Noting Re Patrick Leo Cusack v Australian Electoral Commissioner [1984] FCA 328 regarding magical thinking about Magna Carta in connection with a forthcoming article on Australian sovereign citizens
Spender J states
This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 by Patrick Leo Cusack.
2. The decision which he seeks to have reviewed is that made by Mr P. Taylor, who is the Divisional Returning Officer for the Division of Ryan. The decision is that Mr Cusack's nomination for the 1 December 1984 House of Representatives Election would not be accepted unless a deposit of $250.00 in legal tender or by banker's cheque was lodged with that nomination. That decision was made by Mr Taylor on 30 October 1984 and was confirmed by a letter dated 30 October handed to Mr Cusack yesterday, 5 November 1984.
3. Mr Taylor in that letter makes it quite clear that he would not accept a nomination for the 1 December House of Representatives Election unless a deposit of $250.00 in legal tender or banker's cheque was lodged with the nomination. In so acting, Mr Taylor would be acting in accordance with the precise terms of sub-s. 170(c)(ii) of the Commonwealth Electoral Act 1918 ("the Act"), and it is also important to bear in mind that s.172 of the Act provides in sub-s. (1) that the nomination shall be rejected by the officer to whom it is made if, and only if, the provisions of, inter alia, s.170, have not been complied with in relation to the nomination.
4. Mr Cusack in his material concedes that the decision has been taken in accordance with the particular provisions of s.170 and on its face would appear to be correct.
5. His submissions essentially are four, the first of which is that in some way, which is by no means clear to me, there has been a breach of the rules of natural justice. In that respect none of the material before me indicates any such breach. I need not trouble myself any further with that particular ground.
6. In relation to the three other grounds, they are that there has in some way been an improper exercise of power by Mr Taylor; alternatively, his decision involved an error of law, not immediately apparent; or that the decision was otherwise contrary to law. Each of these aspects of Mr Cusack's argument involve the same general thrust; namely, that the requirements of s.170, boosted as they are by the forfeiture provisions of s.173, are in conflict with either rights conferred or at least recognised by s.327 of the Act, or cardinal, old-established inherent rights which derive from the Magna Carta, or other long-standing statutory provisions.
7. In respect, for instance, of his argument in relation to an improper exercise of power, Mr Cusack says that the making of a decision not to accept a nomination on the basis stated is an improper exercise of the power insofar as it fails to take relevant consideration into account in the exercise of the power, namely s.327, which is in conformity he says with cardinal, old-established and inherent statutes, particularly Cap. 29 of the Great Charter of Liberties. He says further that the decision, while appearing to be correct, involves a conflict between the provisions of ss. 173 and 327, and that the more general provision, s.327 of the Act, should prevail; and finally, that in relation to the decision being contrary to law, that the making of a decision which would involve conflict of the deposit and forfeiture provisions on the one hand with the electoral offences provisions and with the old-established and inherent statutes, in particular Magna Carta, on the other, is such that a decision based on s.170 would be unlawful.
8. Involved in all of those submissions is the suggestion that a legislative provision that is in conflict with Magna Carta is for that reason invalid.
9. I think it is necessary to make it as clear as I can to Mr Cusack and perhaps others that there has been involved in this whole approach a misconception of the constitutional provisions that apply to legislation passed by the Australian Parliament. Sir Samuel Griffith made it clear in Chia Gee v. Martin [1905] HCA 70; (1906) 3 CLR 649 that it is not open to argument that a law of the Commonwealth is invalid because it is not in conformity with Magna Carta. In that particular case, it was argued on behalf of Chinese immigrants, who had been charged with offences of being unlawful immigrants, that the language test requirement under the Immigration Restriction Act 1901 was invalid as being contrary to Magna Carta. The Chief Justice said at p.652-3:
A number of objections have been taken to the convictions in this case, all of which are unsubstantial. ... The first point made by Mr Le Mesurier was that the Immigration Restriction Act 1901 was unconstitutional, because its provisions were contrary to the provisions of Magna Charta, and the Statutes which had since confirmed it, and also inconsistent with certain treaties. The contention that a law of the Commonwealth is invalid because it is not in conformity with Magna Charta is not one for serious refutation. As to the objection that the provisions of the Act are invalid as being in conflict with treaties, it is sufficient to say that some day perhaps that question may be raised for decision, but it is not raised now.
His Honour makes it clear that an argument that a law is invalid because it is in conflict with Magna Carta is not a substantial one. His Honour then deals with the other point that it may be inconsistent with certain treaties in this manner: as to the objection that the provisions of the Act are invalid as being in conflict with treaties, it is sufficient to say, some day perhaps that question may be raised for decision but it is not raised now, and it may be the case that some Commonwealth legislation is invalid because it conflicts with treaties.
10. So that at the core of the argument that has been addressed to me by Mr Cusack is a misconception as to the basis upon which Commonwealth legislation may be declared invalid, and the primary submission by Mr Cusack that Magna Carta is in some sense a guarantee that no legislation can be enacted in conflict with it is a fallacious one.
Spender J in Re Patrick Leo Cusack v Australian Electoral Commission [1984] FCA 367 states
The applicant seeks to review decisions made by Mr Phil Taylor, who is the Divisional Returning Officer for the division of Ryan, a federal electorate in the State of Queensland. The decisions which he seeks to have reviewed as particularised were, that the otherwise formally correct nominations of Messrs J.C. Moore, M.E. Foley, J.B.S.F. Peeters, and M.A. Crofts, for 1 December 1984 House of Representatives elections, were accepted as valid because individual deposits of $250 in "forms of money" described as either legal tender or banker's cheque were lodged with those nominations and conformed with ss.170 and 172(2) of the Commonwealth Electoral Act 1918 ("the Act").
2. The affidavit material of Mr Taylor indicates that he did in fact accept the nominations for those four candidates for the seat of Ryan and his affidavit asserts that those nominations complied with the requirements of ss.166 and 170 of the Act, and accordingly were accepted and not rejected. Mr Taylor further states that in respect of the candidates Moore and Foley, legal tender was tendered with respect to those nominations and that banker's cheques were tendered with respect to the nominations of Mr Peeters and Mr Crofts.
3. Section 170 of the Act deems, amongst other things, that no nomination be valid unless it is accompanied, in the case of a person nominated as a member of the House of Representatives by $250 in legal tender or in banker's cheque.
4. At the outset I was concerned as to whether Mr Cusack had standing to bring this application, but Mr Bickford, who appeared on behalf of the Australian Electoral Commission, took no point as to whether Mr Cusack could properly be described as a person aggrieved for the purposes of s.5 of the Administrative Decisions (Judicial Review) Act 1977. I referred in that regard to, first, Tooheys Ltd v. Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64 and the observations by Ellicott J. at p 79, and further to the observations by Sir Nigel Bowen and Franki J. in Ricegrowers Co-operative Mills Ltd v. Bannermann [1981] FCA 211; (1981) 38 ALR 535. In the light, however, of the attitude expressed by Mr Bickford, nothing further need be said as to Mr Cusack's standing.
5. The second matter of a preliminary nature that I wish to mention is that after Mr Cusack had concluded his submissions on Tuesday morning of this week and at which point I adjourned the further hearing of his application until this morning, I was concerned that if in fact anything were to be done by way of reviewing those decisions, each of the four persons named whose nomination were the subject of the decision ought properly to be made parties. In the light, however, of the decisions to which I have come, I have not had to consider the necessity of those persons having the right to be heard in respect of these applications.
6. The third matter by way of preliminary that I ought to mention is this: Mr Cusack and an associate of his, Mr Skyring, have in a number of proceedings, both in the Supreme Court, in the Federal Court, and in the Full Court of this court, sought, by one means or another, to pursue the validity of the currency and banking system in Australia. The methods by which that fundamental objective has been pursued have varied, and one might be pardoned for the view that each of them, in their own way, has been pursuing what might colloquially be called "bees in their bonnets" about the validity or otherwise of the method by which legal obligations are discharged in this country.
Queensland Hansard of 29 September 2005 in reporting on debate about the Vexatious Proceedings Bill stated
There are currently 11 persons registered as vexatious litigants with the Supreme Court of Queensland. I will table the list of those persons, but they are Dieter Soegemeier, Robert van Haeff, Leslie Fritz, Alan Skyring, Donald Cameron, John Abbott, Peter Gargan, John Sargent, William Tait, Richard Gunter and Geoffrey Bird. I am informed that those names are on the Supreme Court web site for obvious reasons. Many of them have acted in concert with each other and with other litigants in other places. Their litigation will very frequently involve courts such as the High Court and, of course, the Court of Disputed Returns.
The litigants on the register have in nearly all cases represented themselves, which raises the difficulty that the relevant court must decipher their claims and make an attempt to determine their legal rights. This leads to inevitable delay and the obvious consequence of tying up the time of the courts and delays to other litigants in the litigation process.
One of these litigants is Alan George Skyring who, in reliance on the Constitution and the Magna Carta, seeks to have a declaration from the courts that it is beyond the federal parliament’s constitutional power to legislate to make paper money for legal tender. He has brought numerous proceedings before the High Court of Australia, the Supreme Court of Queensland and the Queensland Court of Appeal.
Mr Skyring operated in concert with another litigant, Mr Patrick Leo Cusack, who is not a declared vexatious litigant under the Supreme Court in Queensland although on 27 August 1992 he was registered as such in the High Court along with Mr Skyring under the High Court Rules. In January 1985 Mr Cusack attempted to issue writs against several Commonwealth ministers. His January 1985 request was refused in July 1985. At the same time, a similar application by Mr Skyring was refused.
In November 1988 Mr Cusack attempted to apply for a summons against the Attorney-General of Queensland, which was rejected in November 1988. He applied to have these rejections reviewed in March 1989, May 1991 and July 1991, being rejected each time and on the last occasion by the full bench of the High Court. The substantial point raised by Mr Justice Toohey in declaring both Mr Skyring and Mr Cusack to be vexatious litigants was that their applications for proceedings were persistent in trying to bring before the court the same argument that had already been decided against them.
The court can act on its own volition, but this bill allows private individuals who are the subject of vexatious litigation to make application to have the person declared a vexatious litigant. In other words, private people can now bring that application. Some of the bodies and persons sued by one vexatious litigant, Mr William Peter Tait, include the Townsville City Council—and Mr Deputy Speaker may well be familiar with this matter—officers of the Anti-Discrimination Commission of Queensland, the James Cook University Student Union, Citigold Corporation and a Small Claims Tribunal referee, among others.
In a case before the Court of Disputed Returns, brought by a Richard Stephen Gunter, some of the respondents included the Governor-General, the Australian Electoral Commission and the Premier of Queensland. This case was brought in conjunction with Mr Skyring and four other litigants, each of whom was enrolled in a different Brisbane federal electorate contesting the constitutional legitimacy of the 2001 election on the basis that candidates had paid their nomination deposits in paper money. Two of these people were appearing as Citizens of the Independent Sovereign State of Australia, with one of the two purportedly being the state’s chief justice. All of Mr Gunter’s cases ultimately stem from an incident in Ipswich where he was convicted of driving an unlicensed truck. Two years later he was convicted of walking an unleashed dog. This provoked three years worth of appeals and over 20 proceedings, some of which sought leave to have Mr Skyring appear as an amicus curiae, despite the fact that he had no legal training.
