CURRENT AUSTRALIAN GOVERNMENT HAS NO LEGAL BASIS BY SIR HARRY GIBBS, THE FORMER HIGH COURT JUDGE
In office - 12 February 1981 – 5 February 1987
In office - 4 August 1970 – 12 February 1981
Personal details
Born 7 February 1917
Died 25 June 2005
Nationality Australian
Sir Harry Gibbs On the Australian Constitutional Crisis
EXPLANATORY STATEMENT
I am a former member of the High Court and I
wish to take this unusual method of informing you about a matter that is going
to deeply affect us all. Unfortunately, a document such as this is too easily
"lost" in the bureaucratic jungle in which we operate.
A group of Australian Citizens have taken it
upon themselves to test the validity of our current political and judicial
system. Like you, I have lived my entire legal career with the assumption that
the basis for our legal and political system, state and federal, was written in
stone. This group has undertaken to present this paper when they test the legal
system.
The group is articulate, well educated and
counts some of our best legal minds amongst its members. One of Australia's
best known barristers is one of the group’s leading lights. It is far better
informed with regard to international law than most members of the judiciary or
for that matter, the legal academe. It has better international contacts than I
would have thought possible.
After spending some time with the group leader,
I was able to elicit its primary intentions. It is the introduction of a
totally democratic system of government devoid of party politics operated by
the will of the people incorporating a system of debit taxation which should go
a long way to eliminating the current unemployment problem and also addressing
other pressing social issues. An A.B.S. financial model supports the proposal.
The group has so far
concentrated on matters relating to taxation, state and federal, minor
industrial and motor traffic while undertaking not to present a criminal
defence using their current presentation. I challenged the leader of this group
to present any evidence he had with regard to the above defence so I could use
my legal expertise to play the part of the devil's advocate. It should be
brought to your attention that the group has access to documentation that we
members of the judiciary have little knowledge. I refer to the British
Parliamentary Papers for the Colony of Australia for the years 1860 through to
1922.
These are photocopies of all documents
correspondence etc., between the states and later the Commonwealth of
Australia, the British Crown and the British Government. They are very
revealing documents and indicate the degree of chicanery in which the
politicians of all shades were involved and as I can now see, at the expense of
the legal academe and the judiciary. I present for your perusal the details of
the group's presentation along with my comment on each major item. The group
relies solely upon historical fact and rejects political rhetoric and legal
opinion unless based upon historical fact.
1. "The Commonwealth of Australia
Constitution Act 1900 (UK) is an act of the parliament of the United Kingdom.
It did not contain any substance of sovereignty and was a colonial act
centralising self-government of the six Australian Colonies. Australia remained
a colony of the United Kingdom."
1a. although the late Lionel Murphy attempted to
show that there was an element of sovereignty in this act he failed. The
international definition of sovereignty has been espoused at length and the above
Act although important in the development of
Australia, did not have the authority of sovereignty. The historical evidence
that Australia remained a British Colony post 1901 is overwhelming.
2. “Australia made an international declaration of its
intention to become a sovereign nation when Prime Minister Hughes and his
deputy; Sir Joseph Cook signed the Treaty of Versailles on June 28, 1919. On
its cognisance of signing this treaty, Australia was granted a “C” class League
of Nations mandate over former German territories in the Pacific. In effect,
Papua New Guinea became a colony of Australia achieving its own independence on
16 September 1975. The League of Nations became part of International Law on 10
January 1920 with Article X of the Covenant of League of Nations guaranteeing
the sovereignty of each member,”
2A. The Significance of Australia joining the
League of Nations as a foundation member has never been addressed in Australia
before. Strangely, only one book has ever examined the question of Australian
independence. Written by W. J. Hudson and M. P. Sharp in 1988 "Australian
Independence" printed by Melbourne University Press: As both were members
of the Department of Foreign Affairs and Trade at the time of authorship and
had access to the, British Parliamentary Papers, I find it most interesting
they have avoided any mention of these papers in their book. Their conclusion
that Australia became an independent nation via. the Statute of Westminster in
1931 flies in the face of contradictory evidence within the above mentioned
papers and readily available historical fact.
Prime Minister Hughes address to the
Commonwealth Parliament on 10 September 1919, “Australia has now entered into a
family of nations on a footing of equality. Australia has been born in a blood
sacrifice." demonstrates the politicians of the day were only too well
aware of the change of status from a colony to that of sovereign nation while
attempting to remain within the Empire.
Prime Minister Bruce made
this reply to the British Government in 1922 after a request for troops against
Kernel Ataturk in the Chanak crisis. Bruce’s reply is contained in the British
Parliamentary Papers: “We have to try to ensure there shall be an Empire
foreign policy which if we are to be in anyway responsible for it, must be one
to which we agree and have assented. If we are to take any responsibility for
the Empire's foreign policy, there must be a better system, so that we may be
consulted and have a better opportunity to express the views of the people of
this country. We cannot blindly submit to any policy which may involve us in
war." This is a far cry from the declaration of war against Germany made
on behalf of the British Colony of Australia by George V of the United Kingdom
in 1914.
I have re-produced Bruce's reply in full as I
believe this reply contains clear historical evidence of a Prime Minister who
was well aware of the change of status from a. colony to a sovereign nation.
The later Statute of Westminster 1931 was an acknowledgment of that status.
3. "Paragraph
4 of the Statue of Westminster Act 1931 contravenes Article X of the Covenant
of the League of Nations. Paragraph 1 of the Australia Act 1986 contravenes
Article 2 paragraphs 1 and 4 of the Charter of the United Nations."
3A Paragraph 4 of the Statute of
Westminster reads "No Act of Parliament of the United. Kingdom passed
after the commencement of this Act shall extend, or be deemed to extend, to a
Dominion as part of the law of that
Dominion, unless it is expressly declared in that Act that Dominion, has
requested, and consented to the enactment thereof." Paragraph 1 of the
Australia Act is very similar: “No Act of the Parliament of the United Kingdom
passed after the commencement of this Act shall extend, or be deemed to extend,
to the Commonwealth, to a State or Territory as part of the law of the
Commonwealth, of the State or of the Territory."
I passed this one to the
Federal Attorney General and asked him what was the source of this quite
incredible authority that sought to overturn the authority legislated within
the Covenant of the League of Nations in Article X and the Charter of the
United Nations in Article 2 paragraphs 1 and 4. He is unable to provide any
documentation to support these clauses, Article X of the Covenant of the League
of Nations states: “The members of the League undertake to respect and preserve
against external aggression the territorial integrity and existing political
independence of all Members of the League. In case of any such aggression or in
case of any threat or danger of such aggression, the Council shall advise upon
the means by which this obligation shall be fulfilled."
It is appropriate that I now introduce a
statement by Sir Geoffrey Butler KBE, MA and Fellow, Librarian and Lecturer in
International Law and Diplomacy of Corpus Christi College, Cambridge author of
“A Handbook to-the League of Nations" used as a reference to the League by
virtually all nations at that time. He refers to Article 1 of the Covenant of
the League of Nations.
"It is arguable that this article is the
Covenant's most significant single measure. By it the British Dominions, namely
New Zealand, Australia, South Africa, and Canada, have their independent
nationhood established for the first time. There may be friction over small
matters in giving effect to this internationally acknowledged fact but the
Dominions will always look to the League of Nations Covenant as their
Declaration of Independence.
Article 2 paragraph 1 of the United Nation’s
Charter states "The Organisation is based on the principle of the
sovereign equality of all its Members."
Article 2 paragraph 4 of the Charter states ‘All
members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United
Nations."
In view of the above, the historical evidence
for Australian Independence by 10 January 1920 when the League of Nations
became part of International Law is overwhelming. When this evidence is
reinforced with the contents of the Charter of the United Nations, the
continued usage of any legislation that owes its very legitimacy to the
parliament of an acknowledged foreign power cannot be supported by either legal
opinion or indeed historical evidence.
I
therefore have come to the conclusion that the current legal and political
system in use in Australia and its States and Territories has no basis in law.
Following discussions with members of the
British Government relating to the Letters Patent for the Governor General and
State Governors I find that these documents no longer have any authority.
Indeed, the Queen of the United, Kingdom is
excluded from any position of power in Australia by the United Nations Charter
and is excluded under UK law from the issue of a Letters Patent to other than a
British Subject. A Letters Patent must refer to an action to be
taken with regard to British Citizens. The Immigration Act 1972 UK defines
Australian Citizen as aliens.
The Governor General’s
Letters Patent is a comedy of errors. We are greeted in the name of the Queen
of Australia who suddenly becomes the Queen of the United Kingdom in the next
paragraph of the Letters Patent. This Queen the gives instructions to the
Governor General with reference to the Commonwealth of Australia Constitution
Act 1900 UK. Here we have a clear breach of Article 2 paragraph 1 of the United
Nation Charter. Under both UK and international law, the-Queen is a British
Citizen.
State Governors are in a worse position as their
authority comes from the late Queen Victoria of the United Kingdom. Regardless
of the validity of the Commonwealth of Australia Constitution Act 1900 UK, if
the authority of Governor General and the State Governors is invalid then so is
the entire political and legal system of government.
When advised that the War
Crimes Commission was taking an interest, I called them in Geneva. Under the
1947 Geneva Convention, they are empowered to look into cases here in Australia
where it is alleged the law of a foreign country was enforced against a citizen
of a member state of the United Nations. As they perceive that only the
judiciary can actually enforce the law, the judiciary becomes their target. The
group has already placed cases before them which they are currently
investigating. If found guilty, the penalties are horrific and include the
death penalty!
I could go on with more relevant information
however I think now is the time for a summary. The group leader, a QC, states
the obvious when he asked me how could a colony now acknowledged by all world
nations to be a sovereign Nation retain exactly the same legal and political
system it enjoyed as a colony without any change whatsoever to the basis for
law. This point alone requires an answer.
The High Court has already
answered with regard to the position held by treaties signed by the
Commonwealth Government in the Teoh case of 1994. "Ordinary people have
the right to expect government officials to consider Australia's international
obligations even if those obligations are not reflected in specific Acts of
Parliament: the rights recognised in international treaties are an implied
limit on executive processes."
My advice
is to adjourn any case "sine die" that that challenges the authority
of the Letters Patent. Under no circumstances hear a case that challenges the
validity of a State or the Federal Constitution. It is the politicians who are
using us as pawns without them having to face the music. These matters are of
concern to politicians, let them sort out these problems and accept any
inherent risks themselves!
Article
36 of the Statute of the International Court of Justice is the correct
reference for you to refuse to hear a matter when an international treaty is
cited as a defence.
HIGH COURT OF AUSTRALIA
HAYNE J
21
December 1998
M65/1998
1
"Sovereignty" is a
concept that legal scholars have spent much time examining. It is a word that is sometimes used to refer
to very different legal concepts and for that reason alone, care must be taken
to identify how it is being used.
H L A Hart said of the idea of sovereignty that[1]:
"It
is worth observing that an uncritical use of the idea of sovereignty has spread
similar confusion in the theory both of municipal and international law, and
demands in both a similar corrective.
Under its influence, we are led to believe that there must in
every municipal legal system be a sovereign legislator subject to no legal
limitations; just as we are led to believe that international law must
be of a certain character because states are sovereign and incapable of legal
limitation save by themselves. In both
cases, belief in the necessary existence of the legally unlimited sovereign
prejudges a question which we can only answer when we examine the actual
rules. The question for municipal law is: what is the extent of the supreme legislative
authority recognised in this system? For
international law it is: what is the
maximum area of autonomy which the rules allow to states?"
For present purposes, what is critical is: what is the extent of the supreme legislative
authority recognised in this system and what are the rules for recognising what
are its valid laws[2]?
2
When
one examines the history of Australia since 1788 it is possible to identify the
emergence of what is now a sovereign and independent nation. Opinions will differ about when sovereignty
or independence was attained[3]. Some steps along that way are of particular
importance - not least the people of the colonies agreeing "to unite in
one indissoluble Federal Commonwealth under the Crown of the United Kingdom of
Great Britain and Ireland, and under the Constitution"[4]. But when it is said that Australia is now a
"sovereign and independent nation" the statement is in part a
statement about politics and in part about what Stephen J in China Ocean
Shipping Co v South Australia[5]
called "the realities of the relationship this century between
the United Kingdom and Australia".
What those realities were in 1900 can be gauged from the fact that the
delegates negotiating with the Imperial authorities in 1900 about the terms in
which the Imperial Parliament was to enact the Constitution were well content
to seek to persuade the Colonial Office that the "Commonwealth appears to
the Delegates to be clearly a 'Colony'"[6]. As the century moved on, further attention
was given to the place of Imperial legislation in the self‑governing
dominions. The
Imperial Parliament enacted the Statute of Westminster in 1931 but it
was not until 1942 that the Commonwealth Parliament enacted legislation
adopting the Statute of Westminster[7]. And then in 1986 the Australia Acts were passed. All these Acts deal with the place of
Imperial legislation in Australia. Each
can be seen as reflecting the then current view of the relationship between
Australia and the United Kingdom. In
large part, then, each deals with an aspect of political sovereignty.
3
Similarly, the way in which Australia has engaged in
international dealings can be seen to have changed since federation. And it may be that the Treaty of Versailles
or some other international instrument can be seen as according Australia a
place in international dealings which it may not have had before the instrument
was signed. But what is significant for the disposition of the present
applications is not whether the Westminster Parliament could now, or at some
earlier time might have been expected to, pass legislation having effect in
Australia. Neither is it whether
Australia is treated by the international community as having a particular
status. The immediate question is what law is to be applied in the courts of
Australia. The former questions about
the likelihood of Imperial legislation and of international status can be seen
as reflecting on whether Australia is an independent and sovereign nation. But they do so in two ways: whether some other polity can or would seek
to legislate for this country and whether Australia is treated internationally
as having the attributes of sovereignty.
Those are not questions that intrude upon the immediate issue of the
administration of justice according to law in the courts of Australia. In particular, they do not intrude upon the
question of what law is to be applied by the courts.
4
That
question is resolved by covering cl 5 of the Constitution. It provides:
"This Act, and all laws
made by the Parliament of the Commonwealth under the Constitution, shall be
binding on the courts, judges, and people of every State and of every part of
the Commonwealth, notwithstanding anything in the laws of any State".
It is, then, to the
Constitution and to laws made by the Parliament of the Commonwealth under the
Constitution that the courts must look.
And necessarily, of course, that will include laws made by the States
whose Constitutions are continued, the powers of whose parliaments are
continued, and the existing laws of which were continued (subject, in each
case, of course, to the Constitution) by ss 106, 107 and 108 of the
Constitution. It
is not relevant to the inquiry required by covering cl 5 to inquire how
Australia has been treated by other nations in its dealings with them or to inquire
whether the Westminster Parliament could or could not pass legislation that has
effect in Australia. Covering cl 5 provides that the
Constitution and the laws made by the Parliament of the Commonwealth under the
Constitution are binding on the courts, judges, and people of every State and
of every part of the Commonwealth.
None of the points that the applicants seek to make touches the validity
of any of the laws that are in question or would make those laws any the less
binding on the courts, judges, and people.
5
As I have noted earlier, the second of the three themes
identified by the applicants relies on the Royal Style and Titles Act. As I understand it, the principal burden of
the argument is that an Act of Parliament, changing the style or title by which
the Queen is to be known in Australia, worked a fundamental constitutional
change. The fact is, it did not.
So far as Commonwealth legislation is concerned, it is ss 58, 59
and 60 of the Constitution that deal with the ways in which the Royal Assent
may be given to bills passed by the other elements of the Federal
Parliament. So far as now relevant,
s 58 governs. It provides that the Governor‑General
"shall declare, according to his discretion, but subject to this
Constitution, that he assents in the Queen's name". And there is no material that would suggest
that has not been done in the case of each Commonwealth Act that now is
challenged.
6
The third element in the submissions made by the
applicants, and the one to which greatest significance was given in oral
argument, asserts that significance is to be attached to certain of Australia's
international dealings. These
contentions fail to take account of certain basic principles. First, provisions of an
international treaty to which Australia is a party do not form part of domestic
law unless incorporated by statute[8]. It follows that what one of the applicants
referred to as various human rights instruments do not of themselves give
rights to or impose obligations on persons in Australia. Similarly, the Charter of the United Nations
does not have the force of law in Australia[9]. Next, in so far as this limb of the argument
sought to make some point about "sovereignty" it is again necessary to note the distinction
between sovereignty in international law and sovereignty in the sense described
by Hart as "the supreme legislative authority recognised in this
system"[10]. The points which the applicants seek to make
are points touching the first of these matters, not the second. It is the second that is the critical
question in the courts and it is the second that is resolved by having regard to
covering cl 5.
7
Lastly, it is necessary to deal with the contentions about
the Commonwealth Electoral Act.
These contentions depend entirely upon acceptance of one or other of
what I have earlier called the three main themes of argument. Because I consider that they are not arguable,
no separate question arises about the Commonwealth Electoral Act. Nevertheless, it may be noted that it was
established very early in the life of the federation that if there are any
defects in the election of a member of a house of the Parliament the proceedings
of that house are not invalidated by the presence of a member without title[11].
Kenneth Madison Hayne AC was appointed to the
Court in September 1997. At the time of his appointment he was a judge of the
Victorian Court of Appeal, having been appointed one of the foundation judges
of that Court in 1995. He graduated in arts and law from the University of
Melbourne. He was Victoria’s Rhodes Scholar in 1969 and graduated as a Bachelor
of Civil Law from Oxford University.
He joined the Victorian Bar in 1971, and
was appointed a Queen’s Counsel in 1984. He practised in State and federal
courts principally in commercial, constitutional and general civil matters. He
was appointed a judge of the Victorian Supreme Court in 1992. Justice Hayne AC
was appointed a Companion in the General Division of the Order of Australia in
2002.
8
[1] H L A Hart, The
Concept of Law, (1961) at 218. See
also Wade, "The Basis of Legal Sovereignty", (1955) 13 Cambridge
Law Journal 172; Heuston, "Sovereignty", in Guest (ed), Oxford
Essays in Jurisprudence, (1961) at 198-222; Winterton, "The British
Grundnorm: Parliamentary Supremacy
Re-examined", (1976) 92 Law Quarterly Review 591.
[2] Hart, The Concept of
Law, (1961) at 97-120.
[3] China Ocean Shipping
Co v South Australia (1979) 145 CLR 172 at 181 per Barwick CJ, 194 per
Gibbs J, 208-214 per Stephen J, 240 per Aickin J; Nolan v
Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 184 per
Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ, 191-192 per
Gaudron J.
[4] Constitution - Preamble.
[5] (1979) 145 CLR 172 at
209.
[6] Quick and Garran, Annotated
Constitution of the Australian Commonwealth, (1901) at 352.
[7] Statute of Westminster
Adoption Act 1942 (Cth).
[8] Minister for
Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Victoria v The
Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at
480‑481 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.
[9] Bradley v The
Commonwealth (1973) 128 CLR 557 at 582 per Barwick CJ and
Gibbs J.
[10] Hart, The Concept of
Law, (1961) at 218.
[11] Vardon v O'Loghlin (1907)
5 CLR 201 at 208 per Griffith CJ, Barton and Higgins JJ.
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