicit in the terms - "is illegal" - "are illegal and pernicious" - "is against law" - "is unlawful". So the intent in the various articles is clear.
The Bill of Rights was preserving the supremacy of Parliament over any future Monarch who might feel disposed to assert the opposite. Parliament is sovereign in that sense, not in the sense that it is incapable of doing wrong or that no one may question the validity of an Act of Parliament.
Sir William Blackstone mentions the importance of the Bill of Rights and particularly clause 7:
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree and such as allowed by law. Which is also declared by the same statute [the Bill of Rights] and it is indeed a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and the laws are found insufficient to restrain the violence of oppression. William Blackstone, Commentaries on the Law of England (1765), Vol. 1, 144. (8)
Previous Parliaments decided to reconfirm the strong safeguard of Magna Carta, Bill of Rights and the Petition of Rights via the imperial Acts Applications act 1984. It is hard to see what authority there is to give those safeguards an extremely limited effect contrary to the plain meaning of words.
The right to trial by jury is inalienable. Parliament can't legislate the right out of existence
Quite clearly, there has been a modern-day perversion of the true meaning and intent of Magna Carta and the Bill of Rights. (1)
Surely the framers of the Bill of Rights did not intend to enshrine parliamentary superiority in clause 9 and allow subsequent parliaments to eliminate the freedoms given to the people in clause 7 of the Bill of Rights and clause 29 of the Magna Carta. After all the freedoms of Magna Carta preceded the existence of Parliament by several hundred years.
COMMON LAW
Your Honour I understand that the Common Law originated when King Alfred made the Law of God in the Bible and specifically the Ten Commandments the basic law of England. These state basic principles. (6)
The common law, which applies in this state, is the common law of England as it existed in 1836, as it was translated into this colony and as it has developed within this colony and state in the last 148 years.
It is stated in the CONFIRMATIO CARTARUM 1297 that
1 The Magna Carta is the common law and that
2 The Magna Carta is the supreme law. All other contrary law and judgments are void.
The common law is incorporated into and is not repealed by Statute Law.
Your Honour, rejecting common law is rejecting the Crown.
As far as Commonwealth legislation, section 80 of the Judiciary Act 1903 says "Common law to govern" and Part 1A of the Crimes Act 1914 says "Application of the common law". States as part of the Commonwealth are held to this also.
No Parliament has the power to extinguish the right to trial by Jury as it is an integral part of the Common law which was assumed by and controls the constitution.
Your Honour the State Government has abandoned Common Law.
Your Honour there are cases where Common law has been shown have a continued validity
In Stanbridge v Goss, in the Supreme Court of Queensland the defence that clause 9 of the Bill of Rights was valid was accepted.
The case of Plenty v Dillon in the High Court in 1991 relied on common law rights to repel trespassers and damages were awarded, of the order of one million dollars against the police.
In the matter of Brofo v Western Australia (1990) 93 ALR 207, there was much discussion of the Acts which bind the Crown.
Holding v Jennings (1979) VLR, records that the Victorian Supreme Court upheld Article 9 of the Bill of Rights of 1688
In the High Court matter of Television Company v ALP - with regard to the ban on political speeches just before an election the High Court upheld the common law right of free speech. (4)
I understand that Denver Beanland, when he was Attorney General did confirm the Bill of Rights was still applicable in Queensland.
Your Honour the issue of ENTRENCHMENT is an important one when considering the Magana Carta and subsequent enactments.
Entrenched Provisions are laws enacted by Parliament that may not be repealed or amended, or the affect of which may not be altered, by Parliament unless it follows a special, additional procedure, such as approval by the majority of electors at refrendum or approval by a two thirds majority in the Parliament. The entrenchment of a law reflects Parliaments intention to protect a law that it considers to be of special significance, by inhibiting a successor Parliament’s ability to amend the law through the normal law- making procedure.
The entrenchment of a law usually occurs by a substantive provision (the entrenched provision) being subjected to another provision (the entrenching provision) which states that the substantive provision may not be repealed or affected without observance of the special additional procedure.
To fully entrench a law, the entrenching provision must also must subject itself to the same special procedural requirement before it can be amended (that is the entrenching procedure entrenches itself.) When this occurs, the substantive provision is said to be "doubly entrenched" Legal, Constitutional and Administrative Review Committee report no 13, April 99 on the Consolidation of the Queensland Constitution- sec 2.3
According to Magna Carta, the rights have been granted forever. So something that has been granted forever can never become obsolete. The Rights in Magna Carta are entrenched by the final paragraph that says
"And we have granted unto them for us and our Heirs, that neither we, nor our Heirs shall procure or do anything whereby the Liberties in this Charter contained shall be infringed or broken; and if anything be procured by any person contrary to the premisses, it shall be had of no force nor effect"
Edward I 1297
Since neither Referendum nor Parliamentary majority allows this to be changed these rights are doubly entrenched.
Similarly Cap II of the Confirmatio Cartarum 1297 says that:-
" and we will, that if any judgement is given from henceforth contrary to the points of the charters aforesaid by the Justices, or by any other offices that hold plea before them against the points of the Charters, they shall be undone and holden for nought"
So the Confirmatio Cartarum further entrenches the rights granted in the Magna Carta.
The Bill of Rights 1688 is also doubly entrenched by the last paragraph that allows no method of alteration
"And bee it further declared and enacted by the Authoritie aforesaid That from and after this present Session of Parlyament noe Dispensation by Non obstante of or to any Statue or any part thereof shall be allowed but that the same shall be held void and of noe effect Except a Dispensation be allowed of in such Statue [and except in such Cases as shall be specially provided for by one or more Bill or Bills to be passed dureing this present session of Parlyament.]
William and Mary Prince and Princesse of Orange
Parts of Magna Carta (ch29), the Petition of Right are reconfirmed by Schedule 1 of the Imperial Acts Applications act 1984. However long before the Imperial Act Application Act all citizens of Australia had the rights to the common law due to their being British citizens under the crown. Magna Carta is part of that common law.
The sealing of Magna Carta and the enactment of the Bill of Rights Act 1688 created an obligation between the three branches of government- the legislature, the executive and the courts- and the citizenry analogous to a fiduciary duty. These three branches cannot prefer their own rights to those of the rights of citizens in a representative democracy.
Just because Australia became independent does not mean that the full common law does not apply. If it does then that also means that should Australia illegally become a republic in November then all law previously applying no longer applies.
MAGNA CARTA
The Magna Carta marked an agreement negotiated between King Johns’ government and his subjects. It concerns the limits and responsibilities of Government and the legal rights of free citizens. It contained the pledge that no free man should have his rights removed without the due process of law and the judgement of his peers. It is taken to be the foundation of the liberties of the citizen in the English-speaking world.
"Here is a law which is above the King and which even he must not break. This reaffirmation of a supreme law and its expression in a general charter is the great work of Magna Carta; and this alone justifies the respect in which men have held it. --Winston Churchill, 1956
Magna Carta has been re-affirmed in various ways some 38 times since it was first enacted in 1215.
Chapter 29 of the 1297 charter says:
"No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled or any other wise destroyed ; nor will we not pass upon him, nor condemn him, but by lawful judgement of his peers, or by the law of the land. We will sell to no man, We will not deny or defer to any man either justice or right."
Edward 1 (1297) Magna Carta
The law of the land does not just mean enacted statute law. It involves the high principles of the rule of law, due process of law, constitutional law, the rules of natural justice.
That fundamental principle is not repeated in the Australian Constitution, but it has been held by the courts that it is part of our inherited Constitutional law - see ex parte Walsh v Johnson (1925)37 CLR 79. There is certainly a presumption in favour of liberty. (4)
Let’s analyse and define Magna Carta in particular the words, justice or right embodied in the final sentence of Chapter 29. (1)
The Oxford Dictionary of Law (1990) defines justice as:
Justice: " A moral ideal that the law seeks to uphold in the protection of rights and the punishment of wrongs. Justice is not synonymous with law - it is possible for a law to be called unjust. However, English law closely identifies with justice and the word is frequently used in the legal system." (1)
So, if it is possible for the law of the land to be unjust then the Courts may be restricted to exactly what the law says even though that law may be an unjust law because the courts must exercise the will of the law makers. (i.e. parliament) Therefore an unjust law may still be a valid law. (1)
But there are other words in that same sentence and that is the words "or right." So "justice or right." (1)
Or denotes an alternative and right is defined as:
Right: 1. Title to or an interest in any property. 2. Any other interest or privilege recognised and protected by law." Those are plain words with plain meanings. (1)
Therefore, there is an alternative. If a valid law can be unjust then your interests and privileges embodied in Magna Carta are recognised and protected by the word "right". (1)
So the lawful judgement of your peers, also in Magna Carta, may hold that while the law may be an unjust law, we are still entitled to be protected by right. (1)
Moreover, can there ever be an adequate justification for the state depriving any person of their constitutional rights?
Lord Robin Cooke formerly President of the New Zealand Court of Appeal, in an extra-judicial paper entitled "Fundamentals" (NZLJ (1988) 164,165) says:
"On the other hand, if honesty compels one to admit that the concept of a free democracy must carry with it some limitation on legislative power, however generous, the focus of debate must shift. Then it becomes a matter of identifying the rights and freedoms that are implicit in the concept. They may be almost as few as they are vital......One may have to accept that working out truly fundamental rights and duties is ultimately an inescapable judicial responsibility." Indeed, the United Nations Universal Declaration of Human Rights declares in the preamble:
"Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human right should be protected by the rule of law."
".....the rule of law." Not statutory law, Parliamentary sovereignty or otherwise but, "....the rule of law. i.e. The Courts. Furthermore, the Declaration expressly speaks of the fundamental human right. And that is exactly what this court case is about - The Rule of Law, fundamental human rights, and the Royal Charter of Magna Carta taking precedence over a pretended Parliamentary sovereignty. (1)
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