IN THE HIGH COURT OF AUSTRALIA
BRISBANE OFFICE OF THE REGISTRY
BETWEEN
BETWEEN
And
Matter no. B54/1999
Martin Essenberg
Applicant
The Queen
Respondent
Matter no. B55/1999
Martin Essenberg
Applicant
And
The Queen
Respondent
Court Hearing – 21st June 2000
BETWEEN
ORAL SUBMISSION
1.
My name is Martin Essenberg and I am appearing for myself. I am seeking relief from the orders of
McMurdo P, McPherson JA and Chesterman J in the Brisbane Court of Appeal on 23 August 99, that
of Boyce J in the District court in Kingaroy 22 March 99, Lebsanft SM in the magistrates Court in
Kingaroy 2 September 98 and Smith SM in the Brisbane magistrates Court in 11 August 98 under
section 50 of the Weapons Act 1990 of Queensland.
2.
Because I am unfamiliar with advocacy I respectfully ask the court that I may read from prepared
notes for the purposes of oral argument.
3.
I come to this court under the Constitution of Australia (9.1) asking this question which I trust you
will answer for me.
4.
QUESTION: 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 Judiciary Act 1903
(Cth), to the District Court at Kingaroy, or hear it at common law (14.7 p 116 “every word”) itself (1)
at Kingaroy, for hearing 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, (8.3)
or is an Act discriminating (15.1) against country people who need guns for security of their homes
from vermin, and city people who may have no need at all for a gun.?
(1 section 15- High Court of Australia act 1979)
5.
6.
A declaratory judgement on the validity of the statute in question namely the weapons act 1990 of
Queensland is sought in addition to the orders sought previously
7.
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 whether the gun laws which were 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(2) (16.1) when the
referendum was passed in 1899 and I honestly believe they still are.
(2 Colonial Laws Validity Act 1865 (Imperial) reprint no 1, 14th July 1994 (Q) Section 2)
8.
9.
You have the text of the Queensland Court of Appeal decision (Pg 53 application book). They deny
the existence and effect of the Imperial Acts Applications Act 1984. (5) They admit I asked for their
application. (pg 55) I feel betrayed by them. An Act is an Act, is it not? The Oath (4.2), which allows
a Judge to be entrusted with a court, has not been upheld. Section 3 Oaths Act 1867 (4.1)
10. Martin Essenberg Lot 7 Runnymede est Rd Nanango, 4615. Ph 07 41 632 423
11. It is submitted that the matter is properly before the court as a Constitutional cause enlivening
sections 73(1) 76 (1) and 77(3) of the Constitution as a matter arising and involving its interpretation,
under the jurisdiction of Sec 35(I)a, b, 35 (2), and 35A, 40(2)(b) and 40(3) of the Judiciary Act 1903
(Cth)
12. On May 14th 1900, just over a hundred years ago Joseph Chamberlain introduced a Bill into the High
Court of Parliament in Great Britain, for registration, unaltered, (14.8) of an act recording the
proceedings in a referendum held in the five colonies of Australia federating themselves into this
Commonwealth. I submit the text of this speech to the court. It is evidence that the Constitution is not
an ordinary Act but is an Act passed by a referendum, (14.4) and merely registered in the Parliament
of England as an Act by the Commons House.
13. That referendum created the Supreme Court of Australia, to be called the High Court. (9.5) The
referendum prohibited Parliament from ever interfering with the Constitution of the High Court in
section 77 (I) (9.6) of it, and until the people as a whole change that Constitution, (9.9) that is the
law. This court has the only total jurisdiction of any court in Australia. It cannot be limited.
14. The Parliament of the Commonwealth has exclusive power to legislate only in the very narrow
confines of section 52, Constitution (9.4). 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.
15. The Parliament of the Commonwealth, is the creation of the people by referendum, (14.4) and the
Australian Supreme Court, referred to by Joseph Chamberlain on page 118 of the report of his
speech, was not to be statutory Court but a common law court, with original jurisdiction at common
law to sit with a jury anywhere (4) in Australia that its services were required to resolve disputes
about the Constitution (5). The insertion of the words, ” for the peace order and good government”
in section 51 Constitution, (9.3) and section 2 of the Constitution Act 1867 (Q) (8.3) means that if a
citizen member of the democracy believes on grounds that are supportable (6), that a law is not good
government for him, the High Court has a duty to empanel 12 electors from his local community, to
decide that dispute between him and the elected delegates who made a law which he considers
prejudicial to his interests.
16. (4 section 15 High Court of Australia Act 1979)
17. (5 section 76 (i) Constitution and Section 30 Judiciary Act 1903 (Cth)
18. (6 Claim of Right section 22 Criminal Code)
19. The Office of Governor, in the absence of the Queen is the fountain of justice and the source of all
laws in Queensland. His office must comply with the Constitution of Australia (9.1) and he must take
advice from the Supreme Court of Australia, properly constituted at common law, as the Queen did
from the Privy Council before federation. This is your charge.
20. I have an honest claim of right (10.5) 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,
but must be tried by Jury. I submit my claim of right is reasonable, based as it is upon the Imperial
Application Act 1984, (5.2) Schedule 1 (1297) 25 Edward 1 ch 29, and (1688) 11 William and Mary
Bill of Rights Sess 2 ch 2 Bill of Rights (13.1). These laws were known to the participants at the
referendum creating this court. The persons who voted to create this Supreme Court expected this
court to protect them from the tyranny of Parliaments as Common law courts have done since 1297.
(12.1) Party politics have corrupted Parliaments, and you, the High court are our common law
guardian. I rely on the words of William Penn (7) (12.1) in 1670 as my own words.
21. (7 International Universities Reading Course 1937, International University, UK Vol 2 page 504
22. In Walden V Hensler (1987) 163 COMMONWEALTH LAW REPORTS 561 the High Court appears
to uphold Section 22 for the benefit of Mr Walden. In 1999 in Yanner V Eaton (1999) HCC 53 (7th
Oct 1999) you have declared the law again, and while not mentioning section 22, Criminal Code you
have upheld a Magistrate’s right to recognise an honest claim of right. In the case of Yanner, the
claim of right arises out of the Native Title Act. Mine arises under the Constitution, (9.1) and the
International Covenant on Civil and Political Rights, and the imperial Acts Application Act 1984,
schedule 1 (1297) 25 Edward ch 29 (5.2). My claim of right is to be not tried by a public servant,
appointed by the Governor, but by a Jury of my peers as I am supposed to be guaranteed, by the
Imperial Acts Application Act 1984, schedule 1 (1297) 25 Edward ch 29 (5.2). I ask simply to be
treated the same as Mr Yanner (15.4)
23. 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 criminal
Code and not allow a magistrate or any other person to make an order prejudicial to me. Until the
question of fact of whether the Weapons Act 1990 discriminates (15.1) against me is decided by a
jury unless I consent. Aboriginal Australians get a good shake before the Magistrates Court. It seems
from my experience that non – aboriginal ones do not. It is time that the High Court extended the
same justice to everyone.
24. The High Court holds the Constitution on trust for the voters who created it as the Supreme Court
(9.5) Each has an unfettered right to come to the court for redress. Its jurisdiction is unfettered(8) and
unfetterable. (9.6) I am but one of those voters. The word Supreme Court had a meaning on the 14th
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 to them in the referendum. (Page 111
Chamberlains speech 14.4) 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 rule of law to us, upon trust 100 years ago.
25. (8 section 77 (i) Constitution)
26. Between elections, Parliaments think they have an unfettered power to do whatever the controlling
party decides should be done, and that they can ride rough shod over the people who delegate law
making powers to them. Parliament think they are supreme, but by the very words, Supreme Court, in
the section 71 Constitution (9.5) the people have reserved the power to review acts of Parliament,
which affect a voter’s vital interest. If a court is Supreme, it is not inferior. All courts below are
inferior, and the High Court of Parliament, (14.6) created by section 49 Constitution, has power,
subject to the constitution, to regulate its own affairs. The Constitution itself by creating the Supreme
Court, created a court supreme 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 the High court of Australia does its Constitutional job, it will be held throughout the
land in the highest regard whatsoever. That is how the common law was made since 1215, and that is
the way we decided 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 have given it, but only by a
jury, and 3 judges(9). (9.5)
27. (9 section 71 Constitution)
28. Queensland has passed legislation to confirm that we are all sovereign citizens-the Anti
Discrimination Act 1991. (15) It is honoured by Queensland Courts by disregarding it. (54
Application book) As paid public servants, magistrates and now the 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 his
seat on the bench. Angelo Vasta was not tried in any court and found guilty of any crime. Magistrate
Black was shifted from Cairns to Brisbane as a disciplinary matter, against his will, and only allowed
to return after a number of years. The Judges of Queensland justly fear the power of the State.
Between a citizen and the State a judge, who relies for his bread and butter on the State, can never be
impartial. There is no separation of powers in Queensland. There is a merger of the functions of
impartial judges of fact, a jury, and a paid public officer. The evidence is clearly demonstrated in the
reasons of the Court below. (54 Application book)
29. The legal might of the States and the Commonwealth was arrayed against the High Court, in Yanner
V Eaton. To your credit, you ruled that the Constitution protected him, and he was entitled to rely
upon Australian citizenship to take traditional food. You did right by that man and gave him justice.
30. This Court is special. The Justices of this court need have no fear that they will be impeached if they
stick to the common law and constitute the court within the words of the Constitution. The common
law was declared by the Criminal Code Act 1899 in Queensland, and Section 92 of the Criminal
Code, gives effect to the Magna Carta C 29. It says, Abuse of Office, Any person being employed in
the
public
service
does
or directs to be done, in abuse of the authority of the person's office, any arbitrary act prejudicial to
the rights of another is guilty of a misdemeanour, and is liable to imprisonment for 2 years.
31. I contend that the Weapons act 1990 of Queensland, under which I was charged under section 50
cannot stand and I raised this issue during each of my defences various constitutional points in
relation to the invalidity attracting Federal Judicial power by the defence raised. In Felton V
Mulligan it was held that “ once federal jurisdiction is attracted, even in a point raised in defence the
jurisdiction exercised throughout the case will remain a Federal jurisdiction (Felton v Mulligan
(1971) 124 CLR 367 at 373, 412, 413) The Federal nature of the matter being apparent from the
claim itself. (Felton V Mulligan pg 22)
32. I contend that Federal jurisdiction having been thus invoked the substance of my claim as to conflict
of law should have been examined, and a summary trial not proceeded with until the validity of the
act in question was determined.
33. The respondent has acknowledged that my defence has been consistently founded on the question of
Constitutionality in the first instance.
34. I further contend that given the criminal tenor of the act under which I was charged, I should be
afforded a Jury Trial in that, given the compaginated arrangements between the Federal and State
Governments under covering Clause 5 of the Constitution, the Queensland Government is restrained
from passing legislation conferring jurisdiction upon a state court incompatible with the exercise of
Federal Judicial power. The argument of incompatibility has its foundation in the judicial power of
the Commonwealth as identified by Chapter III of the Constitution, determined at length in Kable V
the Director of Public Prosecutions of NSW FC 96/027. The majority decision upon which I rely.
35. I argue that just as certain principles underlie the supintendant power of Chapter III, to properly
effect the cohesiveness of the rule of law, and thereby good governance, there are, others which
consubstantiate the constitutional compact giving life to Chapter III.
36. I would now like to take the court through as to why the Australia Act does not impede my claim.
37. The respondents argument seeks reinforcement for the notion that State law legislation is
autochthonous law and thus unable to be challenged by reason of same, and furthermore, that the
Australia Act, specifically Sec 3, subsection 2, some how provides for unrestrained autonomy of law
making by the state of Queensland.
38. However, it is necessary to include the view that by Section 11 of the Australia Act all causes
previously removable to the Privy Council, are now properly dealt with by this Court as a final
arbiter under Section 73 of the Constitution in superintendence of the whole of the Court system
insuring unity of the common law of Australia
39. Into this can be read the independent guardianship of the integrity of Law including the upkeep of its
founding principles. Section 5 of the covering clause of the Constitution binds all courts, judges and
people of every State, not withstanding anything in the laws of any State, whereby it is implied the
continuing observance of the binding principles of Federation. Section 106 of the Constitution makes
the States Constitutions subject to that of the Commonwealth and section 109 invalidates the States
laws to the extent of inconsistency with the Commonwealth law. Thus antinomy- that is conflict of
laws -is precluded.
40. “In the Commonwealth V Queensland, in a judgement with which Barwick CJ, Stephen and Mason
JJ, agreed Gibbs J held that it is implicit in Chapter III that a State cannot legislate in a way that has
the effect of violating the principles that underlay Chapter III” per McHugh J, Kable V DPP at pg 34.
41. It follows then, that perpetuating the integrity of law is incumbent on the Federal Judiciary under
Chapter III is binding also upon all courts, Judges, and people of every state by virtue of covering
Clause 5 under the Constitutional Accord, which, in se, bespeaks of the retention of individual jural
responsibility at common law.
42. So that while it may be said that the provisions of the Australia Act anneal our Constitutional
Compact, it is unable to derogate from jurisdictional responsibility and its intrinsic founding
principles.
43. Jurisdictional responsibility implies due cognisance of the canons of antecedent compacts upon
which our Constitution is based. That the Australian constitution is drawn partly on the American, is
enough to pay due regard to their Jurisprudential view on such matters.
44. In an American judgement of 1968 it was said
45. “It (Constitution) must be read in the light of all engagements entered into before its adoption
including the declaration of Independence and the Declaration of Resolves of the First Continental
Congress and the privileges and immunities secured by common law, conferred by Magna Carta and
other English Charters…”
46. and elsewhere “the Constitution is the property of the nation and more specifically of the individual
and not those who exercise Government. All the Constitutions of America are declared to be
established in the authority of the people” First National Bank of Montgomery v Jerome Daly.” Per
Mahoney JP
47. That the people are patently also seen by the Australian Constitutional draughtsman to provide the
main impetus for the compact, inter se, impliedly acknowledges that the canons of law which provide
its substantiveness do not come from executive government, or from Parliament, but those who, by
their very existence perpetuate jus the animus of lex.
48. It further follows that while, prima facie subsection 2 of section 3 of the Australia Act 1986 purports
to sever jus from lex in reality it has the residual effect of consolidating the fundamentals integral to
the system in Australia under the guardianship of Chapter III which compels the judiciary of the
States to uphold the principles thereof.
49. “Legislatures cannot alter or undermine the constitutional scheme set up by Chapter III” per McHugh
J Kable v DPP at page 29
50. and further, “If chapter III requires that State Courts cannot exercise particular powers, the
Parliaments of the States cannot confer those powers on them. That follows from covering clause 5
… and from Section 106 by which the Courts of each State is made subject to the Australian
Constitution. This was recognised in the Commonwealth v Queensland (1975) 134 CLR 298 at page
315 where it was said that legislation in violation of the principles that underlie Chapter III is
invalid” per Gaundron J Kable at page 26
51. The corollaries are that the very pillars, upon which our system of Justice is based, cannot be
legislated away.
52. In the words of McHugh J, “ Neither Parliament (Commonwealth or State) can legislate in a way that
permits the Supreme Court (but for our purposes the Court of the State) while exercising Federal,
Judicial power to disregard the rules of natural Justice, or to exercise legislative or executive power.
Such legislation is inconsistent with the exercise of Federal Judicial power. The compatibility of
State legislation with Federal Judicial power does not depend on intention. It depends on effect. If, as
Gibbs J pointed out in Commonwealth v Queensland, State legislation has the effect of violating the
principles that underlie Chapter III, it will be invalid” Kable at pg 34.
53. From the foregoing it is seen as imperative that the State Courts observe the responsibilities of
Jurisprudence, which are incumbent upon under the Federal Constitution and not to derogate from
their legal foundation. Is thereby not possible without becoming ultra vires, to set aside factors which
consubstantiate the matrix, inter alia, the antecedent perpetual compacts of the Bill of Rights (1688),
the 37 confirmations of the old Magna Carta (1297) , the Statute of Monopolies 1623 with a handful
of other covenants, referred to as “the Bible of the British Constitution, were already entrenched by
reason of grounding in unchanging principle. A principle is an undying force.
54. Therefore the learned Judges of the lower courts fell into jurisdictional error by not pausing to
ascertain the true status of their guiding principle.
55. It is evident section 78B of the Justices Act was invoked by the substance of my defence in the first
instance, which similarly was caught 35A of the Judiciary Act (1903).
56. Thus: “ when a court is created by an Act of the Legislature, the Judicial Power is conferred by the
Constitution and not by the Act creating the Court. If its Jurisdiction is to be limited it must be
limited by the Constitution” 16 American journal 2d on Constitutional Law sections 210-222, pages
77 to 83. Per Marney JP in First National Bank of Montgomerey v Gerome Daley
57. The word, "Prejudicial" means harmful to rights or interests, and I say that the decisions of all the
judges below have been harmful to my rights and interests.
58. The Anti Discrimination Act 1991 says on page 2260 Queensland Statutes no 85 1991, (15.1) we are
all equal. The Anti Discrimination Act 1991 binds the Crown by Section 3 in all its capacities. By
Section 101 (15.4) it binds all Judicial officers. By Section 5 Criminal Code Act 1899, persons in
Queensland may only be tried as for an indictable offence under the express provisions of the code.
This Act was in force and known to the electors who voted for Australia. By Section 118 (9.9)
Constitution, it became Australian Law. By Sections 560 to 659 Criminal Code, the procedure to try
indictable offences was codified, and a jury trial guaranteed.
59. Indictment is defined in Section 3 of the code, to mean a written charge preferred against an accused
person in order to his trial before some court other than justices exercising summary jurisdiction. I
did not at any time consent to summary jurisdiction. Applying the rule in Heydons' (10) case, the
mischief rule, summary procedure was for the benefit of persons accused, not prosecutors. That is the
meaning of the word "may".
60. (10- CS Pearce and RS Geddes STATUTORY INTERPRETATION IN AUSTRALIA, 3 rd edition
(1988)Butterworths. Brisbane. P 24 Heydon’s case (1584) 3 co rep 7a at 7b, 76 ER 637 at 638
61. In 1960 Section 3 Criminal Code (11) (7.1) allowed me to submit myself by consent to two justices
of the peace, who were not paid public officers but drawn from the ranks of my local community, for
justice. In 1985, by Act no 32, without a referendum, the Parliament of Queensland enacted that a
Magistrates court could try me. By Section 53 Constitution Act 1867, (Q) this is not an Act. Section
53 Constitution Act 1867 mirrors Section 128 Constitution. A Magistrate appointed by the State as
delegate of the Office of Governor, is not the same as two Justices of the Peace appointed on the
recommendation of the local Member of Parliament. It is a Constitution change and requires a
referendum.
62. (11- Queensland statutes 1828- 1962 Vol 3 p 221)
63. I would now like to turn the Courts attention to the previous judgements in the lower courts. Given
the nature of the ligamen binding the State and Federal principles it is submitted it is not necessary to
expound on their honours dicta but some response is invited. In the District Court of Appeal at
Kingaroy his Honour Boyce J was given to the view that there is “no inconstancy…. shown between
the relevant statute law of the State of Queensland and the statute law of the Commonwealth of
Australia.” With all due respect his honour neglected to observe the invocation of Federal
Jurisdiction in the matter and thus inconsistency of applied jurisprudential law. The vagueness of his
honour remark is all the more mystifying given there is no relevant Commonwealth statute pertaining
to the Weapons Act of Queensland, as rightly pointed out by Lebsanft SM in the Court beneath him
and tends to be provocative of Judicial review.
64. Turning now to the views expressed by Lebsanft SM at Kingaroy on 2 Sept 98 at page 8 of the
application book the learned Magistrate, relies, inter alia on the judgement of Gibbs J in Coe v
Commonwealth (1979) 53 ALJR 403 at 408 in which this court was evenly divided.
65. That was a case which turned upon the question of Aboriginal Sovereignty as confined to State and
Federal Jurisdiction, and in this instance is misapplied.
66. The learned Magistrate further quotes from a supporting case in the same proceeding and then in
another also turning upon Aboriginal sovereignty but respectfully in doing so fails to provide further
substance to his deliberation.
67. In seeking to further rely on the plenaries of the Queensland Government in the making of laws,
again, has effectively failed to address the points raised in issue.
68. The correctness or otherwise per se, of the arguments in regard to Magna Carta raised in the
proceedings of Skyring and Cusack, and upon which the learned Magistrate also relies, have no real
bearing upon the substantiveness of mine in this case.
69. However it is the assertions contained in Chestermans J judgement in regard to Sir Edward Cokes
Commentaries that invite some address in detail.
70. In seeking reliance upon the minority judgement of Dawson J in this court in Kable v DPP the
learned judge was applying error of law and furthermore, his interpretation of Justice Dawsons
judgment was, with, due respect, erroneous. When one looks at the actual dicta one finds the intent of
the wording to be distinct from that of the meaning drawn by the learned Chesterman J. Coke was
referring to the High Court of Parliament in his Fourth Institute. Indeed, the Fourth Institute begins
with the wording “ of the High and Most Honourable Court of Parliament. This Court consists of the
Kings Majesty in his Royal politic capacity, and the 3 Estates of The Realme.” The whole of
Parliament then being a Court, as interpreters of communis juris Anglia would naturally be
transcendent and absolute” as in absolution before God, and perforce had to be upholden and not in
contradistinction to their charge. Bills of Attainder then, which were Acts of Parliament contrary to
natural justice, could never be valid law and accordingly, in the form of the Community Protection
Act of NSW of 1987 was struck down for that very invalidity as recently as 1996 by this court.
71. In so far as the Colonial laws of Validity Act (1865), in the context that the learned Judge has sighted
that being with reference to Section 3 it cannot be expressly applied in isolation of section 2. Section
3 simply re-iterates section 2, which states:
72. “Any Colonial law which is or shall be in any respect repugnant to the provisions to any act of
Parliament extending to the colony to which such law may relate, or repugnant to any order or
regulation made under authority of such Act of Parliament, or having in the Colony the force and
effect of such an Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of
such repugnancy, but not otherwise, be and remain absolutely void and inoperative”
73. In other words, any colonial law shall be read subject to repugnancy of Imperial Acts, allowing for
the parts that are severable from the repugnancy to stand while the remainder is void for it.
74. Section 3 reads: “ No Colonial Law shall be or deemed to have been void or inoperative on the
ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of
some such Act of Parliament, order or regulation as aforesaid”
75. This section does not stand alone by virtue of the very addition of the final wording “as aforesaid”
Had these words not been included then the construct would plainly be independence of Colonial law
irregardless of its badness, and would render the previous section redundant. But it is ancillary to
section 2, and is not, in the obvious meaning of the Act, have a life of its own. To read otherwise is to
subvert its plain intent. Thus, it does not derogate form section 2 but confirms it and the canons upon
which the responsibility of jus are borne, remain acknowledged and unimpeded in the life of the
colony and carried into the Federal Compact of the States.
76. The inherited responsibility of jus, the vital substance of legal law was acknowledged in each state by
the respective Imperial Acts Application Act, specifically in Queensland the Imperial Acts
Application Act (1984) which expressly provides for the Bill of rights, Magna Carta and the Statute
of Monopolies.
77. It is now necessary to turn to the Weapons Act itself. The question of law to be determined here, is in
response to the respondent’s claim that the weapons act of Queensland is “ a law validly made by the
Parliament of the State of Queensland”
78. It is contended that it is a law not validly made by the Parliament of Queensland for being beyond the
power of the Queensland Parliament to enact such a law. That it is a law in derogation of that States
own Constitution in the light of its obligations to the federal compact initiated by Covering Clause 5
and by Section 106, and the resultant constraints invoked by Chapter III intra-state.
79. That the Queensland Parliament in purporting to enact such a law, also derogated from its
jurisdictional responsibility in the Federal sense, that is incompatible with its standing as a State
under the Commonwealth Constitution, which necessarily embraces the jurisprudence of natural
justice and the obligation to maintain the integrity of the judiciary as independent both of the
legislature and executive Government.
80. That it is also no true law due to the absence of the integral component of jural symbiosis which
prescribes lex and thus appears to be a private law under guise of parliamentary privilege or
prerogative, devolving authority by “Act of State”, seeking to create an offence where there was none
before.
81. This in itself is contrary to the implied law brought by the colonists to NSW. For a determination, in
banco, made on such Acts during the Reign of James I by the senior judiciary of England,
comprising, Coke CJ KBD, Flemming CJ, Tannfield Chief Baron and Altham, Baron, and delivered
to his Majesty in the presence of the Privy Council as follows “ The King.. Could not create any new
offence by his proclamation, for then he may create an offence where none is, upon that insues fine
and imprisonment… it was formally declared that the king had no prerogative but what the law of the
land allowed him. By their firmness on this occasion the Judges rendered an important service to
their country. A check was given to the exercise of arbitrary power in this direction…”(12 Reports
74) Gardiner, History of England Volume 2 page 85, 104.
82. That by reason of all the above it is not validly enacted, nor is it, in se, valid law.
83. The most notorious of its provisions are the sections dealing with administration but in any event in
effectively proscribing, by affirmative regulation quiet possession and use of a nominated class of
items hitherto used with natural restraint by the majority of those caught by its provisions the Act
circumvents Judicial discretion by implied and indiscriminate presumption of mens re without
requiring proof of actus reus, or conversely, presumption of actus reus in the first instance without
mens re and without the traditional test of criminal guilt admitting of no true criminal jurisdiction for
to quote an axiom of Coke, “et actus non facit reum nisi mens sit re” (can’t be a guilty of act without
a guilty mind) 3 Institute 6
84. “ It is of the utmost importance for the protection of liberty of the subject that a court should always
bear in mind that unless a statute either clearly or by necessary implication rules out mens re as a
constituent part of a crime, the court should not find a man guilty of an offence against the criminal
law unless he has a guilty mind” Kay v Butterworth (1945) 89 SJ 381
85. This is supported by the view, in the face of earlier contrary statutory interpretations, that the “free
and concious undertaking of a course of conduct resulting in material harm” is elementsl to mens re.
Actus reus, that is the material destructive harm of pre-meditation is estopped reading into ones state
of mind for “who is to know what is on a mans mind” to paraphrase a well known dicta.
86. And from elsewhere “ for it is common knowledge that the intention of a man will not be probed…”
Bryan CJ YB 17 Edward IV
87. Moral wickedness cannot well be imputed to a man who has behaved as a reasonable man behaves
and a reasonable man doesn’t alter his course of conduct when he has no reasons to foresee that any
harm will come of it.” Outlines of Criminal law by Cecil Turner.
88. The preceeding view of mens re are supported by the findings of Shearman J in regina v Wheat and
Stocks 1921 15 CR APPR 130 at pg 132 The previous decision in this case was questioned thus” was
not the real ground of the “ lower courts decision” that the prisoner had done the thing that was
forbidden by the statute, and that it was not necessary to prove any further mens re?”
89. And by Lord Hewitt CJ in Cotterill v Pema (1936) 1 KB 63 and others. “Actus non facit reum nisi sit
mens re” isa cardinal doctrine of the criminal law” per Lord Goddard CJ, Younghusband v Lustig
(1949) 2 KB 354
90. Section 3 (1) sets out the principles and object of the Act in such a way as to preclude the liberty of
the individual in subordination to public welfare which individual liberty is further diminished by the
carrying into effect of the expressly draconian intent of subsection (1)b
91. At this juncture permission is asked to approach the bench to hand up the relevant pages of the Act,
with due apologies. In the rush to supply full documentation some inadvertently escaped notice.
92. Section 3 can be clearly seen at bottom of page 13. “ Section 3(1) Weapon possession and use are
subordinate to the need to ensure public and individual safety”
93. And “Section 3(1)b public and individual safety is improved by imposing strict controls on the
possession of weapons and requiring the safe and secure storage and carriage of weapons”
94. In the same way the Community Protection Act of NSW (1987) became notorious, so the Weapons
Act of Queensland also seeks to evade natural justice by legislating away recourse to the rules of
evidence under section 147(2)a, in the case of certain appeals (pg 104), yet by section 147(2)b
enjoins that natural justice be observed. This in itself makes a mockery of due process, for how is
natural justice to be applied without full judicial adducement under the normal rules of evidence.
95. Further an appeal is only to be a re-hearing and it is to have no bearing on a previous decision
(section 147.1 Weapons Act at pg104)
96. By section 149 (page 105) an appeal is allowed to the District court, but only on a question of law,
implying that the facts cannot be disputed for statutory pre-determination and one is left wondering
what question of law is left to arise under such a restrictive scope, unless it was a question of ultra
vires. This definitely conflicts with the Constitutional arrangement between the Commonwealth and
the States in Chapter III, by compromising judicial power.
97. The legislative intent is that no other decision could be arrived at but the one directed by Parliament
on questions of fact and law, for the Act precludes all other sources of legal application. This appears
strongly to be a “legislative Judgment and an exercise of Judicial power” on the part of Parliament.
These are the words of Chase J in Calder V Bull (1799) 3 Dallas 386 whose judgement was also
applied by the Privy Council in Llynage v Queen (1967) 1 AC 259 at 291.
98. In the words of McHugh J in this court in Kable v DPP at pg 34. “In the case of State Courts, this
means they must be independent and appear to be independent of their own States legislature and
executive government as well as the Federal Legislature and Government...Public confidence in the
exercise of Federal Jurisdiction by the Court of a State could not be retained if litigants in those
courts believed that the Judges of those courts were sympathetic to the interests of their State or its
executive Government”
99. The provisions of the Act so far cited do not maintain judicial independence, but on the contrary seek
to appropriate it.
100. The analogy to Kable does not end there, for the Act intends that the judiciary make peremptory
findings preclusive of the usual line of independent inquiry by constitutional principle, determining
guilt or innocence under criminal law yet at the same time seeks to imbue criminality to activity
which is essentially civil by nature for not being injurious or in reckless indifference to society.
Indeed, the majority of penalties under the Act are as those for simple offences excepting section 65
“Unlawful trafficking in weapons (pg 65) which prescribes extensive gaol terms.
101. The underlying and more sinister purpose of the act then, appears to be the irregular extension of
criminal faculty to the community at large by the provisions of section 151 “ disclosure by Doctors
and Psychologists of certain information” whereby medical practitioners become compulsory
informers on their patients ”despite any duty of confidentiality owed” (section 151) (3)
102. This pernicious surveillance provision does not provide for any restriction as to the category of
persons covered by it, and so the whole community is put at risk- for who at some stage in their lives
will not see a doctor. There are also no safeguards to ensure that information is not falsified. In
ostensible concern for community welfare the Act stands to surreptitiously invade the private rights
of every individual in the Queensland Community. In pursuit of effecting its intent of “Strict
Control” the legislature sees fit to go outside the law, and in a exercise of bad faith co-opts those in
whom the community must place their trust. The object appearing to be for the purposes of secret file
making. No consent or disclosure is provided for nor is there any provision for any standards of
assessment. Furthermore the legislature has sought to indemnify such unlawful practice by section
151( pg 105), but legislating for unlawful activity does not make it any less so.
103. In contrast the Mental Health Act of Queensland 1974 provides for the most stringent test of proof
beyond reasonable doubt. It is based on evidence adduced under normal rules of evidence before a
retired Supreme Court or High Court Justice and based on friends relatives, legal counsel, ones
private medical practitioners and a host of others privy to ones personal situation and state of mind. 2
independent psychologists, appointed by the Governor in Council, complete the tribunal under that
Act.
104. Under section 93(1) and (2) of the Weapons Act “how to decide whether an Individual is an
appropriate person” an “authorised officer” inter alia, may obtain “a report from the commissioner
about the criminal history of the person” (2a) or (2b)… a report from the appropriate authority in the
other state.
105. Presumably once the “authorised officer” obtains by unspecified manner, the selective information
which in itself may be unreliable he proceeds to act in the capacity of a tribunal though there are no
qualifications attached to his capacity other than that he can be a Police officer appointed by the
Commissioner, who, in the Commissioners opinion “has the necessary expertise or experience to be
an authorised officer” (sec 153)(1)
106. Under section 150 (1) “the minister may constitute an advisory council to advise the minister in the
administration of this Act”, and by section 150(2) the council is also to consist of ministerial
appointees.
107. There is no way to read this provision and the one cited before it but as euphemisms for affirmative
action, given the objective of the Act and the unsavoury methods of surveillance and information
gathering and unspecified and unqualified nature of its administration.
108. Clearly this Act is not about Community welfare but a pernicious attack on democracy itself under
the colour of Law. It is an insidious piece of legislation, which perniciously and surreptitiously
undermines the right of civil society to live in expectation of freedom from persecution by their
government and civil authorities. While the Community protection Act 1974 in Kable v DPP was bad
for the denial of the basic tenets of freedom for one man, this act carries the potential to criminalise
the entire Queensland community. It is malum in se (bad in itself).
109. It is poleptic law, which provides for no real judicial adjudication by normal evidentiary rules and is
at once contemptuous of both Commonwealth responsibilities of the State of Queensland and the
civil rights of the Community. To quote McHugh J in Kable who was quoting Professor Williams at
38 “ predicting dangerousness is notoriously difficult” yet this act has eviscerated all but the form of
due process in its scant provisions for determination and left the courts with no choice but to presume
guilt and award the penalty prescribed.
110. It makes a mockery of due process and of Australian democracy.
111. It also appears to be based on quia timet injuctiveness and is after the nature of a Bill of Pains and
Penalties for its persecutionist tenor. Though it appropriates criminal jurisdiction to achieve its ends
at the same time proper criminal process at criminal law is denied, exposing it for the piece of
cozenage that it is.
112. To quote Sir Edward Coke “Every oppression against law by colour of any usurped authority is a
kind of destruction…. and it is the worst oppression that is done by colour of Justice” II Institutes
113. While an action in the public interest may have well been brought in another way under the Crown
Proceedings Act I am not alone in bringing such matters to the attention of the courts in this way, for
among the pages of liability of the Crown in Australia, New Zealand and the United Kingdom by
Hogg (1971) are found similar responses when an act of the legislature purports to invade private
rights. For the purposes of this hearing it is not I that am on trial but the Act itself and therefore the
respondents view that I was flaunting the law is not appropriate.
114. The Weapons Act 1990 discriminates against country people. It imposes the will of a city majority
upon a country minority. The High Court has a duty to make an order, which will allow country
people in particular and all Australians, decide whether they will, at common law accept the ruling of
the Court of Queensland Parliament. If they will not, the fact will be found that the Parliament has
breached its delegated trust to make laws for the peace order and good government of not only
Brisbane, but also all of Queensland.
115. For all the above reasons the Act should be declared invalid or the previous judgments quashed and
my case remitted for a fresh trial in accordance with due process of law under normal rules of
evidence. For these reasons leave to appeal should be allowed. May God bless you in your
deliberations.
Martin Essenberg Lot 7 Runnymede Est Rd, Nanango.