Essenberg v Shields
25 January 2001
Supplementary Submission by Martin Essenberg
To the Nanango Magistrates Court
Invalidity of the Australia Act
I refer to Section 225 (the Australia Act) of my submission to the Nanango Magistrates
Court on 14 December 2000
I submit a copy of Section 53 of the Queensland Constitution
I submit the following extract out of Hansard 26 September 1985, Queensland- the
speech by Sir Joh Bjelke Petersen on the AUSTRALIA ACTS (REQUEST) BILL
I submit a copy of UK Secretary of State for the Foreign and Commonwealth
Office, R v. [2000] WCA 78 (3rd November, 2000) Case No: CO/3775/98
I submit an article - National Gun laws and Constitutional Matters and the
prerogative of the Crown.
In this submission I would like to bring to the courts attention certain provisions of the
Australia Act(Requests) Bill of Queensland and the subsequent effect on the position of
the State Governor and the validity of legislation subsequent to 1987 in Queensland.
The intent of the Australia Act (Requests) Bill as derived from Sir Johs speech was to
sever UK Parliamentary jurisdiction over Queensland and by doing so dissemble the
crown in right of her Majesty. The use of parliamentary material to elucidate the intent
of legislation is sanctioned in Pepper V Hart
The intent of the Australia Act had a two-fold effect.
1) Sever the jurisdiction of her Majesties UK parliament thus dissembling the
influence of Her Majesties Crown over Australia yet some how vest purported
residual power of Her Majesty in the State Governors.
2) The two are non sequitur for the severance of legislative jurisdictional ties with Her
Majesties Parliament of the UK and all justiciable references thereby in so far as the
Privy Council’s position effectively empties any representation of Her Majesties
government in Australia. The States cannot have it both ways- they cannot claim to
be independent sovereign entities under the Australia Act and yet remain part
Colonies for the Convenience of claiming residual Vice –Regal power by their
Governors: Vis “residual executive powers of the UK government with respect to
the states will be terminated” Speech of Sir Joh
3) The Governors cannot thereafter claim to be representatives of a colonial power for
that is the entirety of their role. They were and are not representatives in their own
right or in right of the State, for the State executive post Australia Act is no longer
the Crown.
What mechanism is therefore left to vest the State Governors with residual vice –regal
power? None but a fiction empty of any substantive law.
In his speech Sir Joh says “A major change to be effected by the Australia Acts
concerns State Governors. Except for the power of appointment and dismissal of State
Governors, Governors will be vested with all of the Queen’s powers and functions in
respect of the States. Her Majesty will, however, be able to exercise any of those
powers and functions when she is personally present in the State”.
He also says that “Subclause (5) removes section 11B of the Constitution Acts
(Queensland) its references to instructions to the Governor from the Privy Council or a
Secretary of State in the United Kingdom. The instructions that were contemplated by
section 11B concerned the reservation of Bills, and clause 9 of these Australia Acts
ensures that there will in future be no need for, or possibility of, reservation. The other
provisions of subclause (3) remove further references to the signet.
Subclause (4) makes a purely consequential amendment to section 14 of the
Constitution Acts, in view of the amendment of section 11B”.
The Governors position being subject to change as the Queens representative is caught
by section 53 of the Queensland Constitution.
Certain Measures to be supported by referendum
In Section 53 the Queensland Constitution states: 53(1) a Bill that expressly or impliedly provides for the abolition of or alteration of the
office of the governor, or that expressly or impliedly in any way affects any sections of
this act namely
Sections 1,2,2A,11,11B,14: and
This section 53
Shall not be presented for assent by or in the name of the Queen unless it has been first
approved by the electors in accordance with this section and a bill so assented to
consequent upon its presentation in contravention of this sub-section shall be of no
effect as an act
Section 53 expressly provides protection to the office of Governor, it even uses the
words "in any way". Sec 53 specifically protects any change to section 11 Office of
Governor. The Queensland Constitution states in Section 11 b, Governor to conform
to instructions, that the Governor cannot give assent to Bills which are repugnant to
the Queen’s Instructions and those instructions are where our Constitutional Protections
are formally entrenched.
The validity of the Australia Act of Queensland thus turns upon the observation and
compliance with section 53 of the Queensland Constitution Act.
There was no compliance by the Queensland government of the day, not having
submitted the Australia Act (Requests) Act accordingly to referendum as required by
law thereby rendering it void ab initio.
On the point of observation of due process Sir Joh’s Speech is quite lucid vis: By this
unique legislative means, it has been possible to resolve the legal and political
difficulties inherent in the historic step we are taking.
The Governor having been reduced to the level of a State commissioner as an
intended outcome of the Australia Act for the purpose of fulfilling legislative format
points to the nub of State executive intent in direct confrontation with the rule of
law.
To Quote Lord Justice Laws in an analogous case “
here lies the real issues in the
case. I will deal first with (the) submission that a Colonial Legislature, enjoying power
to make laws for the peace, order, and good Government of the territory where it
possesses jurisdiction is by our law not the agent or delegate of the body which created
it... but this submission has no teeth unless it is intended to persuade.... that the
Commissioner may legislate absolutely as he chooses. Such an argument would of
necessity suggest that an (legislation) is valid irrespective of the terms of (any prior
enabling constraints)... so understood the submission merely invites our entry into a
barbarous world where there is no rule of law; the commissioner would be above the
law...” Secretary of State for the Foreign and Commonwealth Office, R v. [2000] EWCA 78 (3rd
November, 2000)
He continues, having cited Burrah (1878) 3 app 889
Here then it was plainly accepted that a legislature created by a measure passed by a
body, which is legally prior to it, must act within the confines of the power thereby
conferred. With great respect I would say nothing could be more elementary ... there
is... a risk of some obfuscation arising from descriptions of bodies in the commissioners
position as a legislature, even a sovereign legislature. Certainly he legislates, but he
does so only within the powers conferred upon him by a higher authority. This
argument that the commissioner (Governor) is not the agent or the delegate of the
Queen is wholly bloodless.
And further: “neither an appeal to those dicta which assert that a colonial legislature is
neither an agent nor delegate of the imperial parliament (or the Queen in Council) nor
any reliance on the Colonial laws of Validity Act can suffice to enlarge the power of the
Commissioner (Governor) to make laws beyond what (a true construction of the
enabling act allows) However broad the power in point of theory if the chosen last is
(for our purposes is the Queensland Constitution Act) the boot can be no bigger”.
In other words there can be no legal basis for positivist expansionism.
It follows thereby that the assent to in reference to this particular matter –the Weapons
act of Queensland- by a government functionary, whose legal capacity is reduced to
that of titular identity, cannot lawfully complete the process of ANY legislation – which
remain at law un-assented and non viable
In Essenberg v The Queen (B55/99) the respondents stated that the Australia Act,
specifically Sec 3, subsection 2, some how provides for unrestrained autonomy of law
making by the state of Queensland and that thus the Weapons Act was legal.
I refer to the article - National Gun laws and Constitutional Matters and the
prerogative of the Crown. It states “In the enactment of the Nations Gun Laws by the
State Parliaments of Australia, it was essential for those Parliaments to use part two of
Section Three of the Australia Act, 1986, which allows Australian governments to enact
Laws contrary to the laws of England.
This section of the Australia Act has the provision to allow Australian State Parliaments
to enact laws contrary to the Common Law Rights of Her Majesty’s subjects
(Australian Citizens) and also contrary to the prerogative of the Crown in respect to
upholding those rights contrary to rights that have been reaffirmed by Statute.
The Monarch cannot lawfully or willingly grant Royal Assent to legislation that
undermines or allows an enactment of laws contrary to Her Royal Prerogative, unless
she has been led to believe this legislation is the will of her subjects, that has been
determined by referendum. There was NO (Federal) referendum held to permit the
enactment of this Section of the Australia Act”.
If the Australia Act 1986 is invalid in Queensland then the Colonial Laws of validity
Act (1865) still applies.
Statute of Westminster
Another legal provision seemingly overlooked for indecent haste attendant to the
Australia Act is that of Section () of the Statute of Westminster 1931 which expressly
provides that any change of Status of a nation within the Commonwealth of Nations
must be approved by all the other national bodies of the Commonwealth. No reference
to this section was made in Sir Joh's speech therefore at the highest level also consensus
was not obtained as required by the Statue of Westminster of the imperial Parliament
and all of the Australia Acts fail for a furphy and there is no reason why any subsequent
UK parliament is able to repeal it for the well known principle that one Parliament
cannot bind another. The Australia Act UK therefore falls merely to a legislative
ordinance for lack of representational will at two tiers in Australia ands throughout the
Commonwealth- which applies in devolution the status of legislation in Queensland for
lack of democratic truth.
Ordinances and Peace, order and Good government.
An Ordinance is not law, not legally binding on the population for lack of democratic
impetus. True law as shown in this submission elsewhere is an undying force for
confirmation of eternal truths
An ordinance in contrast declares for no-one but the controlling power and can be
changed at the instigation of same. Furthermore, in zealous pursuit of conformity,
ordinances, lacking a democratic base, sprout as anticipatory measures interfering in the
natural and inherent responsibilities of the populace.
“Every ordinance interferes with the common law”
So says Street, in his well known volume “Ultra Vires”, and in reference to legislation
in particular. Thus while legislation which interferes with inherent law may have the
colour of validity, it has no more substance than that of an edict for having no reference
to true democratic consensus.
In the case previously cited Lord Justice Laws and Mr Justice Gibbs reviewed the
subject of ordinances in application to Peace, Good order and good government as
follow:... to support the proposition that the formula Peace order and good Government
used so often in measures conferring powers to make colonial law was to be taken to
have the widest possible intendment.....”
Was found in contrary light to the natural meaning of those words. Inciting the example
of Winfat Enterprises (1985) AC, 733,747, Lord Justice Laws brought to light that
expediting the augustness of rule to exclude beneficence of principle made
“No difference to the power breadth that the colonial legislature in question is not
established on representative principles. Cf Li Hong Mi (1920) AC 735”
He continued: “the authorities demonstrate... that a colonial legislature empowered to
make law for the Peace order and good Government of its territory is the sole judge of
what those conditions.... require... But the colonial legislatures authority is not wholly
unrestrained; Peace order and Good government may be a very large tapestry, but every
tapestry has a border”
And further: “ in answering the question whether a particular measure... can be
described as conducing to the territories Peace, order and good government, it is .... no
anachronism.... for the court to apply the classic touchstone given by our domestic
public law for the legality of discretionary public power as it ids enshrined in
Wennesbury (1948) 1KB 223”
Under the subheading “The Legality of the ordinance” the Lord Justice goes on to
facilitate a clear review if albeit an analogous to contemporary legislative ambiguity.
He declares that the effect of the ordinance in Question denudes the populace of their
natural rights and that peace, order and good governance that meant “nothing save by
reference to the population. They are to be governed, not removed” (from the island of
nascence) yet the broad principle is answered- authoritative edicts as jure dare no
matter how clothed, cannot remove inherent right, which, as he points out elsewhere in
the judgement” will be creatures of the Common law since their existence would not be
the consequence of the democratic political process but would be logically prior to it”
To adapt the basic principle within Lord Justice Laws finding where he finds it
objectionable that wholesale substantive rights are removed (in this case the complete
population) which cannot conduce to the territories peace order and good government
even for the purpose of national security which in such contextual application is merely
a “formula for conferring unfettered powers”
He continues: ”each of the words, peace order and good government in relation to a
territory necessarily carries with it (the implication that the intent is beneficent”....to
hold that the expression used (in such a way) justifies the provisions ... would be an
affront to any reasonable approach to the construction of language. I would conclude
therefore that the ordinance was unlawful.
I refer to the UK Secretary of State for the Foreign and Commonwealth Office, R v.
[2000] WCA 78 (3rd November, 2000) Case No: CO/3775/98
This is a recent case that expands on the validity of the Magna Carta in modern law
On Magna Carta
33 It is clear that the Magna Carta is not applied to any colony by express words; it may
only be so, therefore, by “necessary intendment”. There was much argument at the Bar
as to the extent to which the Magna Carta “followed the flag”. That expression
appeared in a judgment in the Canadian Supreme Court in Calder v AG of British
Columbia (1973) 34 DLR (3rd) 145, where at 203 it was said that Magna Carta “had
always been considered to be law throughout the Empire. It was a law which
followed the flag as England assumed jurisdiction over newly discovered or
acquired lands or territories.” This statement, much pressed by Sir Sydney, was
approved by Lord Denning MR in R v FCO ex p. Indian Association of Alberta [1982]
QB 892, 912.
The citizens of a colony are, distinctly, the Queen’s subjects; and as such enjoy the
legal heritage of the Magna Carta.
. I will only cite Pollock and Maitland, The History of English Law (2nd edn 1923), vol.
I. p.173:
“... this document becomes and rightly becomes a sacred text, the nearest
approach to an irrepealable ‘fundamental statute’ that England has ever had. In
age after age a confirmation of it will be demanded and granted as a remedy for
those oppressions from which the realm is suffering, and this when some of its
clauses, at least in their original meaning, have become hopelessly antiquated. For
in brief it means this, that the king is and shall be below the law.”
26. This describes the enduring significance of the Magna Carta today. So far as it is a
proclamation of the rule of law, it may indeed be said to follow the flag –
, their Lordships in Liyanage continued (284B-285B):
“Therefore the legislative power ............. is still limited by the inability (which it
inherits from the Crown) to pass laws which offend against fundamental
principles.
In pari delicto potior est conditio defentis- no action can be maintained if illegality is
relied upon to maintain the case
Martin Essenberg Lot 7 Runnymede Est Rd, Nanango.
Dated the 14 day of December 2000