AustralianPlanet: Australia's search engine Nicholas N Chin v Legal Practice Board of WA: CURRENT AUSTRALIAN GOVERNMENT HAS NO LEGAL BASIS BY SIR HARRY GIBBS, THE FORMER HIGH COURT JUDGE

Nicholas N Chin v Legal Practice Board of WA

Courts not to avoid the litigation of three issues so that justice is seen to be done: 1) Pseudo Board 2) Pillaging by solicitor with a zero sum false debt claim. 3) Recognition of the falsification of court records This Gordian Knot will free me for independent law practice again

Thursday, July 19, 2012

CURRENT AUSTRALIAN GOVERNMENT HAS NO LEGAL BASIS BY SIR HARRY GIBBS, THE FORMER HIGH COURT JUDGE


The Right Honourable Sir Harry Gibbs GCMGACKBEQC                                     
In office - 12 February 1981 – 5 February 1987
Nominated by -  Malcolm Fraser
Appointed by - Zelman Cowen
Preceded by - Sir Garfield Barwick
Succeeded by - Sir Anthony Mason

In office - 4 August 1970 – 12 February 1981
                                            Appointed by - John Gorton
                                            Preceded by - Sir Frank Kitto
                                        Succeeded by - Sir Gerard Brennan

                                                        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 principlesFirst, 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].  

justice hayne  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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