Essenberg v Shields
14 December 2000
Submission by Martin Essenberg
To the Nanango Magistrates Court
1.
My name is Martin Essenberg and I am appearing for myself.
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.
In the hysteria that followed the Port Arthur massacre, politicians passed gun laws all over Australia. I honestly believe these laws are not within the legal competence of the parliaments that passed them. They offend a number of laws that were in place when the referendum was passed in 1899. The repeal of those laws was outside the competence of Parliament then- and I honestly believe they still are.
4.
As an Australian I am a subject of the Queen, and am entitled to the protection of the Crown and the charters such as Magna Carta, which guarantees the inalienable right of trial by jury.
5.
In Essenberg v Queen in the High Court Judge McHugh states that
“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.”
6.
This judgement is contradictory to many High Court and Queensland Supreme
Court Judgements given previously where the Common Law, The Magna Carta and the Bill of rights have been introduced as precedents.
7.
A precedent is defined as a judgement or decision of a court of law cited as an authority for deciding a similar set of facts; a case which serves as an authority for the legal principle embodied in its decision.
8.
The High Court precedent of PLENTY - v - Dillon (1991) 171 CLR 635 F.C.
91/004 The case traces the history of the law and supporting rulings (precedent) back to the Magna Carta in 1215 A.D.
9.
The judgement of Lord Camden in Entick v Carrington (1765) which was introduced into Plenty v Dillon by the High Court and therefore became a case which was used and may continue to be used by Australian Courts as a precedent.
10.
In Stanbridge v The Premier of Queensland [1995] QSC 201 (25 August 1995)
Mackenzie J said “In the recent Court of Appeal decision of Criminal Justice
Commission v. Nationwide News Pty Ltd (1994) 74 A. Crim. R. 569, 584 Davies
J.A. said:- "The purpose of article 9 was in my view to ensure that what was said

and done in the performance of the functions of Parliament .... was free of sanction by a Court. Otherwise the business of Parliament could not be freely conducted."
11.
In Pepper (Inspector of Taxes) v. Hart (1993) AC 593, 638 Lord Browne-Wilkinson said:-"... the plain meaning of article 9 ... was to ensure that members of
Parliament were not subjected to any penalty, civil or criminal, for what they said and were able ... to discuss what they ... chose to have discussed."
12.
Freedom to discuss is hardly Parliamentary Supremacy. How in Stanbridge v the
Premier could Wayne Goss claim Parliamentary Privilege if the Bill of Rights is no longer valid?
13.
In the matter of Brofo v Western Australia (1990) 93 ALR 207, there was much discussion of the Acts which bind the Crown.
14.
Holding v Jennings (1979) VLR, records that the Victorian Supreme Court upheld
Article 9 of the Bill of Rights of 1688
15.
In the High Court matter of Television Company v ALP - with regard to the ban on political speeches just before an election the High Court upheld the common law right of free speech.
16.
In the USA in EMERSON v UNITED STATES OF AMERICA Judge Cummings
SR goes into some detail on the history of the Right to bear arms, the Bill of Rights and the Rights of the American colonists.
17.
The Bill of Rights and other Imperial Charters were introduced to Australia when it was a colony.
18.
As we were British subjects at that time:-
19.
By Royal patent from Queen Elizabeth I in 1578, Sir Humphrey Gilbert was to take possession of ‘...lands .... all who settled there should have and enjoy all the privileges of free denizens and natives of England’ [viz. equals British subject, today];*pg 9
20.
By Royal patent from King James I in 1606, Walter Raleigh received thus ‘ all
British subjects who shall go and inhabit within the said colony and plantation, and their children and posterity, which shall happen to be born within the limits thereof, shall have and enjoy all the liberties, franchises, and immunities thereof, to all intents and purposes, as if they had been abiding and born within their own realms of England or any other of our other dominions.’
* p 11. Annotated ‘notes’. Further [see pp 90-1, The LEGISLATIVE POWERS of the Commonwealth & the States of Australia: by Sir John Quick 1919]
21.
The Bill of Rights, the Magna Carta and many other Imperial acts were further confirmed by the Imperial Acts Application Act 1984 as being valid in Queensland.
22.
The Imperial Acts Application Act 1984 is a Constitutional enactment and as such can only be altered by a referendum under the Queensland Constitution Act 1867.
Courts cannot find as fact that a Statute is not a law. The active Magna Carta

section is Chapter 29 of the Act of 1297. The Imperial Acts application Act 1984 declares it to be so. It is res judicata.
23.
Denver Beanland, when he was Attorney General confirmed that the Bill of Rights was still applicable in Queensland. The current Attorney General Matt Foley when asked by Dorothy Pratt MLA in a Question on Notice (attached) seems to have abdicated his responsibilities to the High Court.
24.
In 1915, the High Court of Australia, through the Chief Justice [Sir Samuel Griffith] confirmed the common law within the Commonwealth of Australia: -
“It is clear law that in the case of British Colonies acquired by settlement, the colonies carry their laws with them so far as they are applicable to the altered conditions. In the case of the Eastern colonies of Australia this general rule was supplemented by the
Act 9 Geo. IV.[1828] c. 83. The laws so brought to Australia undoubtedly included the common law relating to the rights and prerogatives of the Sovereign in His capacity as head of the Realm and the protection of His officers in enforcing them, including so much of the common law as imposed loss of life or liberty for infraction of it. When the several Australian colonies were erected this law was not abrogated, but continued in force as law of the respective colonies applicable to the
Sovereign as their head. It did not, however, become disintegrated into six separate codes of law, although it became part of an identical law applicable to six separate political entities. The same principles apply to the laws of the United Kingdom of general application such as the Statute of Treasons. In so far as any part of this law was repealed in any Colony, it, no doubt, ceased to have affect in that Colony, but in all other respects it continued as before. When in 1901 the Australian
Commonwealth was formed, this law continued to be the law applicable to the rights and prerogatives of the Sovereign as heads of the States as before, subject to any such local repeal. But, so far as regards the Sovereign as head of the
Commonwealth, the current which had been temporally diverted into six parallel streams coalesced, and in that capacity he succeeded as head of the Commonwealth to the rights he had had as head of the Colonies. I entertain no doubt that it was an offence at common law to conspire to defraud the King as head of the Realm, that on settlement of Australia that part of the common law became part of the law of
Australia, that on the establishment of the Commonwealth the same law made it an offence to conspire to defraud the Sovereign as head of the Commonwealth.
.................”
per GRIFFITH C.J., 20 C.L.R., 435-6. Also endorsed by ISAACS J.
445-6 and HIGGINS J. 454
25.
From the above Royal patents, the reference to people being British subjects in any
Statute means that it applies ‘throughout the Empire’.
In CONCLUSION
26.
As a Colony we inherited the Common law including the Bill of Rights and Magna
Carta
27.
The Imperial Acts Application Act 1984 reconfirmed that they are still valid enactments
28.
Many parts of Magna Carta and the Bill of Rights and the Common laws have been introduced by various Courts as precedents and can thus be used as an authority for the legal principle embodied in its decision.

CLAIM OF RIGHT for a Trial by Jury
29.
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).
30.
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 (7 th
Oct 1999) the High Court declared the law again, and while not mentioning section 22, Criminal Code have upheld a
Magistrate’s right to recognise an honest claim of right.
31.
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).
32.
(The High Court of Australia by majority, in Yanner V Eaton, upheld the magistrate’s recognition, at Mt Isa, that the Commonwealth could legislate to recognize individual sovereignty in an Aboriginal person.
33.
The High Court of Australia, by upholding the right of the delegates of the people of Australia to grant sovereign immunity, to one class of people, must now extend their decision. You must now extend that same privilege to each and every citizen of this democracy. The Anti Discrimination Act 1991(Q) and International
Covenant on Civil and Political Rights binds the court, individually and collectively to apply equality to all. Section 13 Crimes Act 1914, is an equally certain statement of sovereignty, as the Statute which was relied upon by Mr Yanner.
34.
The Anti Discrimination Act 1991 (Q) confirms, in its long title, that the
International Covenant on Civil and Political Rights is domestic law
35.
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. In my case you should obey section 92 Criminal Code and not 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.
36.
There can be no doubt that an equity court was required to sit with a judge and jury in Queensland at the formation of the Commonwealth. There can be no doubt that
Section 118 Constitution gives that law full faith and credit throughout the
Commonwealth. There can be no doubt that if there is a conflict between the law and equity, equity must prevail.

37.
By the Judicature Acts 1876(Q) the functions in equity were vested in a court with a jury, not in a judge. The collective conscience of 12 jury persons was seen as equal to the collective conscience of the Church and Archbishop of Canterbury
38.
The evidence that juries were the norm in trials at common law, and compulsory, in
NSW in 1900, is contained in the Volume XXI NSWR 1 [1900.]
39.
A magistrate is unable to sit without a jury without offending the Magna Carta unless the accused grants him jurisdiction.
40.
The consent to be tried summarily must be clear and unequivocal and a failure to carry out the procedures for obtaining the consent will deprive the court of jurisdiction to determine the matter summarily (Halsbury’s laws of Australia (para
130-13460). This provision is to prevent corruption and the usurpation of the role of the citizen in self-government, and prevent the oppression of minorities by majorities.
41.
When a judge sits alone, without consent, he is an administrative officer, not a judicial officer. He is a justice, not a judge, until he either obtains consent to act as a judge by all parties, or empanels a jury, to give the state power to make orders prejudicial to the sovereign members of that state. Judges may, however give administrative directions to enable the court to be created and brought into existence. It is not a court, until it either has consent to jurisdiction, or empanels a jury of 12 sovereign electors to perform the judicial function of finding fact for the court
42.
The difficulty that Australians are facing today is that the Governments of the
Commonwealth and of the States have meddled with the legal system, so that no
Court now sits in equity, with criminal and civil jurisdiction combined, or has the benefit of the combined consciences of 12 average Australians of the same peer group as those who are before the court.
MAY
43.
Summary proceedings are consent proceedings in all Courts and unless the consent of the defendant is obtained, it is the law that a jury be empanelled
44.
Summary offences are only offences that may be prosecuted without a jury. The operative word being "may" . If one is asked for the defendant has an absolute right to get the jury for a trial and the findings of the jury bind the sovereign. That ensures fairness and impartiality.
45.
The Weapons Act, section 137, part 1, has the word "may" in it. "May" means that it is not compulsory for the offence I allegedly committed to be tried in a summary manner. It means that if I ask for a jury trial, that I be entitled to be tried on indictment.
46.
WARD v. WILLIAMS (1955) 92 CLR 496 at 8.
In considering the correctness of this interpretation it is necessary to bear steadily in

mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning. "
47.
“The authorities clearly indicate that it lies on those who assert that the word 'may' has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning" - per Cussen J.: Re
Gleeson (1907) VLR 368, at p 373.
48.
"The meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power" - per Lord Selborne : Julius v. Bishop of Oxford
(1880) LR 5 AC 214, at p 235.
49.
One situation in which the conclusion is justified that a duty to exercise the power or authority falls upon the officer on whom it is conferred, is described by Lord
Cairns in his speech in the same case. His Lordship spoke of certain cases and said of them: "They appear to decide Nothing more than this: that where a power is deposited with a public officer of the purposes of being used for the benefit of persons who are specifically pointed out and with regard to whom a definition supplied by the legislature of the conditions upon which they are entitled to call for his exercise, that power ought to be exercised and the Court will require it to be exercised." Per Lord Selborne: Julius v. Bishop of Oxford (1880) LR 5 AC 214, at p
235.
50.
If the legislature intended to have a Judge refuse a jury trial it would have clearly indicated its intention in the Weapons Act. A Judge can grant a jury trial and should not refuse a jury trial to grant a benefit to one litigant over another, particularly when the other litigant is a fellow public officer. In such a case "may" becomes
"must" , or the system is seen to be a servant of the Executive Government and not acting impartially. If the legislature intended that I not be entitled to a jury trial, it would have said, "must" , not "may" .
51.
The respondent's argument in the Kingaroy District Court (Essenberg v Carne) includes the word "may" . Section 161 of the Weapon's Act provides that, "A proceeding for an offence under this Act other than section 65 MAY be prosecuted in a summary way." The second argument of the Prosecution was section 19 of the
Justices Act, "Where an offence under any Act is not declared to be an indictable offence, the matter MAY be heard and determined by a Magistrates Court in a summary matter."
52.
Where does it say that trial by Jury is precluded in this case?
53.
"May" is a word of decided judicial import. If the discretion is not consented to, it is the duty of the Court to treat all offences with a possible penalty of over 3 months as indictable offences to avoid the stigma of corruption overhanging the Court. The

Criminal Code Section 204 obliges the magistrate to set the matter down on the request of any defendant for a jury trial, or offend section 200 Criminal Code.
Refusal of Public officer to perform duty .
PARLIAMENTARY SUPREMACY
54.
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 believe they are supreme,
55.
The people of Queensland by referendum, decided in 1899, to continue the common law tradition we inherited from English colonists. They did not intend that once every three years we could review parliament.
56.
In Calder V Bull, Chase, J:
“I cannot subscribe to the omnipotence of a state legislature…. An act of the legislature, (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.
” 1798 3 Dallas 386
57.
The perception, apparently supported by our courts, that Parliament has absolute sovereignty from the English Bill of Rights Act 1689, is fundamentally flawed.
They omit "charters" which could never be impeached or invalidated and then brazenly claim their rights of absolute Parliamentary sovereignty from that same
Act. For without the Bill of Rights where is Parliamentary Privilege let alone
Supremacy?
58.
Many Sections of the Constitution entrench the power in the Monarch but Section 9,
Sub Section 61 States "The executive power of the Commonwealth is vested in the
Queen". No parliament anywhere can create a monarchy. It is the Monarch who creates the Parliament. So who is supreme?
59.
The Bill of Rights (1688) was a peace treaty that replaced the abdicated Monarch,
James II with William and Mary. It also confirmed the Common laws and Magna
Carta and corrected abuses that had been done by James II.
60.
Throughout the Bill of Rights, and the acts making up the 2 sessions of Parliament, including the oath of supremacy, the people acknowledge the monarch as the Head of state, having final say.
61.
Parliament was enacted into statute in a position of checks and balances to the
Royal prerogative but at no time was the royal prerogative stripped from the monarch
62.
If Parliament were supreme why is there a need to have the sovereign (Via the
Governor) give royal assent to legislation before it can become law? Because that is one of the checks and balances to protect people from tyranny.

63.
The Federal Parliament and the state Parliaments are not sovereign bodies. They are legislatures with limited powers. Any law they attempt to pass in excess of those powers is no law at all. It is void and entitled to no obedience.
64.
Any laws Parliament makes must be in accordance with the recognised principles of representative democracy, constitutional law and the rule of law
65.
" For the Parliament to develop or improve on a fundamental right is one thing. But to enact legislation which expressly removes an already existing fundamental right, and to have that enactment blindly upheld by a Court, is quite another”
66.
" If there is one thread which runs through the whole turbulent history of British constitutional development, it is the belief that we are the servants of fundamental constitutional rules which were there before us and will be there after we are gone.
From the days when the King’s subjects demanded respect for the laws of King
Edward the Confessor, through the centuries in which legendary superiority attached to such acts as Magna Carta, the Petition of Right, the Bill of Rights, the idea of our ancient rights and liberties has determined the form of our endlessly progressive/conservative constitutional change." (Allott, The Courts and Parliament
Who Whom? (1979) CLJ. at 114)
67.
If Parliament has the power to make a legally binding command, no matter what the subject matter of that command, then it is entirely possible that a direct conflict will arise between the duty to obey the law and the moral duty not to obey wicked laws.
This conundrum was solved in earlier times by the social contract. If the sovereign failed to protect the people in the enjoyment of their basic liberties, then it breached its’ contract with its’ subjects, and the oppressive
"law" could not be binding.
Reliance was placed on unchanging common law, or on the Magna Carta, a true convenant between the sovereign and the subject.
68.
The Australian Parliament claims its rights and privileges from the Bill of Rights
1689 (1 Will & Mary sess 2 c 2 1689) which demonstrated that the victors in the
Revolution had sought to protect, not to change, the fundamentals of the constitution. The framers of that document were simply declaring common law that already existed and would continue to exist.
69.
The Bill of Rights was preserving the supremacy of Parliament over any future
Monarch who might feel disposed to assert the opposite. Parliament is sovereign in that sense, not in the sense that it is incapable of doing wrong or that no one may question the validity of an Act of Parliament.
70.
Sir William Blackstone mentions the importance of the Bill of Rights and particularly clause 7:
“The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree and such as allowed by law. Which is also declared by the same statute [the Bill of
Rights] and it is indeed a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and the laws are found insufficient to restrain the violence of oppression.”
William Blackstone,
Commentaries on the Law of England (1765), Vol. 1, 144.

71.
Surely the framers of the Bill of Rights did not intend to enshrine parliamentary superiority in clause 9 and allow subsequent parliaments to eliminate the freedoms given to the people in clause 7 of the Bill of Rights and clause 29 of the Magna
Carta. After all the freedoms of Magna Carta preceded the existence of Parliament by several hundred years.
ENTRENCHMENT
72.
Entrenched Provisions are laws enacted that may not be repealed or amended, or the affect of which may not be altered, by Parliament unless it follows a special, additional procedure, such as approval by the majority of electors at referendum or approval by a two thirds majority in the Parliament. The entrenchment of a law reflects Parliaments intention to protect a law that it considers to be of special significance, by inhibiting a successor Parliament’s ability to amend the law through the normal law- making procedure.
73.
The entrenchment of a law usually occurs by a substantive provision (the entrenched provision) being subjected to another provision (the entrenching provision) which states that the substantive provision may not be repealed or affected without observance of the special additional procedure.
74.
To fully entrench a law, the entrenching provision must also subject itself to the same special procedural requirement before it can be amended (that is the entrenching procedure entrenches itself.) When this occurs, the substantive provision is said to be “doubly entrenched”
Legal, Constitutional and
Administrative Review Committee report no 13, April 99 on the Consolidation of the Queensland Constitution- sec 2.3
75.
Both the Magna Carta and the Bill of Rights are doubly entrenched and may not be altered by any means
COMMON LAW
76.
The common law, which applies in Australia, is the common law of England as it existed in 1836, as it was translated into the colonies and as it has developed within this colony and state in the last 148 years.
77.
All Colonists had these rights from Britain and any subsequent Colonial legislation was only confirming what already existed.
78.
In the Boyer Lecture one (attached) Chief Justice Murray Gleeson on 19/11/00 said: “
The common law of Australia was based upon the common law of England.
We inherited it at the time of European settlement. The word ‘common’ was a reference to the rules that applied to all citizens, the laws all people had in common, as distinct from special rules and customs that applied to particular classes, such as members of the clergy, or in particular places
.”
79.
Dr. David Mitchell B.A. L.L.B. Ph.D L.L.M.) Said: “
We have not been taught at school what the Common Law is, or where it is derived from. I need to remind you

that when this country was settled, they brought with them a System of Law; a
System of Rights; and a System of Constitution. That system was based on the Ten
Commandments.
80.
Before it was joined into the United Kingdom the constitutional structure of
England was that there was a King, who was advised by a team of advisers who had come to be called Parliament; and there was a Court System. King Alfred decreed and declared that the responsibility of the Crown was to apply the Ten
Commandments to every question that came before them; they were to interpret the
Ten Commandments in the light of the whole of Scripture. So the people were to find their rights - that is to say, how the court would handle any issue - in the
Christian Scriptures.
81.
But what if a judge, who of course, in deciding his case would be declaring the word of God, and would be declaring God’s way for handling that particular issue -
- what if the judge was wrong, either because he was bribed, or drunk or simply he had misunderstood Scriptures? Here was a basic function of the King’s advisers.
82.
The basic function of the Parliament was to ensure the wrong court decisions did not become precedents; that is to say, that wrong court decisions were not binding for subsequent cases when they became before the courts. So the Parliament was to tell the King what was the proper interpretation of Scripture. Thus courts were subject to God’s Word: Parliament was subject to God’s Word: the King was subject to God’s Word. There were three parts of the Constitution: King; Courts; and Parliament (or Legislature); reflecting the concept of the holy trinity. So the
Constitution of England came into existence those many years ago, and was the
Constitution when Australia was settled.
83.
Over the years the constitutional basis was often neglected, rejected, or forgotten.
The Hon. John Howard has today, [July 1988] correctly drawn attention to Magna
Carta and our other basic constitutional documents. John Howard said “ Our basic rights have been defined over the centuries through acts of Parliaments, decisions of courts, the ancient Magna Carta and the Bill of Rights of the British Parliament and so forth. They are our basic rights ...”
84.
Our rights under the old Bills and Statutes are still with us and still live. We see from the above that: neither the courts of law, nor the parliament, nor the government as a whole, were originally there to ‘think up’ laws. They were there to uphold THE LAW.”
(Based from a transcript of an address given 1/ 7/88 @
Chapter House, Sydney NSW.)
85.
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.

86.
The case of R v Lord Chancellor ex parte Witham implies that Acts of Parliament cannot repeal common law and our rights have fallen into abeyance through lack of a suitable challenge.
Constitutional Argument
87.
I contend that the Weapons act 1990 of Queensland, under which I was charged under section 50 cannot stand. I would raise various constitutional points in relation to the invalidity attracting Federal Judicial power by the defence raised.
88.
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)
89.
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.
90.
My defence in previous trials has been consistently founded on the question of
Constitutionality.
91.
All persons are equal before the law and if one person who is equal to another asserts that the Constitution applies and another asserts that it does not, then a justiciable dispute arises within the original jurisdiction of the High Court of
Australia by reference to Section 30 Judiciary Act 1903, and it is a dispute involving the contract between the State of Queensland and the Commonwealth of
Australia made for the benefit of the Australian citizenry. It is a basic right of all citizens to a jury trial in such a dispute.
92.
The State of Queensland is in this matter, acting de facto for the Federal government, and as such must exercise the Judicial power of the Commonwealth in accordance with the Constitution and try the matter with a Judge only by reference to section 79 Constitution, which says: The Federal jurisdiction of any Court may be exercised by such number of judges as the parliament prescribes.
93.
If the defendant requires a jury, the Court may not be constituted without a jury unless the defendant consents by reference to Sections 51 and 259 Supreme Court
Act 1995. This Act is of full force in Federal jurisdiction by reference to section 118 of the Constitution, which says: Full faith and credit shall be given, throughout the
Commonwealth, to the laws, the public Acts and records and the judicial proceedings of every State.
94.
A magistrate is not a judge and as such cannot exercise a federal judicial function at all.
95.
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 Attached).
96.
In the case of Brown v The Queen the judges in the High Court emphasise the important role that trial by jury has in the administration of justice. On page 179
Chief Justice Gibbs said:
“The requirement that there should be trial by jury was not merely arbitrary and pointless. It must be inferred that the purpose of the section must be to protect the accused -- in other words, to provide the accused with a "safeguard against the corrupt or over-zealous prosecutor and against the compliant, biased, or eccentric judge "
97.
He goes on to say: “ the jury is a bulwark of liberty, a protection against tyranny and arbitrary oppression, and an important means of securing a fair and impartial trial. It is true that the jury system is thought to have collateral advantages (eg., it involves ordinary members of the public in the judicial process and may make some decisions more acceptable to the public)”
98.
This is a common theme in the High Court.
99.
In KINGSWELL v. THE QUEEN (1985) 159 CLR 264 Constitutional Law (Cth) -
Criminal Law (Cth)
“Regardless of whether one traces the common law institution of trial by jury to Roman, Saxon, Frankish or Norman origins, the underlying notion of judgment by one's equals under the law was traditionally seen as established in English criminal law, for those who had the power to be heard, at least by 1215 when the Charter of that year provided, among other things, that no man should be arrested, imprisoned, banished or deprived of life otherwise than by the lawful judgment of his equals ("per legale judicium parium suorum") or by the law of the land. Modern scholarship would indicate that much of the traditional identification of trial by jury with Magna Carta was erroneous. It is, however, clear enough that the right to trial by jury in criminal matters was, by the fourteenth century, seen in England as an "ancient" right. In the centuries that followed, there was consistent reiteration, by those who developed, pronounced, recorded and systematised the common law of England, of the fundamental importance of trial by jury to the liberty of the subject under the rule of law (see, eg. Co. Inst., Part II,
45ff.; Black. Comm. (1st Ed., 1966 rep.), Book III, pp.379-381, Book IV, pp 342-
344, and, generally, Singer v. United States (1965) 380 US 24, at p27 (13 Law Ed
2d 630, at p 633); Mr. Justice Evatt, "The Jury System in Australia", Australian
Law Journal, vol. 10 (1936), Supplement, 49, at pp.66-67, 72).
100.
When British settlements were established in other parts of the world, trial by jury in criminal matters was claimed as a "birthright and inheritance" under the common law and as an institution to be established and safeguarded to the extent that local circumstances would permit” (cf. the passage from Story's Commentaries on the Constitution quoted in Patton v. United States (1930) 281 US 276, at p 297
(74 Law Ed 854, at p 862); Kent's Commentaries, Lecture 24, pp 1-6; Rutland, The
Birth of the Bill of Rights, 1776-1791 (1983), p.19; United States ex rel. Toth v.

Quarles (1955) 350 US 11, at pp 16-17, n.9 (100 Law Ed 8, at p 14, n.9), and, as to
Australia, J.M. Bennett, "The Establishment of Jury Trial in New South Wales",
Sydney Law Review, vol. 3 (1959-1961), 463).-
MAGNA CARTA
101.
The Magna Carta was a peace treaty signed in 1215 to end a civil war in Britain. It confirmed the Common law rights of the people and corrected abuses of law that had been done by King John. It concerns the limits and responsibilities of
Government and the legal rights of free citizens.
102.
Although the 1215 Magna Carta treaty was reneged on by King John it was reaffirmed by his son on Johns death and has been re-affirmed in various ways some 38 times since it was first enacted.
103.
Magna Carta was never a statute it was a peace treaty and not subject to legislative amendment. The Queen confirmed that it was a peace treaty in 1997.
104.
Ch 29 Magna Carta 1225 (2)
“No man shall be disseised, that is, put out of seison, or disposed of his freehold (that is) lands, or livelihood, or of his liberties, or freecustoms, that is, of such franchise, and freedoms, and free-customs, as belong to him by his free birthright, unless it be by the Lawful Judgement, that is, verdict of his equals, (that is, of men of his own condition) or by the law of the land, (that is, to speak at once for all, that is, the universal common law), by the due courts, and process of law”.
105.
Magna Carta is predicated upon the auto-cephalous authority of the people at natural law, and if it did not exist in script, would, notwithstanding, continue to have a presence by virtue of the generic existence of the inhabitants of the British
Isles, and their descendents, and is of precatory form, spanning generations, by virtue of self-genesis, as indeed, is all customary law.
106.
The Right to a Jury trial (and also private ownership of arms for defence) was entrenched in the Bill of Rights as a re-inforcement of the
“Independence of the
Jury”
, through the use of the Universal common law based upon the Holy
Scriptures, bought about by Williams Penn’s case in 1670.
107.
There is the choice, therefore, between the judgment of one's peers OR by the law of the land. And the law of the land does not just mean enacted statute law. It involves the high principles of the rule of law, due process of law, constitutional law, the rules of natural justice and the principle of ultra vires. (Beyond the power).
Bill of Rights
108.
The 2 Sessions of Parliament assented to under the one date 13 th
February 1688, are inseparable and indissoluble, re-establishing the throne of Great Britain, allowed
William and Mary to ascend to the Throne of Great Britain. It is under this, Queen
Elizabeth II obtains her authority and head of power to sit upon the throne of the
UK of Great Britain. It is established forever more as a blood covenant with all the people of the realm.

109.
The Monarch and the Parliament of the United Kingdom and Great Britain are under the subjection of all the ancient religion, law, rights and liberties of the realm based upon the Holy Scriptures.
110.
S1. 1 W & M, 1688, Session 1 settled the Oaths and Declarations to be taken, not only by William and Mary but also, by each and every successor of the Throne of the United Kingdom of Great Britain.
111.
Session 2 declared and enacted the Rights and Liberties of ALL the Subjects and settled the succession of the Throne, before William and Mary were declared King and Queen of the Realm and could ascend the Throne.
112.
The Throne of England was ONLY offered to William and Mary on the strict condition that they upheld the Ancient Laws and Customs of the Realm, these being declared in S.2 of the Parliament 1688.
113.
The Chapters of both Sessions of Parliament (1688) cannot be separated, repealed, annulled or amended, because ALL are conditional to the offering and acceptance of the Throne of the United Kingdom.
114.
Para iv, Cap VI, S. 1, 1 W & M, (1688) enacted the said Coronation Oath SHALL be in like manner administered to EVERY King or Queen who shall succeed to the
Imperial Throne of the Realm.
115.
Not only does the Monarch swear an oath, but all members of Parliament, all persons employed by the Monarch including Judges, court officials, agents, and advisors etc, were and are forevermore required to swear the said oaths also, to uphold and be under the subjection of all the Ancient Religion, Law, Rights and
Liberties of the Realm based upon the Holy Scriptures.
116.
Throughout the Bill of Rights and the statutes making up the two sessions of
Parliament (1688), the people acknowledge the Monarch as the Protector of the people, having the final say, due to a compact between God and ALL the people, for, as Coke’s exposition of Ch 1 of the Magna Carta has shown: Quod datum est ecclesia, datum est Dea”. “
At law, when anything is granted to God, it is deemed in law to be God’s…..”
No supremacy was given to Parliament, -NOR COULD IT
BE.
117.
S.2, 1 W&M, (1688) Cap. II, para VII declared William and Mary, King and
Queen; “and the said Lords spiritual and temporal, and commons, seriously considering how it has pleased Almighty God, in his marvelous providence, and merciful goodness to this nation, to provide and preserve their said Majesties Royal
Persons most happily to reign over us, upon the Throne of their ancestors,…. And do hereby recognise, acknowledge and declare, that King James II having abdicated the government, and their Majesties having accepted the Crown and
Royal Dignity as aforesaid, their said majesties did become were, are, and of right ought to be, by the laws of this realm, our sovereign lord and lady, King and Queen of England, France and Ireland, and the dominions thereunto belonging, in and to whose princely persons, the royal state, crown, and dignity of the said realm, with

all honours, styles, titles, regalities, prerogatives, powers, jurisdictions and authorities to the same belonging and appertaining, are most fully, rightfully and
ENTIRELY invested and incorporated, UNITED and ANNEXED”.
118.
This clearly declares the Monarch as having supreme power NOT parliament. The
Ancient Laws, Rights and Liberties under the Holy Scriptures were entrenched so that no one, including the Monarch or the Parliament, could abrogate the Ancient
Laws and Customs of the people.
119.
S.2, 1 W&M, (1688) Ch. II,
“and they do claim, demand, and insist upon all and singular the premisses, as their undoubted rights and liberties; and that no declarations, judgements, doings and proceedings, to the prejudice of the people in any of the said premisses ought in any wise to be drawn hereafter into consequence or example”.
120.
SS.1&2,1 W&M, (1688)
“and ALL the enactments thereto belonging, including the
Coronation Oath, the Bill of Rights, Oaths of Supremacy and Allegiance, forms one interdependent WRITTEN CONTRACT sealed between the Sovereign Monarch of the United Kingdom of Great Britain and ALL the people of the United Kingdom, and the dominions thereto belonging, FOR ALL TIME TO COME with all the
Rights and Liberties asserted and claimed in the declaration enshrined forevermore”.
121.
No dispensation was allowed by either party (the Monarch and the People) to the contract. None were passed by that Parliament. The subject’s liberties were and are to be allowed in all times to come.
122.
No Member of Parliament could or can ever vote for or purport to enact any law in derogation of Her Majesty’s Coronation Oath or in derogation of the Sovereignty of the Queen - in – Parliament at Westminster.
123.
The Sovereign Queen - in – Parliament at Westminster. Her Majesty, Queen
Elizabeth II is bound by S. 1, 1 W&M (1688), Ch VI, (Coronation Oath) and has sworn to govern the people of Australia according to the guaranteed Constitutional
Rights of the United Kingdom of Great Britain, inherited by us as subjects of the
Throne- (eg, the Bill of Rights and the Magna Carta). It is Her duty to preserve the inalienable rights of the subjects. The oath of allegiance prescribed by SS 1and 2,1
W&M 1688 bind the current members of Parliament not to derogate from the
Coronation oath.
124.
The contract between the subject People of Australia and the Monarch on the
Throne of the UK of GB, Queen Elizabeth II, was reconfirmed by the people of
Australia by way of the forced Referendum held on November 6 th
1999.
125.
The fact that we have contracted with the Queen of the United Kingdom of Great
Britain and Ireland
“for the time being”
, means that the legal requirements of the practical constitution go much further than what was superficially approved by the people of Australia in the referendum of 1900. The Sovereign of the United
Kingdom of Great Britain and Ireland is legally bound to abide by certain other previous perpetual and thus never ending contracts made by her predecessors with

her people. These include the Magna Carta of 1297 and the Bill of Rights 1688 (in as much as it does not contradict the Magna Carta of 1297).
126.
The Magna Carta clearly states that “The King will not directly or indirectly do anything whereby these concessions may be revoked or diminished”
. Since the sovereign’s consent is required to make or change any laws, the Magna Carta of
1297 is still binding on the British Sovereign today, regardless of whatever nonsense the present highly suspect legal profession may chose to teach.
Furthermore, the Magna Carta of 1297 authorises the people to even go so far as to make war on the Sovereign in his own realm while ever he fails to uphold the terms of the Magna Carta.
127.
The Magna Carta states that “We have granted also, and given to all free men of our realm, for us and our heirs for ever, these liberties underwritten, to have and to hold to them and their heirs, of us and our heirs for ever.
128.
Under these circumstances, any nation which contracts with a rightful heir or a lawful successor to the Sovereign of Great Britain and Ireland, also automatically acquires the full protection of the Magna Carta and the Bill of Rights 1688
129.
All acts to the extent that they purport to confer legislative power in derogation of the Sovereignty of the Queen – in - Parliament at Westminster are null and void.
The Government of Queensland and the Commonwealth of Australia are, to the extent which they claim Sovereignty, in derogation of the Queen -in -Parliament at
Westminster are de facto Governments and are therefore null and void, that is illegal and invalid.
130.
The Queensland government has the power to make rules and regulations for the peace, order and good government of the state. That is provided that the rules and regulations do not derogate from the Sovereignty of the Queen- in – Parliament at
Westminster and provided that the rules and regulations do not violate the inalienable constitutional Rights of the people of Australia.
131.
To obviate all doubts and difficulties concerning the above matters, it was expressly declared by S 12 & 13 Wm. 3, c.2, (Act of Settlement-1701) that
“the Laws of
England (now the UK of GB) are the birthright of the people thereof; and all the
Kings and Queens who shall ascend the THRONE OF THIS REALM, ought to administer the Government of the same according to the said Laws: and all their officers and ministers ought to serve them respectively according to the same: and therefore all the Laws and Statutes of this Realm, for securing the established religion, and the rights and liberties of the people thereof, and all other Laws and
Statutes of the same now in force, are ratified and confirmed accordingly”.
132.
All law has to be assented to by the reigning Monarch therefore guaranteeing no derogation from the Ancient Rights and Liberties enshrined in SS 1 & 2, 1 W&M
(1688) and the Holy scriptures.
133.
If the royal prerogative is used to pass an Act which purports to take away our rights, the judiciary are bound to take judicial notice of it and ignore

The Royal Prerogative
134.
The very beginning of the Constitution Act says we are "under the Crown" and the
Coronation Oath says that the Queen must govern Australia and "execute Law and
Justice with Mercy in all (Her) judgements".
135.
I contend that the Queen was misled by her ministers in giving the royal prerogative to Acts of Parliament that have infringed our liberties.
136.
"No prerogative may be recognised that is contrary to Magna Carta or any other statute, or that interferes with the liberties of the subject”.
137.
The courts have jurisdiction therefore, to enquire into the existence of any prerogative, it being a maxim of the common law that the King ought to be under no man, but under God and the law, because the law makes the King.
138.
If any prerogative is disputed, the Courts must decide the question of whether or not it exists in the same way as they decide any other question of law. If a prerogative is clearly established, they must take the same judicial notice of it as they take of any other rule of law.
139.
The original contract between the Crown and people can be determined using the common-law method for the interpretation of laws by reference to Parliamentary materials. This method of interpreting statutes was restored by the Judgement in the case of Pepper v. Hart (1992). It is required by the Attorney General's Practice
Directions of 1992.
140.
The fact that it is part of the common law, and therefore is not subject to arbitrary change by the Judiciary was recognised by Blackstone; "The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law".
141.
The will of the Convention Parliament which drafted the Bill in relation to the subject’s rights was indicated by Sir Robert Howard, a member of the Committee;
"The Rights of the people had been confirmed by early Kings both before and after the Norman line began. Accordingly, the people have always had the same title to their liberties and properties that England's Kings have unto their Crowns. The several Charters of the people's rights, most particularly Magna Carta, were not grants from the King, but recognition's by the King of rights that have been reserved or that appertained unto us by common law and immemorial custom."
142.
Crown servants, such as members of the Judiciary, cannot lawfully subvert the subject’s rights because they have only the same powers and privileges as the people. Any attempt to do so would be ultra vires, which means "beyond their power" and constitute the common law crime of "misconduct in office" .

143.
The case of R v Lord Chancellor ex parte Witham implies that acts of Parliament cannot repeal common law and our rights have fallen into abeyance through lack of a suitable challenge.
144.
Under our system of a constitutional Monarchy, any statute law which in violation of the common law and to the prejudice of the people is void and inoperable and should not be granted Royal assent or if it has (because ministers have misled the governor) should be disallowed by the Governor who took an oath of allegiance to the Queen
145.
The Judges oath of allegiance is to, "do right to all man according to law "- common law that is. He is further directed to take nothing intro consequence or example to the detriment of the subject's liberties (from the Bill of Rights)
146.
Rights granted by imperial enactment such as Magna Carta cannot be taken away or
“overridden” by Politicians or Judges. These rights are inalienable. It is just they are not enforced.
147.
It is stated in the CONFIRMATIO CARTARUM 1297 that:
1) The Magna Carta is the common law and that
2) The Magna Carta is the supreme law. All other contrary law and judgments are void.
148.
It contained the pledge that no free man should have his rights removed without the due process of law and the judgement of his peers. It is taken to be the foundation of the liberties of the citizen in the English-speaking world.
149.
"Here is a law which is above the King and which even he must not break. This reaffirmation of a supreme law and its expression in a general charter is the great work of Magna Carta; and this alone justifies the respect in which men have held it” . --Winston Churchill, 1956
150.
“Hence our …assertion is, that the King’s power of exponing the law is a mere ministerial power, and he hath no dominion of any absolute royal power to expone the law as he will, and to put such a sense and meaning of the law as he pleaseth.”
Rutherford. Lex, Rex. QXXXVII 3,2. And so, too, parliament, and the judiciary.
151.
Chapter 29 of the 1297 charter says:
"No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgement of his peers, or by the law of the land. We will sell to no man, We will not deny or defer to any man either justice or right." Edward 1 (1297) Magna Carta
152.
The law of the land does not just mean enacted statute law. It involves the high principles of the rule of law, due process of law, constitutional law, and the rules of natural justice.
153.
That fundamental principle is not repeated in the Australian Constitution, but it has been held by the courts that it is part of our inherited Constitutional law - see ex

parte Walsh v Johnson (1925) 37 CLR 79. There is certainly a presumption in favour of liberty.
154.
The Oxford Dictionary of Law (1990) defines justice as:
Justice: "A moral ideal that the law seeks to uphold in the protection of rights and the punishment of wrongs. Justice is not synonymous with law - it is possible for a law to be called unjust. However, English law closely identifies with justice and the word is frequently used in the legal system."
155.
So, if it is possible for the law of the land to be unjust then the Courts may be restricted to exactly what the law says even though that law may be an unjust law because the courts must exercise the will of the law makers. (ie parliament)
Therefore an unjust law may still be a valid law.
156.
But there are other words in that same sentence and that is the words "or right." So
"justice or right." Or denotes an alternative and right is defined as:
157.
Right: 1. Title to or an interest in any property. 2. Any other interest or privilege recognised and protected by law. Those are plain words with plain meanings.
158.
Therefore, there is an alternative. If a valid law can be unjust then your interests and privileges embodied in Magna Carta are recognised and protected by the word
“right”.
159.
So the lawful judgement of your peers, also in Magna Carta, may hold that while the law may be an unjust law, we are still entitled to be protected by right.
160.
Moreover, can there ever be an adequate justification for the state depriving any person of their constitutional rights?
161.
Lord Robin Cooke formerly President of the New Zealand Court of Appeal, in an extra-judicial paper entitled "Fundamentals" (NZLJ (1988) 164,165) says: 50. "On the other hand, if honesty compels one to admit that the concept of a free democracy must carry with it some limitation on legislative power, however generous, the focus of debate must shift. Then it becomes a matter of identifying the rights and freedoms that are implicit in the concept. They may be almost as few as they are vital...... One may have to accept that working out truly fundamental rights and duties is ultimately an inescapable judicial responsibility."
162.
Indeed, the United Nations Universal Declaration of Human Rights declares in the preamble: "Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human right should be protected by the rule of law."
163.
".....The rule of law." Not statutory law, Parliamentary sovereignty or otherwise but ,
"....the rule of law”.
I.e. the Courts. Furthermore, the Declaration expressly speaks of the fundamental human right. And that is exactly what this court case is about -
The Rule of Law, fundamental human rights, and the Royal Charter of Magna Carta taking precedence over a pretended Parliamentary sovereignty.

164.
No Parliament has the power to extinguish the right to trial by Jury, as it is an integral part of the Common law, which was assumed by and controls the constitution.
165.
Similarly Cap II of the Confirmatio Cartarum 1297 says that:-
“ and we will, that if any judgement is given from henceforth contrary to the points of the charters aforesaid by the Justices, or by any other offices that hold plea before them against the points of the Charters, they shall be undone and holden for nought”
166.
So the Confirmatio Cartarum further entrenches the rights granted in the Magna
Carta.
167.
The Bill of Rights 1688 is also doubly entrenched by the last paragraph that allows no method of alteration
“And bee it further declared and enacted by the Authoritie aforesaid That from and after this present Session of Parlyament noe Dispensation by Non obstante of or to any Statue or any part thereof shall be allowed but that the same shall be held void and of noe effect Except a Dispensation be allowed of in such Statue [and except in such Cases as shall be specially provided for by one or more Bill or Bills to be passed dureing this present session of Parlyament”
William and Mary Prince and
Princesse of Orange
168.
Trial by Jury is further mentioned in Section 3 of (1627) 3 Charles I. (Petition of
Right) It says: “and where also by the statute called, the Great Charter of the
Libertes of England, it is declared and enacted, that no freeman may be taken or imprisoned, or be disseised of his freehold, or his liberties or his free customs, or to be outlawed or exiled, or I any manner destroyed, but by the lawful judgement of his peers, or by the law of the land."
169.
And section 8 of this imperial enactment says:-
“that the awards, doings and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into any consequence or example”
170.
The role of the jury in the protection of liberty has been emphasised by numerous authorities
171.
Trial by Jury has been considered a fundamental safeguard of fairness and impartiality in the administration of Justice, especially of criminal justice. Jury trail stemmed from a deep seated conviction about the exercise of Judicial power, that it should not in matters affecting the liberty of the subject be entrusted unchecked to any official, judge or administrator but should be vested in ordinary citizens. The laws of Australia 21.6, part D, (38), pg 47
172.
In the case of Brown v The Queen the judges in the High Court emphasise the important role that trial by jury has in the administration of justice. On page 179
Chief Justice Gibbs said:
“The requirement that there should be trial by jury was not merely arbitrary and pointless. It must be inferred that the purpose of the section must be to protect the accused -- in other words, to provide the accused with a "safeguard against the corrupt or over-zealous prosecutor and against the

compliant, biased, or eccentric judge"
173.
He goes on to say:
“the jury is a bulwark of liberty, a protection against tyranny and arbitrary oppression, and an important means of securing a fair and impartial trial. It is true that the jury system is thought to have collateral advantages ( It involves ordinary members of the public in the judicial process and may make some decisions more acceptable to the public)” -
174.
This is a common theme in the High Court.
175.
Certainly the judges were very responsive to the idea that there shouldn't be two standards of courts in our country, arguing that to deprive people of a right to a trial by jury and still use the courts when you're doing that, could be impliedly prohibited from the constitution.
176.
Also
“The jury system is fundamental to the administration of the criminal law in
New Zealand. It has as its basis the quality of a collective decision made by a group of ordinary New Zealanders in accordance with their unanimous opinion on whether or not a prosecution brought on behalf of the community has been proved beyond reasonable doubt.”
(Eichelbaum Chief Justice, Greig Justice, Solicitor-
General v Radio NZ (1994) 1 NZLR 48,51.)
177.
I believe that no court has jurisdiction to conduct a trial against me unless it accords me my right to a trial by jury. Other cases without the accused allowed or being given the right to a trial by Jury cannot be held as precedents and cannot affect common law.
178.
The removal of Trial by Jury is illegal and is instituting a system of martial or military law. It is introducing a second class form of justice, one not subject to the people and subjects them to abject slavery.
179.
English Kings have been beheaded or deposed for that very usurpation of the people’s rights, and Parliaments, and individuals, have been bought to book for the same cause.
180.
Earl Grey, in 1831; on the attempted usurpation of prerogative by the House of
Lords said
:“.. But if a majority of this house is to have power, whenever they please, of opposing the declared and decided wishes of both of the Crown and the
People, without any means of modifying that power- then this country is placed entirely under the influence of an uncontrollable oligarchy. I say that, if a majority in this house should have the power of acting adversely to the crown and the
Commons, and was determined to exercise that power, without being liable to check or control, the constitution is completely altered, and the government of this country is not a limited monarchy … but … a separate oligarchy governing absolutely the others.” Hansard debates. 3
Rd
series xii 1006 (May 17 1832)
181.
During the Grand Remonstrance of 1641
“the commons denounced the court
(suzerain) conspiracy (inter alia) to subvert the fundamental laws and principles of
Government…”

182.
And in striking resemblance to contemporary times: “They have strained to blast our proceedings in parliament by wrestling the interpretations…from their genuine intention. They tell the people that our meddling (has caused schisms) when idolatrous….ceremonies…. have …. Debarred people from the Kingdom. Thus with
Elijah, we are called by this malignant party the troublers of the state, and still, while we endeavour to reform their abuses, they make us the authors of those mischiefs we study to prevent.”
Poole, 544-7 Eng. Const. Hist.
183.
Cokes observation was the same:
“The justices extended judicial censorship over legislative acts, and , in effect, adopted Cokes idea of the supremacy of the courts over the other departments of the Government in applying the general doctrine that constitutional grants of power were to be interpreted according to the maxims of
Magna Carta and the principles of the common law, and that the legislatures were limited by superior law, both express, and implied.” And so, too, the judiciary.
184.
“Thus the law of the land was judicially construed to mean that no power was delegated to the legislature to invade the great natural rights of the individual.”
Haines “Natural Law Concepts.”.
185.
“the underlying purpose of most of these limitations was to place the just principles of the common law … beyond the power of ordinary legislation to change or control them.”
Justice Miller, Pumpelly V Green Bay Co., 13 Wall 166, 177 (1871)
186.
However importantly, the Bill of Rights (1 Will & Mary sess 2 c 2 1689) demonstrated that the victors of the Revolution had sought to protect, not to change, the fundamentals of the constitution. The framers of that document were simply declaring law that already existed and would continue to exist. The preamble to the bill reads: "And thereupon the said Lords Spirituall and Temporal, and
Commons......do in the first place (as their ancestors in like cases have usually done) for the vindicating and asserting their ancient rights and liberties declare...."
187.
"Vindicating and Asserting?"
188.
Clearly, the intent and true meaning was not to abolish their ancient fundamental rights and liberties for a pretended parliamentary sovereignty which is generally believed and accepted today. They were vindicating and asserting them, and reclaiming them from a despotic King James II who had grievously violated them.
189.
Sir Robert Howard, a member of both Treby's and Somer's Rights Committee's, said during the Bill of Rights debate;- "Rights of the people had been confirmed by earlier Kings both before and after the Norman line began. Accordingly, the people have always had the same title to their liberties and properties that England's Kings have had unto their Crowns. The several Charters of the people's rights, most particularly Magna Carta, were not grants for the King, but recognition by the
King of rights that have been reserved or that appertained unto us by common law and immemorial custom."
190.
The intent throughout the debate was clear; - Reserved fundamental rights.

191.
The British Parliament has confirmed the continued existence of the Bill of Rights
(1688):
192.
The Judgement in Pepper v. Hart in 1993 was referred to in (UK) Parliament and caused The Speaker of the House of Commons to issue a reminder to the Courts and all other persons of their duty to take notice of the Bill of Rights, further confirming that it is an operative Statute. She said; "This case has exposed our proceedings to possible questioning in a way that was previously though to be impossible. There has of course been no amendment of the Bill of Rights ... I am sure that the House is entitled to expect that the Bill of Rights will be required to be fully respected by all those appearing before the Courts" (UK) Hansard, 21 July 1993.
Stare Decisis
193.
I believe that precedents opposed to Magna Carta and the Bill of Rights can be covered by the term stare decisis - a doctrine giving to precedent the authority of established law.
194.
However, Chief Justice Brandeis said in Di Santo v. Pennsylvania, 273 U.S. 34
(1927) 42 " Stare Decisis is not a universal inexorable command. It does not command that we err again when we have occasion to pass upon a different statute."
195.
A decision is not binding on a subsequent Court simply because it was made in the past. Courts are not bound as a matter of law by the doctrine of precedent. Some decisions are to be regarded as persuasive rather than strictly binding.
196.
I believe that it is necessary to distinguish the intent of the originators of Magna
Carta and the Bill of Rights in allowing freedoms, from subsequent decisions that may seem to limit those freedoms. Such a distinction would allow a more restrictive scope of interpretation of those precedents and laws. In such an important issue as trial by jury it is not unlikely that they got it wrong.
197.
Your Honour the Queen has sworn to God to uphold the Magna Carta. Judges have sworn to God and the Queen to uphold the Common law. I ask you to fulfil your oath to God and the Queen and give me my rights to a trial by Jury
HUMAN RIGHTS
198.
The High Court of Australia has already held that lack of representation in a trial for a serious criminal offence is likely to prejudice the right to a fair trial. Dietrich v R
(1992) 109 ALR 385
199.
An offence against the Weapons act is a criminal offence that affects my right to have weapons for the rest of my life. There may be a prison term involved. I have been refused legal aid and the HREOC has previously refused my applications.
200.
All gun owners who have refused to obey the New Gun Laws are all similarly disadvantaged in the refusal of legal aid to assist my case and the refusal of rights to trial by Jury and the refusal of the HREOC to act. The Gun laws have become a

case of Judicial co-operation in the enforcement of Parliamentary decrees. The
Judiciary is not seen to be independent nor just.
201.
That my arguments have been ignored in all previous courts indicates that I am unlikely to get a fair trial without legal representation.
202.
I am entitled to legal representation under the Federal Legislation of the Human
Rights and Equal Opportunity Commission Act of 1986 and the International
Covenant on Civil and Political Rights
203.
The International Covenant on Civil and Political Rights has been enacted into law as the Human Rights and Equal Opportunity Commission Act of 1986.
204.
The United Nations Universal Declaration of Human Rights declares in the preamble:
"Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human right should be protected by the rule of law."
205.
".....The rule of law." Not statutory law, Parliamentary sovereignty or otherwise but,
".... The rule of law ”. Ie. The Courts.
206.
Furthermore, the Declaration expressly speaks of the fundamental human right taking precedence over a pretended parliamentary sovereignty. Since Government has also ratified that UN Declaration, and the Parliament has not expressly repealed it, logically it follows that it must have intended to be taken seriously. (See R v
Immigration Appeal Tribunal, Ex Parte, Manshoora Bengum (1986) Imm AR 385
(QBD) Simon Brown J.)
207.
Since the laws of the Commonwealth apply to Queensland the Human Rights and
Equal opportunities Act applies to Queensland. Article 50 ICCPR. "The provisions of the present covenant shall extend to all parts of Federal states without any limitations or exceptions."
208.
Also Clause 5 of the Constitution Act UK says that all laws made by the Parliament of the Commonwealth are binding on the Court, Judges and People of every State not withstanding anything in the laws of any State.
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986
(Updated as at 26 September 1995) Section 3
209.
(4) In the definition of "human rights" in subsection (1): the reference to the rights and freedoms recognised in the Covenant shall be read as a reference to the rights and freedoms recognised in the Covenant as it applies to Australia; and the reference to the rights and freedoms recognised or declared by any relevant international instrument shall:
210.
in the case of an instrument (not being a declaration referred to in subparagraph (ii)) that applies to Australia - be read as a reference to the rights and freedoms recognised or declared by the instrument as it applies to Australia; or in the case of an instrument being a declaration made by an international organisation that was

adopted by Australia - be read as a reference to the rights and freedoms recognised or declared by the declaration as it was adopted by Australia.
211.
SCHEDULE 2, Section 3 INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTSPART II Article 14
212.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality; To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; To be tried without undue delay; To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
213.
Australia is a signatory and fully committed member of the United Nations and has undertaken to honour and obey the International Covenant on Civil and Political
Rights.
214.
In 1994 Nicholas Toonen of Tasmania Australia successfully complained that his
Human Rights were violated by the Tasmanian Criminal Code and the United
Nations Human Rights Commission in Geneva upheld his complaint and Tasmania agreed to repeal the offending legislation.
215.
My civil rights have been successively violated by the failure of the legal system in
Queensland to honour and uphold the principles outlined in the Human Rights and
Equal Opportunity Commission Act of 1986. Schedule 2.
216.
By Article 50 of the Human Rights and Equal Opportunity Commission Act of
1986. Schedule 2, Queensland is bound by the Covenant.
217.
The Violations that have occurred are,
218.
(a) In Part 2 Article 1, I have been discriminated against by Queensland Courts I have appeared before because I did not have legal representation. I am in a lower socio economic class than the State of Queensland which can afford the most expensive representation and was thereby denied equality of opportunity to receive justice.
219.
(b) In Article 2 Queensland and Australia has undertaken to promote equality of opportunity and Queensland has in place laws, Sections 51 and 243 of the Supreme
Court Act 1995 which recognise the equality of the said Martin Essenberg with
McPherson JA, Chesterman J, Boyce QC, Mr Smith SM and Mr Lebsanft SM and require those judicial persons to obtain the consent in writing to sit without a jury before they may make any binding order. This Right was violated on every occasion.

220.
(c) Article 5 (2) recognises the fundamental Human Right to be adjudged by a jury of ones peers unless consent to sit without is first had, as is the Civil Right of All
Queenslanders.
221.
(d) Article 7 is violated when Justice is delivered in a degrading way, without the consent of the litigant. It is Internationally accepted that it is not degrading to be adjudged by a jury of one's peers.
222.
In Mabo v Queensland [No. 2] , the High Court through Justice Brennan's leading judgment, held that it was proper for courts in Australia to have regard to international human rights jurisprudence in developing the common law and in resolving ambiguities of legislation. It was said that this was an inevitable process, once Australia signed the First Optional Protocol to the International Covenant on
Civil and Political Rights . This action rendered Australia accountable in the international community for breaches of fundamental rights
223.
Dietrich v The Queen . There it was held that, in certain circumstances, a prisoner facing a serious criminal charge, must be provided with legal counsel if to deprive him or her of such expert representation would render a trial unfair. Even more lately, the High Court has found constitutional rights implied in the Constitution.
Thus, the right to free public discussion of matters of politics and economics were found, in the Capital Television decision, to be inherent in the very nature of the
Australian representative democracy established by the Constitution.
224.
I believe the interests of Justice for myself and all other gun owners require that I have legal representation. The validity of the New Gun Laws needs to be tested properly as does the right of Parliament to further control and manipulate what goes to Juries and what does not. Due to lack of legal support this could not be done in my previous trials
The Australia Act
225.
In Essenberg v The Queen (B55/99) the respondents argument sought 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.
226.
The passages of the Australia Act 1986 through all Australian parliaments without dissenting voices were themselves without substance and void since they were in clear breach of our Australian Constitution on more than one fundamental ground.
227.
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 the High 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
228.
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.
229.
“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.
230.
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.
231.
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.
232.
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.
233.
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.
234.
In an American judgement of 1968 it was said
“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…”
235.
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
236.
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.
237.
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.
238.
“Legislatures cannot alter or undermine the constitutional scheme set up by
Chapter III”
per McHugh J Kable v DPP at page 29
239.
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
240.
The corollaries are that the very pillars, upon which our system of Justice is based, cannot be legislated away.
241.
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.
242.
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.
243.
Therefore the learned Judges of the lower courts fell into jurisdictional error by not pausing to ascertain the true status of their guiding principle.
244.
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).
245.
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

246.
The word, "Prejudicial" means harmful to rights or interests, and I say for this trial to continue in a summary manner will be harmful to my rights and interests.
247.
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.
248.
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". (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
249.
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. (11- Queensland statutes 1828-
1962 Vol 3 p 221)
250.
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 honours 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
Magistrates Court at Kingaroy and tends to be provocative of Judicial review.
251.
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.

252.
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.
253.
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.
254.
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.
255.
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.
256.
However it is the assertions contained in Chestermans J judgement in regard to Sir
Edward Cokes Commentaries that invite some address in detail.
257.
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 the High Court.
258.
Much discussion, both historical and legal has been had re The Colonial Laws
Validity Act, 1865. However, the general view that this Act limited the scope of
Colonial Legislatures to make laws repugnant to English laws is only partially correct.
There are two types of English law. One, is Common Law. This 1865 Act did not restrict the colonial (later States & Commonwealth, a colony by interpretation) governments & courts creating common law unique to each one’s area ie. each colony (State) and Australia.
Two, is Statute Law which arise from Bills passed in the Imperial Parliament and assented to by the Crown.
However, there were three types of Statute Law of the Imperial Parliament:-
I ) Statute Law that extends to the colonies ;
II ) Statute Law that is operative throughout the Empire ;
III ) Other Statute Laws applicable to Great Britain.

The differentiation between these types of Statute Laws is of critical importance.
The vagaries of the interpretation of the validity of a law of a colonial legislature, meant by the middle of the nineteenth century (1850’s), great confusion and as to the extent of the prohibition and vague limitations led to the Colonial Laws Validity
Act, 1865 which restricted the prohibition.
“Sec. 2 of that Act declares that any colonial law which is in respect repugnant to an Act of the Imperial Parliament extending to the colony (which is defined to mean ‘applicable to such colony by the express words or necessary intendment of any Act of Parliament) or repugnant to any order or regulation made under any such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be absolutely void”.
Sec. 3 provides that no colonial law shall be void on the grounds of repugnancy to the law of
England unless it is repugnant to some such Act of Parliament, order, or regulation as aforesaid.
When this Act was passed, it was not regarded as a curtailment of legislative power in the colonies; it took away no power previously enjoyed; in fact, looked upon as one of the charters of colonial legislative independence, next in importance to the famous Declaratory Act, 18 [1778] Geo. III. c. 12, in which the British
Parliament, profiting by the lessons of the American rebellion, renounced its intention to again tax the colonies. It removed all doubts as to the powers of colonial Legislatures to alter or repeal the general mass of English law, ........ .....not made operative, by Statute, throughout the Empire. .......” [Quick & Garran, p
348]*
259.
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:
260.
“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”
261.
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.
262.
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”
263.
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.
264.
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.
265.
The 1931 Westminster Act only reaffirmed that the UK parliament would not legislate for Australia .
266.
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 (in Essenberg V the Queen in the High Court) claim that the weapons act of Queensland is
“a law validly made by the Parliament of the State of Queensland”
267.
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.
268.
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.
269.
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.
270.
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.
271.
That by reason of all the above it is not validly enacted, nor is it, in se, valid law.

272.
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
273.
“ 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
274.
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.
275.
And from elsewhere “ for it is common knowledge that the intention of a man will not be probed…”
Bryan CJ YB 17 Edward IV
276.
“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.
277.
The preceding 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?”
278.
And by Lord Hewitt CJ in Cotterill v Pema (1936) 1 KB 63 and others. “Actus non facit reum nisi sit mens re is a cardinal doctrine of the criminal law”
per Lord
Goddard CJ, Younghusband v Lustig (1949) 2 KB 354
279.
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
280.
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”

281.
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”
282.
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.
283.
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)
284.
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 predetermination 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.
285.
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.
286.
In the words of McHugh J in the High 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”
287.
The provisions of the Act so far cited do not maintain judicial independence, but on the contrary seek to appropriate it.
288.
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.
289.
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)
290.
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.
291.
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.
292.
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.
293.
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)
294.
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.
295.
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.
296.
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).
297.
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.
298.
It makes a mockery of due process and of Australian democracy.
299.
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.
300.
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
301.
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 prosecution view that I am flaunting the law is not appropriate.
302.
The Weapons Act 1990 discriminates against country people. It imposes the will of a city majority upon a country minority. The 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.
Summary
303.
I ask you to decline to recognise as valid, laws that conflict with long standing fundamentals of constitutional and fundamental rights contained in Magna Carta and the Bill of Rights.
304.
I ask that you declare the Weapons Act 1996 invalid or my case should be done by a trial by Jury in accordance with due process of law under normal rules of evidence.
305.
I ask that you make a statement on my rights to legal representation under the
Human Rights and Equal Opportunity Commission Act 1986

Martin Essenberg Lot 7 Runnymede Est Rd, Nanango.
Dated the 14 day of December 2000