This is a definitive ruling on the position of these documents and completely vindicates the line I've consistently taken with people who presume "the law" is some kind of guardian of individual rights and liberty: it most certainly is not. Those who forget lessons of history would do well to note McHugh's apparently flippant remark:
"As it is said, some authorities could legislate to have every blue-eyed baby killed if it wanted to."
I think McHugh is clearly wrong here. Not only do we have Magna Carta and the Bill of Rights / Claim of Right Act to consider, we must also consider the Declaration of Arbroath and the Treaty of Union. In which case we see that it is not parliament, or the monarch, that is sovereign but it is the people that are sovereign and they have ancient and indubitable rights not dependent on government.
They have rights who dare maintain them. I wonder when a sufficient number of people will wake up to this and actually do something about it? Not until an economic downturn I guess …
IN THE HIGH COURT OF AUSTRALIA Office of the Registry Brisbane Nos B54 and B55 of 1999
B e t w e e n -
Applications for special leave to appeal
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON THURSDAY, 22 JUNE 2000, AT 10.29 AM
Copyright in the High Court of Australia
MR M. ESSENBERG appeared in person.
MS L.J. CLARE: May it please the Court, I appear for the respondent in this matter. (Instructed by the Director of Public Prosecutions (Queensland).)
McHUGH J: Yes, Mr Essenberg. You have two matters, but they seem to us to really raise the same points and therefore we give you 20 minutes to put your oral argument.
MR ESSENBERG: Thank you, your Honour. I am seeking relief from the orders of McMurdo P, McPherson JA and Chesterman J in the Brisbane Court of Appeal on 23 August 1999, that of Boyce DCJ in the District Court in Kingaroy on 22 March 1999, a Mr Lebsanft ASM of the Magistrates Court in Brisbane on 2 September 1998 and Smith SM in the Brisbane Magistrates Court on 11 August 1998 under section 50 of the Weapons Act 1990 of Queensland. I come to this Court under the Constitution of Australia 9.1 asking this question which I trust you will answer for me. Will the High Court decline to hear this matter any further, as it is an appeal court in this instance, and either remit the matter back at common law under section 44 of the Judiciary Act 1903 to the District Court at Kingaroy or hear it at common law itself at Kingaroy for hearings before a jury of my local community, to establish the fact of whether the Weapons Act 1990 is in truth an Act for the peace, order and good government of Queensland or is an Act discriminating against country people who need guns for security of their homes and for vermin and for city people who may have no need for a gun at all? A declaratory judgment on the validity of the statute in question under the Weapons Act 1990 of Queensland is sought in addition to the orders sought previously. I have never had a proper trial of the issues I raised by taking air rifles and non-functional .22 bolt action rifles into a public place to test the gun laws imposed on Australia after the Port Arthur massacre. In the hysteria that followed, politicians passed gun laws all over Australia and I honestly believe they are not legal or within the legal competence of the Parliaments that passed them. They offend a number of laws which were in place when the referendum was held to establish this Court and the repeal of those laws was outside the competence of Parliament when the referendum was passed in 1899. I honestly believe they still are. You have the text of the Queensland Court of Appeal decision, page 53 of the application book. They deny the existence, in effect, of the Imperial Acts Application Act 1984. They admit I asked for their application. I feel betrayed by them. An Act is an Act, is it not? The oath which allows a judge to be entrusted with a court has not been upheld.
McHUGH J: But is not the problem you face that the Magna Carta and the Bill of Rights of 1688 are not documents binding on Australian legislatures in the way the Constitution is binding on those legislatures? Any legislature acting within the powers allotted to it by the Constitution is entitled to legislate in total disregard of the Magna Carta and the Bill of Rights, as is the United Kingdom Parliament. Take the situation in Northern Ireland. They abolished trial by jury in Northern Ireland. If you go back to Magna Carta which, I suppose, is really the heart of your argument, it is really more a statement of political ideals. They are not constitutional documents in the sense that the Australian Constitution and the United States Constitution are. That is the problem which you have. They are political ideals which most citizens would hope that Parliaments would follow but if Parliaments do not follow them, the remedy is the ballot box because we do not have a Bill of Rights in this country. If you were in the United States, you would have some arguments about whether the Weapons Act 1990 of Queensland was wholly or partly invalid, but we do not have a Bill of Rights in this country.
MR ESSENBERG: Your Honours, I believe we have the British Bill of Rights, as I have indicated in my documents. I am not really competent to argue because …
McHUGH J: I understand that and persons who have not had full legal training often think of Magna Carta and the Bill of Rights as fundamental documents which control governments, but they do not. After all, Magna Carta was the result of an agreement between the barons and King John and the barons themselves had their own courts, had their own armies, they, in effect, levied what we would call taxes today and they were concerned to protect themselves against the growth of the central power of the royal government, the central government, and that is how Magna Carta came into existence, but modern Parliament did not arise until late in the 17th century and the early struggle was between the King and the barons. We are dealing now with the question of the legislature. I mean, Parliament established its authority over the monarch after the struggles which led to the execution of Charles I and the flight from the kingdom of James II in 1688. But Parliament - some people would regard it as regrettable - can, in effect, do what it likes. As it is said, some authorities could legislate to have every blue-eyed baby killed if it wanted to.
MR ESSENBERG: The Bill of Rights of 1688, I understand, did help establish Parliament in its position, that was in section 9, and also in section 7 it gave the people the right to weapons for self-defence and in section 11, I understand, it also reinforced the right to trial by jury.
McHUGH J: I know, but they were not declarations of rights that could not be altered by Parliament and that was seen almost immediately, because by 1776 at the time of the establishment of the American Constitution, there were over 100 summary offences in England which could be dealt with by lay Justices of the Peace, not magistrates, and they involved sometimes floggings as punishment. So, trial by jury has simply never been a universal right. It is open to legislatures - and they have for 200 or 300 years - to restrict trial by jury, and in this particular case the Weapons Act provides for trial by magistrate.
MR ESSENBERG: If an error was made in the past, does it mean we should perpetuate that error?
McHUGH J: No, it is not a question of an error; it is a question as to what was the power. That is the point, that the Magna Carta nor the Bill of Rights were never intended to be anything more than declarations of political principle, which it was expected Parliaments would observe. If they do not observe, it is a matter for the constituents at the ballot box.
MR ESSENBERG: But are we not ruled by law rather than by power?
McHUGH J: Well, we are ruled by law and law is the law of Parliament; it is called legal positivism. It is the law laid down. This Court makes decisions and, unless they are constitutional decisions, the Parliament can overrule them and often does. We lay down a law, Parliament can change it. It is the democratic right of the people to do it through their parliamentary representatives. So, what you are faced with is the Queensland Parliament enacting this legislation, which you obviously think is a bad piece of legislation and infringement with your rights and which other members of the community think is a good thing, that is something to be debated at the ballot box, but it is not a constitutional matter, as it is in the United States, of course, where their written Constitution gives the right to bear arms and what that means is …
GUMMOW J: Well, it is said to.
McHUGH J: It is said to, yes.
MR ESSENBERG: Your Honour, it seems sometimes that the elites are no longer obeying certain things. On a different issue, there is currently a number of petitions going around to have the GST changed. Dorothy Pratt, my member of Parliament, the milk spiller, recently wrote letters to the Governor-General about these petitions asking how many petitioners were required, and the answer came back that, despite a section in the Constitution requiring him to notice these things, apparently the convention is that he will always take the advice of the government, and it seems to me there is no one of the people who is in a position to enforce the hierarchy, even via election, into doing what appears to be the law. If you cannot enforce the Governor-General, well, who can you enforce?
McHUGH J: Well, the Governor-General has his own powers, but they rest on convention to a large extent, as you are no doubt aware, and if you remember in 1975 there were arguments as to whether or not the then Governor-General was in breach of conventions, that he should only act on the advice of his Ministers, but in the end this Court declares whether or not legislation is constitutional or unconstitutional and we have never hesitated in an appropriate case to declare something beyond the power of Parliament. We have declared many provisions in Acts of State and Federal Parliaments to be constitutionally invalid, but there is nothing in the Constitution, so it seems to me, that would authorise us to say that the Weapons Act is invalid, wholly or partly. It is within the power of the Queensland Parliament and the remedy is for you to change your government, although I am not even sure it was this current government - it was an earlier government, that passed the legislation, was it not, I am not sure.
MR ESSENBERG: Yes, it was the National Party government. May I just continue on with this?
McHUGH J: Certainly.
MR ESSENBERG: Thank you very much. It is submitted that the matter is properly before the Court as a constitutional cause in enlivening section 76(i) and 77(iii) of the Constitution as a matter arising and involving its interpretation under the jurisdiction of section 35(1)(a)(b), 35(2) and 35A, 35A, 40(2)(b) and 43 of the Judiciary Act 1903 , Commonwealth. On 14 May 1900, just over 100 years ago, Joseph Chamberlain introduced a bill into the High Court of Parliament in Great Britain for registration unaltered of an Act recording the proceedings in a referendum held in the five colonies of Australia federating themselves into this Commonwealth.
I submitted the text of this speech to the Court in the documents I handed in. It is evidenced that the Constitution is not an ordering Act, but is an Act passed by referendum and merely registered in the Parliament of England as an Act by the Common House. That referendum created the Supreme Court of Australia, to be called the High Court. The referendum prohibited Parliament from ever interfering with the Constitution of the High Court in section 77(i) of it, and until the people as a whole changed that Constitution, that is the law. This Court has the only total jurisdiction of any court in Australia; it cannot be limited. The Parliament of the Commonwealth has exclusive power to legislate only in the very narrow confines of section 52 of the Constitution. It does not have exclusive power to legislate under section 51 and the separate, but equal, common law making power is not infringed at all by the will of the people as expressed in the Commonwealth of Australia Constitution Act 1900. The High Court may make law.
The Parliament of the Commonwealth is a creation of the people by referendum and an Australian Supreme Court, referred to by Joseph Chamberlain on page 118 of the report of his speech, was not to be a statutory court, but a common law court, with original jurisdiction at common law to sit with a jury anywhere in Australia and its services were required to resolve disputes about the Constitution. The insertion of the words "for peace, order and good government" in section 51 of the Constitution and section 2 of the Constitution Act 1867 of Queensland means that if a citizen member of the democracy believes on grounds that are supportable that a law is not good government for him, the High Court has a duty to empanel 12 electors from his local community …
GUMMOW J: Now these words, "for peace, order and good government" are words of expansion, not contraction, you see - they are not words of limitation.
McHUGH J: They do not limit the powers. In fact they arguably have no legal effect whatever, and that is the doctrine of this Court. We do not make a decision as to whether the law is for the peace, for the order, for the good government. It is assumed that if Parliament makes it, it is, and the real question is, is it a law with the same respect to trade and commerce in other countries or whatever the relevant law of Parliament relies on, but this Court has never attempted to say that a law, on the subject of trade and commerce, for example, is not "for peace, order and good government". It is, in effect, a parliamentary expression rather than a legal expression. It does not limit Parliament's power; it is said to expand them.
MR ESSENBERG: I am not really sure I understand that.
McHUGH J: No.
MR ESSENBERG: I see. I have an honest claim of right under the Criminal Code Act 1899 to rely upon the Criminal Code section 92 to say that I do not have to submit to the jurisdiction of a magistrate in this matter, it must be tried by jury. I submit my claim of right is reasonable based as it is upon the Imperial Acts Application Act 1984 (1984) Schedule 1, (1297) 25 Edward I Chapter 29 and (1688) 11 Will & Mary Bill of Rights Sess 2 Chapter 2 Bill of Rights. These laws were known to the participants at the referendum creating this Court. The persons who voted to create the Supreme Court expected this Court to protect them from the tyranny of parliaments as common law courts have done since 1297. Party politics have corrupted parliaments and you, the High Court, are our common law guardian. I rely on the words of William Penn in 1670 as my own words.
In Walden v Hensler the High Court appears to uphold section 22 for the benefit of Mr Walden. In 1999 in Yanner v Eaton you have declared the law again, and while not mentioning section 22 Criminal Code you have held a magistrate's right to recognise an honest claim of right. In the case of Yanner the claim of right arises over the Native Title Act; mine arises under the Constitution, an international covenant on civil and political rights and the Imperial Acts Application Acts . My claim of right is to be not tried by a public servant appointed by the governor, but to a jury of my peers as I am supposed to be guaranteed by the Imperial Acts Application Acts 1984. I simply ask to the treated in the same manner as Mr Yanner.
In paragraph 63 Justice Gummow chronicles where Mr Yanner made his honest claim of right to the magistrate. The magistrate accepted the honest claim of right as a defence and discharged Mr Yanner. This is chronicled in paragraph 64. The State of Queensland constituted as a Court of Appeal was wrong not to accept its own statute. In my case they should obey section 92 of the Criminal Code and not allow a magistrate or another person to make an order prejudicial to me, until the question of fact of whether the Weapons Act 1990 discriminates against me is decided by a jury, unless I consent. Aboriginal Australians get a good shake before the Magistrate's Court. It seems, in my experience, that non-Aboriginal ones do not. It is time that the High Court extended the same justice to everyone.
The High Court holds the Constitution on trust for the voters who created it as a Supreme Court. Each has an unfettered right to come to the Court for a redress. Its jurisdiction is unfettered and unfetterable. I am but one of those voters. The word "Supreme Court" had a meaning on 14 May 1900, and the meaning of those words was clear to each and every voter who created this Supreme Court. In original jurisdiction it meant a court with a judge and 12 jury persons; nothing more and nothing less. 518,500 Queenslanders voted to create this Court and of those 377,000 voted for it to be the Supreme Court over all others, as put by them in the referendum.
This appeal to you is an appeal to you to carry out the wishes of those 377,000 pioneer Queenslanders who left this legacy of the law to rule us upon trust 100 years ago. Between elections, parliaments think they have unfettered power to do whatever the controlling party decides should be done and that they should ride rough-shod over the people who delegate law-making powers to them. Parliament think they are supreme, but by the words "Supreme Court" in section 71 Constitution, the people have reserved the power to review Acts of Parliament which affect a voters vital interest. If a court is supreme it is not inferior. All courts below are inferior and the High Court of Parliament created by section 49 of the Constitution has power and is subject to the Constitution to regulate its own affairs. The Constitution itself, by creating the Supreme Court, created a Supreme Court over the Parliament, but the only legal and moral way that Court can make law against elected delegates is with 12 electors of the local community who find the facts. When it does so it is trying an issue to see whether the Parliament has breached its trust as delegates.
When a High Court of Australia does its constitutional job, it will be held throughout the land in highest regard whatsoever. That is how the common law was made since 1215 and that is the way we decided it in 1899, to continue the common law tradition we inherited from English colonists. We did not intend that once every three years we could review Parliament. It was the intent that Parliament could be reviewed at any time it breached the trust we had given it, but only by a jury and three judges.
Queensland has passed legislation to confirm we are all sovereign citizens, the Anti-Discrimination Act 1991. It is honoured by Queensland courts by disregarding it. As paid public servants, magistrates and the other District Court judges and Supreme Court judges have served their master, the State of Queensland, and not the citizen who has come to them for justice. Since Angelo Vasta was removed from office, every judge must fear for his seat on the bench. Angelo Vasta was not tried in any court and not found …
McHUGH J: Your time is up, Mr Essenberg.
MR ESSENBERG: My apologies.
McHUGH J: Yes, well, finish your sentence.
MR ESSENBERG: I have lost it. Could I perhaps present this document and the Weapons Act 1990 , and some pieces I missed on the previous documents.
McHUGH J: Well, we have read the material which you have presented. In accordance with the Rules, that is what had to be served on the respondent and I do not think any useful purpose is served by it, Mr Essenberg. Thank you very much.
The Court need not hear you, Ms Clare.
The applicant seeks special leave to appeal against an order of the Court of Appeal of Queensland refusing leave to appeal against an order of the District Court dismissing his appeals against convictions under the Weapons Act (Qld). The applicant contends that Magna Carta gave him the right to trial by jury in respect of these offences and that the requirements imposed by the Weapons Act to have a licence are invalid, being contrary to the Bill of Rights of 1688.
In the Court of Appeal, Mr Justice Chesterman said that the applications for leave to appeal to that court were totally without merit. Legally and constitutionally, that is so.
Magna Carta and the Bill of Rights are not documents binding on Australian legislatures in the way that the Constitution is binding on them. Any legislature acting within the powers allotted to it by the Constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or, for that matter, the United Kingdom. Nor do they limit the powers of the legislatures of Australia or the United Kingdom. That being so, an appeal would have no prospects of success. For that reason, special leave to appeal is refused.
Thank you, Mr Essenberg.
Call the next matter of Amos.
AT 10.51 AM THE MATTER WAS CONCLUDED