Public Law Update - Good News! Victorian Supreme Court is NOT an "unlawful court"

Public Law
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Appeal Justice Beach has dismissed an application to appeal out of time on the basis that the application was "totally without merit".

In Sill v City of Wodonga [2018] VSCA 195 the applicant ran a series of novel arguments in aid of his attempt to overturn a $389 infringement notice issued for his failure to pay a $22.50 annual dog licence.

The catchwords of his Honour's reasons capture the essential arguments advanced:

CONSTITUTIONAL LAW – Appeal – Validity of Commonwealth and State Acts – Whether Supreme Court of Victoria is an unlawful court – Whether Queen of Australia exists – Whether  Constitution  Act 1975 (Vic) validly enacted – Whether oath of allegiance unlawful or invalid – Validity of the appointment of Governors of Victoria – Whether enactments treasonous – Applicant’s arguments without merit.

His Honour carefully set out the various arguments advanced by the applicant before the trial Judge (Ginnane J) and provided the following pithy summary at [2]:

From these modest beginnings, the issues in dispute between the parties multiplied. In the course of his journey to this Court, the applicant has raised issues concerning the constitutionality of various State and Commonwealth Acts, the validity of the appointments of certain state governors (including the present governor), allegations of treason and assertions that various courts are either unlawful, unconstitutional, illegal or star chambers.

Of course, no such case would be complete without reliance on the Magna Carta and the 1688 Bill of Rights. His Honour noted at [10]:

Similarly, when confronted with authority that was at least arguably inconsistent with the maintenance of one of the applicant’s argument, the applicant sought to contend that the relevant decision was unlawful, or the court was unconstitutional or otherwise lacked validity. So, for example, when the judge raised with the applicant the decision of Hayne J in  Rutledge v The State of Victoria as authority for the proposition that the Bill for the  Constitution  Act 1975 was assented to in accordance with law (and the Act was therefore valid), the applicant said:

"With Rutledge, it was a single court judge, therefore it was a star chamber. ...

A High Court judge, if he says it, doesn’t necessarily have to be correct because we have also got the evidence we have got under the Constitution may not have been put to him because if it was, he couldn’t make that presumption and obviously he rode over the top of that, made the decision, and as I said, in an unlawful court, it doesn’t matter if it’s the High Court or a Magistrates’ Court, if it’s a single court judge, under the  Magna Carta, the 1688 Bill of Rights, all says that a single court judge or a star chamber is unlawful."

In the final analysis his Honour found no error in Ginnane J's decision and said this at [20] - [22]:

Ginnane J was plainly correct when he refused the applicant’s application for an extension of time within which to appeal from the Magistrate’s Court and then dismissed the applicant’s proceeding. There was and is no substance in any of the applicant’s points.  Each of the various State and Commonwealth Acts that the applicant seeks to impugn as unlawful and treasonous are valid enactments for the reasons given by his Honour. The judge was correct to conclude that none of the applicant’s arguments were reasonably arguable or had any real prospect of success. The judge’s reliance upon Hayne J’s decision in  Rutledge and the operation of  s 143 of the Evidence Act 2008 is unimpeachable. The same should be said of the balance of the judge’s reasons.

Contrary to the applicant’s submissions,  s 143(1) of the  Evidence Act is not unconstitutional. As the judge observed, the section precludes arguments of the kind made by the applicant which have as their foundation a requirement for proof of the existence of the Act or its coming into operation. The section does not preclude the taking of legitimate arguments about the constitutionality of a particular statutory provision. Arguments, however, about whether there exists a copy of an Act ‘bearing a “wet ink signature of the Governor and a wet ink signature with the Royal Seal of Her Royal Majesty Queen Elizabeth the Second” ’ (whatever that might mean) are precluded. The judge was undoubtedly correct when, having considered all of the applicant’s arguments, he said that the applicant had failed to establish the invalidity of any relevant legislation or appointment.

In addition to the very thorough reasons given by the judge for making the orders he made, one might also observe that the applicant’s arguments premised upon the non-existence of the Queen of Australia are totally without merit, flying as they do in the face of the High Court’s decisions in  Pochi v Macphee and Nolan v Minister for Immigration and Ethnic Affairs. As was observed by Gibbs CJ in  Pochi, ‘the allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia’. As was observed by the plurality in  Nolan, the words ‘subject of the Queen’ in the Constitution, should be treated as referring, ‘in a modern context, to a subject of the Queen in right of Australia: cf  Royal Style and Titles Act 1973 (Cth)’. Put bluntly, Australian citizens owe allegiance to the Queen of Australia, not the Queen of the United Kingdom.

This decision is a very enjoyable read and I commend it to you.

Michael Wise Headshot
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Michael Wise QC practises in commercial law and intellectual property law

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