Section 61 of the Australian Constitution provides for the general executive power of the Commonwealth. It has traditionally been regarded as incorporating the prerogative as the yardstick of its ambit. There has, however, been a drift away from sole reliance on the prerogative toward a conception of s 61 as incorporating inherent power to meet the imperatives of a modern, independent national government. This has created a tension between those who would maintain that the prerogative alone can ensure against undue aggrandizement of executive power and those who see in an executive ‘nationhood’ power the only appropriate criterion by which to interpret s 61 to meet the needs of a modern government. The trend toward ‘nationhood’ has now been supported by the High Court of Australia. It is therefore presently urgent to address the issue of limitations to this power. It will be argued that this can only be achieved by maintaining an appropriate role for the prerogative, albeit the concept itself may need to evolve as part of the Australian common law and a written federal constitution.
In National Australia Bank v Joyce [2012] WASC 224 the WA Supreme Court states
[20] Messrs Trystan and Ryan Joyce made only one submission. They essentially submitted that the court had no authority to act 'either under its constitutional seal or its corporate seal'.
[21] Mr Ryan Joyce referred to the seal of the court affixed to the chamber summons in this proceeding. He referred to covering cl 5 of the Constitution of the Commonwealth of Australia that '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; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth'.
[22] Mr Ryan Joyce also quoted from the decision of Kirby J in Re Wakim; ex parte McNally[7] that a 'legislature cannot, by preambular assertions, recite itself into constitutional power where none exists'. The submission appeared to be that the court has no power to act under either the constitutional seal or the corporate seal affixed to the chamber summons.
[23] Mr Trystan Joyce joined in Mr Ryan Joyce's submissions. Mr Trystan Joyce refused to say anything further than to ask the court whether it was acting under its constitutional seal or its corporate seal.
[24] Section 106 of the Constitution of the Commonwealth of Australia expressly continues the Constitution of each State of the Commonwealth, subject to the Commonwealth Constitution, continue as at the establishment of the Commonwealth until altered in accordance with the Constitution of the State.
[25] At the time of Federation, s 2(1) of the Constitution Act 1889 (WA) dealt with the establishment of the Western Australian Legislative Council and Legislative Assembly and provided that it should 'be lawful for Her Majesty, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, order, and good government' of the Colony and its dependencies. Section 2(1) has never been amended, and the words 'peace, order and good government' confer plenary power.
[26] Section 15 of the Supreme Court Act 1935 (WA) provides for the Supreme Court to use a seal and for the power of the judges of the court to make rules providing for the purposes for or occasions on which the seal may be used.
[27] Order 67 r 4 of the Rules of the Supreme Court 1971 (WA) provides that the official seals to be used in the Central Office shall be such as the Chief Justice from time to time directs. There is no separate constitutional seal or corporate seal. Only one official seal exists, and the Chief Justice has directed its use.
[28] The official seal of the court, commonly affixed to court documents in accordance with the direction of the Chief Justice, bears the Western Australian coat of arms depicting two kangaroos each holding a boomerang in one paw and a shield in the other. It also bears the words '[t]he seal of the Supreme Court of Western Australia'. In accordance with common practice, that seal was affixed to the chamber summons by the Central Registry of this court. The affixing of the official seal has the effect that the chamber summons can be received in evidence without any signature or other formality.
[29] Despite being given the opportunity to do so on numerous occasions, at no time did either of Messrs Trystan and Ryan Joyce identify how the 'seal' under which the court was said to be acting affected the jurisdiction of the court to hear the matter, or the power to make the orders sought.
[30] The best that might be said of the submission is that it bore some resemblance to a more detailed argument made in O'Connell v The State of Western Australia. In that case, Mazza JA (with whom Martin CJ and Buss JA agreed) considered two arguments relating to issues which were asserted by the appellant to be constitutional issues:
(i) that the passage of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) (which, in broad terms, changed references to the Crown or her Majesty in a large number of statutes, including the District Court Act 1969 (WA), to the Governor or the State) 'purported to dissolve the indissoluble Federal Commonwealth; under the Crown of the United Kingdom by removing the Sovereign'; and
(ii) that since the Department of the Attorney General has an Australian Business Number (ABN) the courts in this State have effectively become corporations and that the judiciary is no longer a separate and independent arm of government.
[31] His Honour addressed that submission in detail, concluding that the arguments were hopeless and had no reasonable prospect of succeeding. The same must be said of the submission, if it were a submission, in this case.
In O'Connell v The State of Western Australia [2012] 96 - a hatespeech case - the Court stated
[67] The appellant explained that he wanted an adjournment because he questioned whether the District Court was a court under Ch III of the Australian Constitution and because a pyramidal symbol at the front of the District Court building indicated that the District Court 'came under Corporate Jewish Masonic control'. He stated that he refused to be judged in such a court: ts 220.
[68] Martino CJDC refused Mr Bougher's application to withdraw, in the hope the appellant would change his mind about acting for himself. His Honour also dismissed the application for the adjournment.
[69] On 14 January 2011, the appellant filed in the District Court a document, dated 13 January 2011, entitled 'Applicant's notice of constitution matter under s 78B of the Judiciary Act 1903 (Cth)' (the s 78B notice). In that document, the appellant purported to give notice to the Attorneys-General of the States and Territories of matters 'arising under the Constitution of the Commonwealth of Australia or involving its interpretation'. I will refer later in these reasons to the matters said to arise under the Constitution or involve its interpretation. It is sufficient to say at this point that the matters raised in the notice were completely devoid of merit. ...
[73] His Honour said that he did not propose to adjourn the trial because there was no legal merit in the submissions contained in the notice: ts 235.
[74] The appellant did not accept his Honour's ruling. Instead, he accused his Honour of committing treason. His Honour ignored this and asked the appellant whether he understood his right of jury challenge. He replied, 'Your Honour, could we just get your neck size for the treason charges?': ts 236.
[75] From then on and throughout the trial, the appellant treated his Honour and the trial process with complete disrespect.
[76] There are many examples of the appellant's disrespectful and insulting behaviour towards his Honour and the court during trial. The flavour of his behaviour can be gauged from the following examples: He said to his Honour, 'I wish to get your neck size so we can go straight to the gallows for treason': ts 280. When referring to his Honour, the appellant often called him 'adjudicator'. On other occasions, the appellant referred to his Honour as 'Captain Pugwash': ts 682, 'De Fuhrer' and 'Comrade Stalin'. He referred to the court as 'a kangaroo court': ts 261. To emphasise the point, he sang the theme song to the well-known children's television program 'Skippy': ts 662, and made references to Skippy, at other times during the trial. He insulted his Honour, saying, at one point, 'Shut up, you old fool': ts 683; and at another point, 'Were you paid or do they have something on you?': ts 733.
[77] Throughout the trial, the appellant refused to accept or acknowledge the authority of the court. At various times in the trial, when he was addressed by his Honour he made a speech in similar terms to the following:
Just to clarify the jury - for the jury, my name is Brendon Lee - Brendon Lee of the family O'Connell. I am a sovereign subject of Queen Elizabeth II, her heirs and successors. I'm a free man. This court does not sit under Ch 3 of the Australian Constitution - if you're that bored you can leave - sit under Ch 3 of the Australian Constitution, nor does it sit under 1903 Judiciary Act. This whole court is a farce. It's an insult to Skippy. But I'll continue on with this farce, this comedy. Absolute comedy. Here under duress:
ts 321. See also ts 384, ts 424, ts 515, ts 530, ts 636, ts 642, ts 666 and ts 707.
[78] The appellant used his opening address to the jury to claim that his Honour, and the District Court generally, had no jurisdiction to try the case under the Constitution. When asked by his Honour if he would state his defence, the appellant replied: I don't have to give you a defence, adjudicator, because you can't sit. You're in a kangaroo court: ts 264.
[79] The appellant refused to question the first prosecution witness, Detective Senior Constable Paini. During the detective's evidence, when his Honour asked the appellant if he had been given a particular part of the prosecution brief, the appellant replied:
I'm sorry, adjudicator, I'm still waiting for the court to sit under common law under section - chapter III of the Australian Constitution and the Judiciary Act of 1903. When that happens - - -
WISBEY DCJ: The jury - - - T
HE APPELLANT: When that happens, we can talk business. Till then, I'm just staring at the ceiling: ts 271.
[80] Apart from Detective Senior Constable Paini, the appellant cross-examined, at some length, the witnesses called by the prosecution. The appellant was frequently argumentative with, and insulting to, witnesses. On occasions, he used cross-examination as an opportunity to make speeches and, from time to time, sought to embark upon irrelevant religious and political discourse.
[81] The appellant disrupted the prosecutor's closing address to the jury and his Honour's summing up, to the point where he had to be removed from the courtroom and placed in a remote courtroom from where he could see and hear the proceedings: ts 684, ts 712.
[82] It is no exaggeration to characterise the appellant's behaviour as seriously defiant, disrespectful and, on many occasions, contemptuous.
...
[84] There is no point in setting out the full terms of the appellant's s 78B notice. It is confused, contradictory and largely incomprehensible. It does not clearly identify any relevant matter arising under the Constitution or involving its interpretion.
[85] The appellant's written submissions, apart from making a bare assertion that the s 78B notice raised a constitutional issue, were silent as to the identity of that issue.
[86] In his oral submissions, the appellant's counsel identified two issues.
[87] The first is that the passage of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) (which, in broad terms, changed references to the Crown or her Majesty in a large number of statutes, including the District Court Act 1969 (WA), to the Governor or the State) 'purported to dissolve the indissoluble Federal Commonwealth under the Crown of the United Kingdom by removing the Sovereign': appeal ts 16.
[88] The second issue is that the appellant asserts that, as the Department of the Attorney General has an Australian Business Number (ABN), the courts in this State have effectively become corporations. Thus, it is said the judiciary is no longer a separate and independent arm of government: appeal ts 18, 19.
[89] The appellant's counsel submitted, in effect, that no matter what the trial judge's view was of the merit of the matters contained in the s 78B notice, he was obliged to adjourn the proceedings to give the Attorneys-General the opportunity to intervene, if they so wished.
[90] The purpose of a s 78B notice is to give Attorneys-General an opportunity to intervene in proceedings and, if desired, to seek removal of the cause, or part of the cause, into the High Court: Nikolic v MGICA Ltd [1999] FCA 849. To invoke the application of s 78B, it is necessary to show that there is some matter arising under the Constitution or involving its interpretation. A matter which is trivial, unarguable, frivolous or vexatious is not a matter arising under the Constitution or involving its interpretation: State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 66 ALR 129, 130; Nikolic v MJICA Ltd , [11]. As Wheeler JA put it in Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 [42]: If the alleged 'constitutional issue' is unarguable or vexatious, then there is in truth no constitutional issue at all;
[91] The first issue identified by the appellant's counsel is totally devoid of merit. The identical argument has been decided in this court in a number of cases including Glew v The Shire of Greenough [2006] WASCA 260; and Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289. An application to the High Court for special leave to appeal against the first of those decisions was refused: Glew v Shire of Greenough [2007] HCATrans 520 (6 September 2007).
[92] As these cases make clear, the Acts Amendment and Repeal (Courts and Legal Practice) Act did no more than change the terminology used in many statutes and did not alter the relationship between the Crown and the various bodies contained within the Acts it amended. The Act does not have, and could not have, the constitutional effects asserted by the appellant. The submission is frivolous and vexatious.
[93] The submission concerning the ABN can be similarly described. An ABN is required for any organisation or individual who carries on an enterprise with a GST turnover over a certain sum. Further, anyone who wishes to claim GST credits or fuel tax credits needs an ABN. An ABN holder may be an individual, a corporation, a partnership or government entity. A person or entity does not become a corporation simply because that person or entity has an ABN: Williamson v Hodgson [2010] WASC 95 [44] - [45].
Williamson was noted here.
In O'Connell the Court went on to state
[94] Assuming that the Department of the Attorney General has an ABN, this does not:
(i) change the character of any court in this State;
(ii) affect the independence of the courts and the judiciary; or
(iii) offend the doctrine of the separation of powers.
[95] Finally, for the sake of completeness, the appellant, on many occasions during the trial, asserted that the District Court was not a court constituted under Ch III of the Constitution. This argument is completely misconceived. The offences for which the appellant was tried are State offences, not Commonwealth offences. Chapter III of the Constitution was never engaged. The case fell to be determined solely by the laws of Western Australia.
[96] None of the matters raised by the appellant in the s 78B notice are in truth matters arising under the Constitution or involving its interpretation. His Honour was entirely correct in refusing to adjourn the proceedings. Ground 1 is hopeless and has no reasonable prospect of succeeding.