High Court of Australia Transcripts

Essenberg v The Queen B12/2002 (25 June 2003)

Brisbane No B12 of 2002

B e t w e e n -

MARTIN ESSENBERG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 12.13 PM

Copyright in the High Court of Australia

MR A.L. PRICE, QC: May it please the Court, I appear with my learned friend, MR D.B. SHARP, for the applicant. (instructed by the applicant)

MR R.V. HANSON, QC: May it please the Court, I appear for the respondent. (instructed by Queensland Police Service Solicitor)

GLEESON CJ: Yes, Mr Price.

MR PRICE: May it please your Honours. Mr Essenberg, my client, might be described as an admirable, if quixotic, busybody, but he seeks for his benefit, and incidentally, I submit, for the benefit of us all, to have fully examined by your Honours' Court questions of right and freedom and the Constitution of Australia.

First, was he denied, in relation to the charge against him his right to trial by jury, which in turn requires examination of the legislation which has been treated by the magistrate on 5 October 2000, by Judge Robertson on 31 May 2001 and by the Queensland Court of Appeal on 31 January last year, as not according to him that right.

The importance of that right has been emphasised in many places. Blackstone, more than 200 years ago, referred to inroads upon the right to trial by jury as:

fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent -

of denial of the right to trial by jury -

may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern."

That has been quoted in your Honours' Court in a case called Kingswell v The Queen in 1985.

It might be said, impatiently, but not, surely in your Honours' Court, that for some matters trial by jury is an unnecessary trouble and may be validly restricted by the law in Australia, in Queensland as in England, but my client's submission is that that was not the position here. The restriction upon trial by jury found in the courts below was not, in our submission, in accordance with the law.

GLEESON CJ: Mr Price, where can we conveniently find the statutory provision that your client was said to have contravened?

MR PRICE: What my client says about that is set out in our - - -

GLEESON CJ: It is section 50 of the Weapons Act, but I would just like to read section 50 of the Weapons Act.

MR PRICE: Your Honour, what has happened is, I am sorry to say, that the Weapons Act of 1990 has been quoted in my summary argument without reference to its amendment later, and I apologise for that. The relevant provisions I think I can take your Honours to quickly.

GLEESON CJ: I see the definition of "weapon" is that:

"weapon" means -

(a) a firearm; or

(b) another prescribed thing - - -

MR PRICE: Yes. Your Honour, if your Honour has the Weapons Act - - -

GLEESON CJ: What is the penalty for contravention of the section?

MR PRICE: I am not sure my extracts from it are entirely satisfactory but the particular provisions that matter - does your Honour have the extracted one that I - - -

GLEESON CJ: Yes, we have that. They have summary offences in the United Kingdom, do they not, Mr Price?

MR PRICE: Yes.

GLEESON CJ: I mean, you have summary offences in the United Kingdom, Mr Price.

MR PRICE: Yes. What we say about that is rather fully examined at the end of our summary of argument. Your Honour has the summary of argument which we have substituted, as it were, for the original summary, which makes things easier. If your Honours look at the particular provisions in the Act which appear to matter, you start in the extract with section 3, and I am getting there a bit slowly but section 3 deals with - the way in which the Act works is indicated in sections 3 and 4. Yes, after a number of definitions, if you go to page 14, the object of this Act is to be achieved for firearms by:

(a) prohibiting the possession and use of all automatic and self-loading rifles . . . except in special circumstances; and

(b) establishing an integrated licensing and registration scheme for all firearms; and

(c) requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm -

In other words, if there is and we say there is, certainly as declared in the Bill of Rights, if there is a right to possess firearms - - -

GLEESON CJ: A right in Protestants to possess firearms actually?

MR PRICE: Yes.

GLEESON CJ: Is your client a Protestant?

MR PRICE: Your Honour, I attempt to deal with that in my summary of argument by saying this. There is no need to worry, in our respectful submission, about the position. This comes in the section of my summary beginning with paragraph 10, where we cite first of all the Bill of Rights, saying:

"That subjects which are Protestants may have arms for their defence suitable to their conditions as allowed by law".

And I go on to say, rather grandly your Honours might think, nothing turns on the words "which are Protestants" because in 1689 in England that was virtually everyone who had been denied.

GLEESON CJ: A recusant Catholic would not be the possessor of that right.

MR PRICE: Yes, and it was the restriction, the fear in 1689, that the adherence of the absolutist Stuarts Catholics largely, that the fear that they alone would have the right to bear arms that caused this ringing declaration of a right to bear arms to be related, yes, to Protestants, but in the particular circumstances of the time and applying in Latin, which in England we are not supposed to use in court any more, contemporanea expositio, we submit that that should be interpreted as declaring the right of all subjects to bear arms, to have arms for their defence suitable to their conditions as allowed by law.

The words "as allowed by law" may have been no more than declaratory, we say. It may be that those words cause us some difficulty in this, to this extent, that it means probably as allowed by law from time to time enacted, but as allowed by law from time to time enacted in relation to a matter of such fundamental right ought to be understood at least as requiring this, that the right shall not be reduced to a mere privilege, and secondly, that any reduction in the right should expressly relinquish, revoke, abrogate, amend the right, and without that, in other words, mere implication, will not do.

What we go on to say, continuing for this purpose in the same section of my summary, that there has been no attempt in the legislation, the Weapons Act, to say expressly that Article 7 of the Bill of Rights, so far as necessary to give effect to the legislation, is repealed or modified. The reality, we submit, is that the legislation plainly exceeds what is reasonably necessary to control or regulate the possession of firearms. It is here that the principle, and we invoke the principle or concept of proportionality is relevant.

The Weapons Act, we say, 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". The Weapons Act, when one examines the relevant sections, confirms firearm possession and use as a privilege that is conditional on the overriding need to ensure public safety and indicates - it is actually in section 4 of the Weapons Act and not section 3:

The object of this Act . . .

(c) requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the -

licence. When one looks further in the Act to what are the circumstances in which the Act will operate, one turns to section 11 - I do not know why my summary refers to section 12 first - but it is section 11:

The following are reasons for possession of a weapon-

(a) sports or target shooting;

(b) recreational shooting;

(c) an occupational requirement, including an occupational requirement for rural purposes;

(d) collection by collector of weapons;

(e) another reason prescribed under a regulation.

What is noticeable there, referring back to the Bill of Rights, is this, 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, certainly not for that person's defence. And that, we say, is this. Too, our respectful submissions for exploration, as we submit, in full discussion and argument in your Honours' Court goes to this at this point in the argument. Mere privilege is substituted for what, according to the Bill of Rights, is a right.

Secondly, the specific right, a right for personal protection, simply does not exist in the Weapons Act itself. Personal protection is not one of the matters for which there is to be a licence and this is really a denial of the right to bear arms. It is not part of Mr Essenberg's case that there cannot be regulation of the right to bear arms. Regulation may easily be understood. For example, if I have the right to have arms for my protection, as the Bill of Rights says, and it has not been expressly abrogated, the right may be regulated in various ways. If somebody pronounces me an irresponsible schizophrenic, then that would be a reason for regulating my right, perhaps excluding my right, to have arms for my protection because I am not a suitable person.

Equally, admirable a person as I may be, psychologically stable and everything else, I may have to comply with rules about the sort of cabinet and security in which the guns are kept and the ammunition is kept. I may even be required to record carefully my purchases of ammunition and my use of the ammunition. But though that is regulating a right, here we have, when we look at the Bill of Rights, a denial of the right that that resoundingly asserts at a critical time in the history of England and a matter of the greatest importance in the history of the common law.

The proposition that the Commissioner, a member of the Executive, part of the Executive, may issue a licence in respect of an application or refuse any such application emphasises the way in which the right is denied, and for it is substituted or it is converted into a discretionary privilege exercisable by a member of the Executive. The challenge to that reduction in what is a fundamental right is at the heart of Mr Essenberg's objection to the way in which his case has been treated from the beginning.

Your Honour, I appreciate that my time is somewhat restricted so I ought not to fail to deal with the other aspects of the case. The incidental effect of our application and our desire to have Mr Essenberg's case heard in the Court is that incidentally to the two fundamental matters already mentioned, there are aspects about the Constitution of this country, of the law of Australia and the law of Queensland and the way in which law-making is properly exercised which are important and fundamental questions about the Constitution of Australia and law-making.

GLEESON CJ: Yes, we have read your written submissions on - - -

MR PRICE: And they merit the fullest examination by your Honours' Court and if I may say so - I see the red light is there - your Honours' Court, because as Mr Essenberg believes, by coming here with my assistance to seek leave to have the matter fully examined in your Honours' Court, your Honours' Court is rightly regarded as the vigilant guardian of the law and of the Constitution, and indeed, of the common law, which for centuries has been the great protector of the citizen against overweening, and at any rate if not overweening, constantly increasing power in the Executive over all our lives and liberties and freedoms.

GLEESON CJ: Thank you, Mr Price.

MR PRICE: Your Honour, the red light is there and I should, deferentially, sit down.

GLEESON CJ: Mr Hanson, what is the position in relation to costs? There are some inconsistencies in documents we have received.

MR HANSON: There is, your Honours. There was an outline of argument put in on my side at an earlier stage when costs were not sought. The applicant has supplied, I think, three outlines of argument and I think the last two do ask for costs.

GLEESON CJ: What was done in the Court of Appeal about that matter?

MR HANSON: No costs were sought by the Crown in the Court of Appeal.

GLEESON CJ: Because it is a criminal case, presumably.

MR HANSON: It was a quasi-criminal case. I mean it is called "The Queen" and I do not know how that title got there.

GLEESON CJ: All right, thank you, Mr Hanson.

MR HANSON: But we do seek costs.

GLEESON CJ: Yes, we do not need to hear you, Mr Hanson.

This is an application for special leave to appeal against a decision of the Court of Appeal of Queensland refusing leave to appeal to that court from a decision of the District Court. We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

MR HANSON: I seek costs, your Honour.

GLEESON CJ: What do you say about that, Mr Price?

MR SHARP: I would not seek to address on that. We would oppose costs. It is a critical matter.....

GLEESON CJ: Have you anything you want to add, Mr Hanson? We are disinclined to make an order for costs in a criminal case.

MR HANSON: Only to point out to your Honours that it was a summary prosecution. The real party for whom I appear is Constable Shields from Kingaroy and the costs of this fall back on the budget of the Police Commissioner.

GLEESON CJ: Yes, we will make no order for costs.

We will adjourn for a short time to reconstitute.

AT 12.37 PM THE MATTER WAS CONCLUDED