Indicia

'Fraud, Trusts and Trusting: Enforcing Crown Forfeitures in Equity, c.1570–1620' by David Foster in (2023) The Journal of Legal History comments 

Conveyances with informal agreements to hold for the benefit of the transferor initially proved efficacious in avoiding statutory forfeiture provisions. In the late sixteenth century, the equity side of the Exchequer developed a capacious doctrine of revenue fraud designed to capture such informal arrangements and to subject the transferor to liability for crown forfeitures. Initially drawing inspiration from the ‘badges of fraud’ in the Statute of Fraudulent Conveyances 1571, the Exchequer quickly lowered the evidentiary threshold required to prove a conveyance fraudulent. A key badge of fraud was an ‘entrusting’ of the transferee by the transferor. The presence of a conveyance ‘in trust’ eventually became the sole evidence required to hold certain conveyances fraudulent under the statute. In the longer term, these cases became the precedential basis for holding the beneficiary’s right under a trust liable to forfeiture as a matter of doctrine. 

Those who expected to find themselves liable to crown forfeitures might take steps to conceal their property in the name of another. From the medieval period, statutory forfeiture provisions had been passed to capture property hidden by means of a use or trust, but these provisions proved difficult to enforce where property was conveyed subject to an informal agreement to reconvey or to hold ‘in trust’ for the transferor. Notwithstanding the succession of statutes designed to prevent the avoidance of legal rights by feoffments to uses, we find in the preamble to the Statute of Uses 1536 the continuing complaint that, by uses, ‘the king’s highness hath lost the profits and advantages of the lands of persons attainted’.  From the late sixteenth century, the case law increasingly focused on so-called ‘fraudulent conveyances’ which had the effect of defeating the crown of its forfeitures. The expansive approach to fraud adopted on the equity side of the Exchequer proved effective in protecting crown revenues flowing from forfeitures. Litigation touching fraudulent conveyances made ‘in trust’ arose in the context of forfeitures for outlawry, recusancy, departure from the realm without licence, and treason. By the second decade of the seventeenth century, the case law had coalesced into a relatively stable body of rules governing crown rights in equity. 

This article considers the case law in the period c.1570–1620 and the emergence of clear principles governing crown forfeitures on the equity side of the Exchequer. As we shall see, references in the cases to ‘conveyances in trust’ left ambiguous the technical form of the disputed conveyance; whether a mere informal ‘entrusting’ or a more formally drafted ‘trust’ in the form of an active use or use upon a use.The fluidity of the language of trusts and trusting would prove fertile ground for subsequent developments – particularly as later jurists came to regard these early cases as determining the incidents of the beneficiary’s right under a trust.

Interregnum and Treason

Tracy Neal of the NZ Herald reports - under 'Court action follows Tasman couple’s refusal to pay rates based on 1649 proclamation' (5 July) - on a pseudolaw argument by Robert (Dave) and Janis (Jan) Richardson in refusing to pay rates. 

The Richardsons modestly argue the Local Government Rating Act 2002 (NZ) is invalid because “all statutes in New Zealand were Ultra Vires” (unlawful) and that the court has no jurisdiction, thus providing a letter stating “Thank you for your invitation to appear in court but we decline your offer”. The couple designated the land as allodial, reportedly claiming absolute ownership of the land and not being bound by any law. 

The Herald reports 

The Richardsons claimed in a letter sent to the council’s rates team in December, which was read out in court, that on January 30, 1649 – the day on which Charles I was beheaded in the Tower of London, an Act of Parliament was passed “prohibiting the proclamation of any person as King of England, Ireland or the Dominions”. 

I note that Charles was not beheaded in the Tower.

The Richardsons reportedly believe that the Act mean every monarch proclaimed after the execution of Charles I was “a traitor to the Parliament of England and subsequently New Zealand”. On that basis the Governor General supposedly signed the Rating Act “on behalf of the treasonous Queen Elizabeth II of England”, and in doing so, became a traitor to New Zealand’s Parliament, which made the Act ultra vires. Further, “persons working under the purported authority of the illegal Act” acted in bad faith and may be liable for criminal or civil action. 

It is unclear what that action would involve, given that all statute law in NZ since British settlement would supposedly be ultra vires

 The Herald notes 

 Judge Zohrab noted their challenge to the court’s jurisdiction curiously relied on District Court rules, which were a product of statute. 

“Surprisingly, given they maintain all statutes are unlawful they then purport to rely on the Local Government Act, the Crimes Act, Imperial Laws Application Act, and the Criminal Procedures Act,” Judge Zohrab said.

Meanwhile 'The Travels of Treason' by Michael Lobban in Modern Law Review (online July 2023) comments 

The law of treason has been criticised for being based on ‘outdated’ statutes which are inflexible and unsuitable for modern needs. However, a historical examination of the evolution of treason in Britain and its empire suggests that the law was often adaptable. In nineteenth century England, jurists wished to rein in older constructive treasons, to leave the 1351 Act as the appropriate law for wartime treasons, while the more lenient 1848 Act was to be used against ‘political’ conspiracies to subvert the state by force. However, the ‘constructive’ treasons remained part of the law, and were given new life in imperial contexts. In Ireland and Canada, the idea that plotting the king's ‘political’ death was treason remained central to understandings of the 1351 Act. In India, the interpretation of the provision of the penal code against ‘waging war’ against the government was influenced by old English ideas of ‘constructive’ treason and used against those who challenged British rule. Imperial understandings of treason were also shaped by cases arising out of the Boer war, where the underlying law was Roman-Dutch law. Rather than being restrictive and unable to adapt to modern needs, the law of treason was flexible and malleable. 

The law of treason has attracted a good deal of attention in recent years. Much of it has focused on the fact that the basis of the law remains a statute of 1351 which codified the medieval law of treason. At the heart of the offence is the betrayal of one's allegiance to one's king. This statute defines three central manifestations of treason: compassing and imagining the king's death; levying war against the king in his realm; and giving aid and comfort to the king's enemies, either in his realm or elsewhere. A number of modern critics have argued that the ‘obscure and difficult’ language of this statute makes it hard to apply to contemporary situations, and have called for a reform of the law to modernise it. Treasonable offences can also be punished under the 1848 Treason Felony Act. Under this statute, a term of life imprisonment can be imposed on anyone who ‘within the United Kingdom or without’ shall ‘compass imagine devise or intend’ to ‘deprive or depose’ the monarch ‘from the style, honour, or royal name of the imperial crown of the United Kingdom’. A similar sentence can be imposed on those who conspire to use force to compel a change of policy or to overawe parliament, as well as on those who stir up any foreigner or stranger to invade. Although often overlooked, this legislation has also been subject to criticism. In 2003 Lord Steyn described it as ‘a relic of a bygone age’ which ‘does not fit into the fabric of our modern legal system.’ Such comments seem to suggest that the English law of treason is archaic, unworkable and in need of reform. The 1381 Act is often seen as unusable because it is too narrow and restrictive in its formulation, while the 1848 Act is seen as being too broad to be applied in practice. 

Given the repeated recent calls to revisit or reform the law of treason, this article seeks to enrich our understanding of it by offering a historical re-examination of the evolution of treason in Britain and its empire from the eighteenth to the twentieth century. It shows that the law of treason was more adaptable and flexible than is sometimes assumed, and that it operated differently in different parts of the empire. It will be seen that in Britain, the law of treason was developed in the mid-nineteenth century in a way to provide distinct tools (with distinct penalties) for different kinds of offences against the state. From the late eighteenth century onwards, attempts were made to rein in the reach of the medieval statute – which had been expanded by judges in the early modern era to cover a wide range of ‘constructive’ treasons, including political offences which did not threaten the life of the king – in order to make it primarily a legal tool to use in times of war. The legislation of 1848 was developed to provide a lesser penalty for political treasons. Despite its broad wording, the Treason Felony Act was not intended to facilitate the prosecution of newspaper editors seeking constitutional reform (or the abolition of the monarchy) but was aimed at Irish Republicans wishing to obtain a change of government policy by force. This was to adapt the law of treason in a changing political society in which the franchise was expanding and space was increasingly allowed for political protest, at least of a non-violent kind. However, as shall be seen, the law of treason was not limited to England. In an age of imperial expansion, questions were asked about what constituted treason beyond metropolitan shores. Both the medieval and Victorian statutes were applied elsewhere in the empire, but the way in which they were applied, and the meanings attributed to them could vary according to context. Within the empire, the law of treason might be used in far less liberal ways than was the case at the metropole; and ways which might, in turn, exert an influence on how the English saw their own law.

Treason, sedition, insecurity and plot

The Commonwealth Attorney-General, Robert McClelland, has announced the passage of the National Security Legislation Amendment Bill 2010 (Cth), characterised as legislation that -

seeks to achieve an appropriate balance between the Government's responsibility to protect Australia, its people and its interests and instilling confidence that our national security and counter-terrorism laws will be exercised in a just and accountable way.

The Explanatory Memo is here.

The forthcoming Act reflects recommendations of the July 2006 Review of Sedition Laws in Australia by the Australian Law Reform Commission, the November 2008 Inquiry by the Hon John Clarke QC into the Case of Dr Mohamed Haneef, the December 2006 Review of Security & Counter-Terrorism Legislation by the Parliamentary Joint Committee on Intelligence & Security and the same Committee's September 2007 Inquiry into the proscription of 'terrorist organisations' under the Australian Criminal Code.

The Act will primarily amend the Criminal Code Act 1995 (Cth), the Crimes Act 1914 (Cth), the Charter of the United Nations Act 1945 (Cth), the National Security Information (Criminal & Civil Proceedings) Act 2004 (Cth) and the Inspector-General of Intelligence and Security Act 1986 (Cth). Schedule 9 features amendments to enable the Prime Minister to request the Inspector-General of Intelligence & Security (IGIS) to inquire into an intelligence or security matter relating to any Commonwealth department or agency. This

reflects the increasing interaction between a range of Commonwealth departments and agencies and the Australian Intelligence Community on intelligence and security matters. To fully consider an intelligence or security matter, it may sometimes be necessary for the IGIS to consider the role played by a non-AIC departmentor agency in relation to that matter.

Mr McClelland indicated that the legislation "has been the subject of extensive public consultation and contains significant amendments" including -

* expanding the 'urging violence' offence so that it applies to individuals as well as groups who incite violence on the basis of race, religion, nationality, national or ethnic origin or political opinion

* amending the National Security Information (Criminal & Civil Proceedings) Act 2004 (Cth) so that national security and counter-terrorism court proceedings may be expedited

* establishing a Parliamentary Joint Committee on Law Enforcement to extend parliamentary oversight to both the Australian Federal Police and the Australian Crime Commission

* extending the role of the Inspector-General of Intelligence & Security (IGIS) to inquire into an intelligence or security matter relating to any Commonwealth Department or agency

* extending the expiration period of regulations proscribing a terrorist organisation from two to three years

* new powers for police to enter a premises without a warrant in emergency circumstances relating to a terrorism offence where there is material that may pose a risk to the health or safety of the public

* extending the time available for police to re-enter a premises under a search warrant from one hour to 12 hours in emergency circumstances

* establishing a maximum seven day limit on the detention period that may be disregarded when a person has been arrested for a terrorism offence

* including a specific right of appeal for both the prosecution and the defendant against a bail decision relating to terrorism and serious national security offences.

Using the standard rhetoric, the Attorney-General states that -

These measures are designed to give the Australian community confidence that our law enforcement and security agencies have the tools they need to fight terrorism, while ensuring the laws and powers are balanced by appropriate safeguards and are accountable in their operation. ...

The passage of this legislation is significant as an effective legal framework relating to national security and counter-terrorism is fundamental to our ability to address Australia's security environment.

From an identity perspective the Bill is of interest regarding the 'treason' changes. The Explanatory Memo indicates that -

Requiring an allegiance element

The traditional underpinning of the concept of treason is a breach of a person's obligation to the Crown and loyalty to Australia. Currently, the treason offences under paragraphs 80.1(1)(e) and (f) of the Criminal Code can be committed by anyone acting anywhere in the world. The 2006 PJCIS Report noted that these offences apply to people who have no allegiance and do not benefit from the protection of the Australian State.

The proposed new paragraphs 80.1AA(1)(f) and (4)(e) of the Criminal Code provide for an allegiance or duty requirement within the treason offence. In order for a person to commit the offences in proposed new section 80.1AA of the Criminal Code, the person must be a citizen of Australia or a resident of Australia, or must have voluntarily placed himself or herself under the protection of the Commonwealth, or must be a body corporate incorporated under a law of a State or Territory or the Commonwealth.

Proposed subsections 80.1AA(3) and 80.1AA(5) will make it clear that the fault element for paragraphs 80.1AA(1)(f) and 80.1AA(4)(e) of the Criminal Code is 'intention', as defined in subsection 5.2(2). In order to make out the offence, it would therefore be necessary to prove that, at the time of committing the offence, the person intended to, rather than simply being reckless as to the fact: be an Australian citizen or resident; voluntarily place himself or herself under the protection of the Commonwealth; or to be a body corporate incorporated under a law of a State or Territory or the Commonwealth.

Clarifying providing assistance to the enemy

Both the PJCIS and ALRC noted it was possible that the term 'assist' in the treason offence could be given a broad interpretation and that this was not appropriate, given the seriousness of the offence. This item will qualify the treason offences at proposed new paragraphs 80.1AA(1)(d) and (e) and 80.1AA(4)(c) and (d) of the Criminal Code, to the effect that the offences will only apply when a person provides material assistance to the enemy. This will clarify that the conduct standard in the proposed new offences in section 80.1AA of the Criminal Code must be conduct that will materially assist the enemy. It reflects the intended operation of the offence by making it clear that, in order to commit the offence, a person must provide assistance to the enemy that is real or concrete.