In DCT v Palmer (No 2) [2022] VCC 2001 the County Court has considered sovereign citizen style claims by Palmer regarding taxation.
The Court states
Mr Palmer filed a document styled “Conditional Defence of Defendant” dated 23 October 2019. This document ... described Mr Palmer as being “a de jure solemn et naturale” and as being “a subject of the Crown United Kingdom of Great Britain and Ireland (pursuant to s117 of the Commonwealth Constitution) and that Crown is defined as ‘a body of law’ that has been established through proper due process ...”. It also described Mr Palmer as a “living, breathing man,” stating that he was acting “for and on behalf of the Defendant as the Person’s Personal Representative of person Michael Gareth Palmer, and as the beneficiary of that constructive trust ...”. According to the “Conditional Defence”, Mr Ravanello, the plaintiff, was not “a lawfully appointed Deputy Commissioner of Taxation – at best he is a Second Commissioner of Taxation who has purportedly been ‘assigned’ the duties of a Deputy Commissioner of Taxation – and does not, in fact, have the right to enforce the taxation laws within the Commonwealth of Australia.” The defence proceeded to deny the lawfulness of the assessments of taxation made against Mr Palmer, alleging that Mr Ravanello “unlawfully accessed private foundation accounts ... of which the Defendant was merely a participant (not the sole beneficiary of) without a lawful warrant ...” The defence said that the Taxation Administration Act, as referred to in the Statement of Claim, “has not been lawfully amended and there exists no valid proclamation certificate for the sections referred to in the Statement of Claim.” The defence denied at length the various allegations in the Statement of Claim. Mr Palmer also denies the jurisdiction of this Court to entertain the plaintiff’s claim. Hence, the “conditional” nature of his defence. The document concluded: “The Defendant requires the matter to be struck out, with prejudice, on the grounds that it is frivolous, vexatious and an abuse of process, and the proceeding is, in its entirety, a legal nonsense. The Defendant claims costs and damages.” ...
At the outset, Mr Palmer, reiterating the assertion relative to his identity and proper mode of address, which I have quoted from the Conditional Defence (which I confess I cannot follow), asked to be addressed as “Michael”. He denied that he had been validly impleaded and therefore objected to being designated as “the defendant”. I did not follow the logic of his objection to being addressed as Mr Palmer. In the circumstances, I determined to address him as “Sir”, and in discussions with the plaintiff’s counsel, Ms Wilson, to refer to him as “your opponent”.
Mr Palmer began by raising matters which he said constituted a challenge to jurisdiction, calling upon me in effect to establish that I had jurisdiction, and also to determine his review application prior to dealing with the plaintiff’s claims at trial. It seems that, broadly, the same complex issues were raised in support of the review application and to controvert the plaintiff’s claim at trial. Mr Palmer said logically I should deal with the review application first in light of the history of the matter and the fact that the same consideration raised by Mr Palmer seemed to be relied upon. On the review application and at trial, it seemed to me convenient that Mr Palmer advance all of his arguments and evidence at the outset, leaving it to plaintiff’s counsel, Ms Wilson, to respond but giving Mr Palmer a right of reply.
Defendant’s contentions
I will turn first therefore to the various matters urged by Mr Palmer, challenging the court’s jurisdiction and seeking to controvert the plaintiff’s claim.
Jurisdiction
According to Mr Palmer, it was incumbent on every judicial officer to satisfy himself or herself that he or she has jurisdiction to deal with the matter presented. He referred to a decision of the High Court in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; (1911) 12 CLR 398. Next, he referred to the High Court’s decision in Parisienne Basket Shoes v Whyte [1938] HCA 7; (1938) 59 CLR 369 for the proposition that where there was a disregard or failure to observe the conditions of jurisdiction, the matter was “coram non judice”; that is, as if there were no judge and the proceeding constitute a nullity.
Mr Palmer then referred to an array of decisions, many of them from United States courts, to the effect that a determination made without a jurisdiction was of no effect. He also referred to an article in the “Sydney Law Review”, “Submission to the Jurisdiction of a Foreign Court” referring to a then unreported decision of the Supreme Court of New South Wales, given at first instance by Kinsella J and in the Full Court by Street CJ, Owen and Walsh JJ, and in 1957 in Re A Lund & Co (Bilden Textiles) Ltd, A Lund & Co (Bilden Textiles) Ltd v Wembley Wear Pty Ltd, where the learned author of the notes stated:
“One of the broad rules of English and New South Wales private international law is that a court has jurisdiction in an action in personam if the defendant has been served within its jurisdiction or if he has submitted to the jurisdiction. Conversely, we (in England and in New South Wales) recognise that a foreign court has jurisdiction in the international sense if the defendant was served within its jurisdiction or submitted to it: no distinction being drawn between what constitutes a submission to our own court’s jurisdiction (apart from any special domestic legislation) and what constitutes a submission to a foreign court’s jurisdiction. The problem thus arises as to what constitutes a submission.”
The photocopy extract which Mr Palmer handed up does not disclose the volume number of the Review in which the note or article appears, save to say that the extract begins at p580 and ends at p589. The article refers to a decision of Tallack v Tallack [1927] P 211. Mr Palmer’s authorities also included another decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, where Mr Palmer quoted the court at [51] as stating that an administrative decision involving jurisdictional error “is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.”
It is doubtless correct that a court or other decision-making body should satisfy itself that it has jurisdiction before embarking upon the process of adjudication. Beyond that, Mr Palmer’s contentions conflate some three different situations: (a) the situation as to domestic jurisdiction of a superior court of record as, for instance, the Supreme Court of Victoria or the Federal Court of Australia; (b) the situation as to jurisdiction in a domestic court other than a superior court of record as, for instance, in the case of this Court; and (c) the issue as to jurisdiction in private international law or “conflict of laws”, as it is sometimes described.
As to superior courts of record, orders made even without jurisdiction remain valid and effective unless and until set aside on appeal. In Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 590, Rich J said “It is settled by the highest authority that the decision of the superior court, even if in excess of jurisdiction, is at the worst voidable and is valid unless and until it is set aside”; to similar effect, Posner v Collector for Inter-state Destitute Persons (Vict) [1946] HCA 50; (1946) 74 CLR 461, 489. These statements of principle were approved by Stephen, Murphy and Wilson JJ in Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13; (1981) 145 CLR 590, 602. Secondly, relative to matters of international jurisdiction in proceedings in personam, a court may acquire jurisdiction where a foreign resident voluntarily submits to the jurisdiction. Thirdly, in the case of courts other than superior courts of record, including this court, an administrative body, a step taken or an order made without jurisdiction is a decision that “lacks legal foundation” and is no decision at all in accordance with the passage quoted from Bhardwaj’s case by Mr Palmer. In Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, a judge of the District Court of New South Wales, after the plaintiff had recovered a judgment for a liquidated sum against two defendants, made an order restraining them from selling or otherwise disposing of or encumbering or further encumbering or dealing with their interests in a house property until further order or until payment of the amount of the judgment. The High Court held that the District Court did not have jurisdiction to make that order. Consequently, there was no power to punish one of the defendants for breaching the order, even although it had not been set aside on appeal when it was breached.
Leaving to one side the international conflict of laws issues referred to in the article or note in the Sydney Law Review, a court cannot acquire jurisdiction by estoppel or agreement between parties. The jurisdiction either exists or it does not. Accordingly, the “conditional” nature of Mr Palmer’s defence and the attempt which he made to maintain the appearance which he filed as being conditional only were unnecessary. If this court lacks jurisdiction, its lack of jurisdiction would not be made good by any step which Mr Palmer might take or refrain from taking in the proceeding, or any admission which he might make or decline to make.
According to Mr Palmer, there are a number of reasons why this Court did not have jurisdiction to entertain the claim brought against him. At the outset, after my tipstaff had given the proclamation opening to the court, he asked “is this Court operating under the King of Australia?” I replied in accordance with the proclamation that had just been given that it was. (T4, L16-20) Mr Palmer then said “so, where’s the instrument for the valid creation of His Majesty, the King of Australia, given that covering clause 5 of the Commonwealth Constitution binds all courts, judges and people of every State to the heir and successor of the sovereignty of the United Kingdom, not Australia, ...”. (Ibid, L21-26)
He referred to a decision of the Full Court of the Federal Court of Australia in Piccinin v Deputy Commissioner of Taxation [2002] FCAFC 282, where the court Black CJ, Wilcox and Moore JJ rejected a contention that the Local Court and the Supreme Court of Western Australia were courts of a foreign power, namely the United Kingdom of Great Britain and Northern Ireland. [21] Their Honours said [28]:
“The authority by which judicial appointments in Western Australia are made is that of the Queen of Australia, who is relevantly a different constitutional entity to the Queen of the United Kingdom of Great Britain and Northern Ireland: see Australia Act 1986 (Cth), ss 7 and 10; Constitution, s 107.”
A corrigendum to the court’s judgment indicates that the reference to the Commonwealth Constitution should be to s106 not s107.
According to traditional constitutional analysis in the British Empire and later the Commonwealth of Nations, the statement made by their Honours would appear to be heterodox. In the famous case of The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited [1920] HCA 54; (1920) 28 CLR 129, the High Court considered the extent to which agencies of the states could be subjected to the jurisdiction of the Commonwealth Court of Conciliation and Arbitration, earlier authorities of the court having recognised the states as possessing intergovernmental immunity from interventions of Commonwealth law. The court rejected the existence of such immunities in the states and their agencies in what was regarded as a “new start” in Australian constitutional law.
Referring to the doctrine of immunity of the states, the joint judgment given on behalf of Knox CJ, Isaacs, Rich and Starke JJ noted that the Commonwealth Constitution recited a determination of the Australian colonies (now states):
“... ‘to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.’ ‘The Crown,’ as that recital recognizes, is one and indivisible throughout the Empire. Elementary as that statement appears, it is essential to recall it, because its truth and its force have been over‑ looked, not merely during the argument of this case, but also on previous occasions. Distinctions have been relied on between the ‘Imperial King,’ the ‘Commonwealth King’ and the ‘State King.’ It has been said that the Commonwealth King has no power to bind the first and the last, and, reciprocally, the last cannot bind either of the others. The first step in the examination of the Con‑stitution is to emphasize the primary legal axiom that the Crown is ubiquitous and indivisible in the King’s dominions. Though the Crown is one and indivisible throughout the Empire, its legislative, executive and judicial power is exercisable by different agents in different localities, or in respect of different purposes in the same locality, in accordance with the common law, or the statute law there binding the Crown.” [1920] HCA 54; (1920) 28 CLR 129, 152
If the Crown be one and indivisible and ubiquitous throughout the Empire, what has changed since the Engineers’ case? Has anything changed?
There has been no amendment to the Commonwealth Constitution on these matters. There have, however, been enactments of the Imperial Parliament which have been adopted by the Commonwealth Parliament.
In 1931, the Imperial Parliament adopted what is known as the “Statute of Westminster 1931”. The text of that Statute is a schedule to a Commonwealth Statute known as the “Statute of Westminster Adoption Act 1942”. The Statute of Westminster is described as “an Act to give effect to certain resolutions passed by Imperial conferences held in the years 1926 and 1930”.
Amongst the matters resolved at those conferences was that “it would be in accord with the established constitutional position of all members of the Commonwealth [viz the British Commonwealth of Nations] in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Title shall hereafter require the assent as well of the Parliaments of all the dominions as of the Parliament of the United Kingdom.” Most notably, the Statute of Westminster provided that the Colonial Laws Validity Act 1865 should not apply to enactments by dominion Parliament and no law made by the Parliament of a dominion should be void and inoperative on the ground that it was “repugnant to the law of England, or the provisions of any existing or future act of the Parliament of United Kingdom ...”. (s2)
Certain provisions were expressed not to apply to Australia. In 1942, the Commonwealth Parliament enacted the Statute of Westminster Adoption Act to adopt the provisions of the Statute of Westminster with effect from the outbreak of World War II [viz 3 September 1939].
The next enactment, both by the Imperial Parliament and by the Commonwealth Parliament was the Australia Act 1986, which is referred to by their Honours in Piccinin’s case. The provisions referred to by their Honours was s7, whose chapeau is “powers and functions of Her Majesty and Governors in respects of states”, providing that the representative in each state should by the Governor and that the Queen’s powers and functions within the state should be exercised in accordance with the advice of the Premier of that state.
Section 10 provided: “After the commencement of this Act Her Majesty’s Government in the United Kingdom shall have no further responsibility for the government of any state.”
Until the enactment of this provision, the monarch acted upon the advice of the United Kingdom Ministers in appointing Governors of Australian States. It is difficult to see how the enactments just surveyed and, in particular, those referenced by their Honours in Piccinin’s case, revised the situation stated by the High Court in the Engineers’ case. A regime whereby a State Governor acts upon the advice tendered to him or her by the State’s Premier is in no way inconsistent with the “one and indivisible Crown” referred to in the quoted passage from the joint judgment in the Engineers’ case.
Mr Palmer’s contention was that what represented the constitutional break in the continuity and precluded those courts, officials and others purporting to derive their authority from the Commonwealth Constitution was a Commonwealth enactment entitled “The Royal Style and Titles Act 1973 No 114 of 1973”. He made passing reference also to the Royal Style and Titles Act 1953. The 1953 Act was to be the assent of the Commonwealth Parliament “to the adoption by Her Majesty for use in relation to the Commonwealth of Australia and its territory, in lieu of the Style and Titles at present appertaining to the Crown, of the Style and Titles set out in the schedule”.
The schedule showed the Style and Titles as being “Elizabeth II by the grace of God of the United Kingdom, Australia and her other realms and territories, Queen Head of the Commonwealth Defender of the Faith”. The Governor-General, Sir William McKell, rather than assenting to the Statute on the Queen’s behalf, endorsed the words “I reserve this Act for Her Majesty’s pleasure”. The print that I have shows Her Majesty’s assent in her handwriting “Elizabeth R”, April 3rd, 1953.
The 1973 Act was in similar terms with the schedule Style and Titles being “Elizabeth II by the grace of God Queen of Australia and her other realms and territories, Head of the Commonwealth”. The Governor-General, Sir Paul Hasluck, rather than assenting on the Queen’s behalf, reserved the matter for Her Majesty, whose handwritten signature appears on the Statute “Elizabeth R, 19 October 1973”.
These enactments and the Styles and Titles are consistent with the formulation in the Engineers’ case. Employment of a different title for the sovereign in different parts of her dominions does not destroy the indivisibility of the Crown which is a fundamental constitutional principle.
The provisions of the Statute of Westminster which have been specifically adopted in Australia reflecting an agreement between the United Kingdom Government and inter alia the Government of the Commonwealth of Australia that the latter is to be consulted on matters of succession to the throne is inconsistent with the thought that the Queen or King of the United Kingdom, and the Queen or King of Australia might be a different person.
The conclusion of the Full Court of the Federal Court for the purposes of determining the issue under the Commonwealth Bankruptcy Act 1966 arising for its determination in Piccinin’s case that the courts of Western Australia are, as regards the Commonwealth of Australia and the Federal Courts of Australia, “courts of a foreign power”, is plainly right. The Crown, however, remains one and indivisible as it was in 1920.
Arguments similar to the ones relied on by Mr Palmer relative to the Royal Style and Titles Act 1973 were considered by Hayne J as a single Justice of the High Court in Joosse v ASIC (1998) 159 ALR 260; [1998] HCA 77. His Honour had before him some five separate proceedings, each of which were the subject of applications for them to be removed from various courts in Victoria to the High Court of Australia on the basis that each “arises under the Constitution or involves its interpretation”. His Honour said at [11]:
“In all five proceedings the applicants contend that there has been an unremedied, perhaps even irremediable, ‘break in sovereignty’ in Australia that leads to the conclusion that some (perhaps much) legislation apparently passed by the Parliament of the Commonwealth, or one or more State Parliaments, is invalid.”
His Honour continued, explaining that it was contended on behalf of the applicants that the: “references to the Queen in the sovereignty of the United Kingdom, yet since the Royal Style and Titles Act 1973 (Cth) the Queen has been the Queen of Australia and there has been no alteration to the Constitution. Accordingly, so the argument goes, the Royal Assent has not been validly given to a number of Acts of the Commonwealth Parliament.” (1998) 159 ALR 260, 263 [12]
The resemblance of this argument to the one pressed by Mr Palmer and now under consideration is obvious. His Honour said: “each application should be dismissed. None of the applicants identifies a point having sufficient merit to warrant removal of the cause concerned into this Court. The points that it is sought to agitate are not arguable.” (Ibid, [15])
This is as downright a rejection of a legal argument as can be made. His Honour considered the concepts of sovereignty and the evolution of Australia’s constitutional position from its colonial past to a fully sovereign independent nation by reference to the various legal steps referred to above, such as the Statute of Westminster, the Statute of Westminster Adoption Act and the Australia Act. In considering the argument as to the alleged break in sovereignty, his Honour said it was covering clause 5 of the Constitution which was key. The clause states: “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.” ((1998) 159 CLR 260, 265 [19])
His Honour continued: “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.” (Ibid, [19])
As to the Royal Style and Titles Act, his Honour said: “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.” (Ibid, [20])
The jurisdictional challenge based on changes in the monarch’s Styles and Titles failed.
Logically, the same reasoning leads to the conclusion that insofar as Mr Palmer challenged the entitlements of the Deputy Commissioner on the same basis of a break in sovereignty, such challenge to the Deputy Commissioner’s authority must likewise fail.
Mr Palmer also challenged the court’s jurisdiction on the basis that it was a trading corporation and, as such, could not exercise judicial power.
The first point to note relative to this contention is that there is nothing in the County Court Act 1958, or any other statute, which constitutes the court as a corporation, either aggregate or sole.
Mr Palmer’s contention in this respect was based on a decision of the High Court of Australia, namely Communications Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11; (2015) 256 CLR 171. He took me to material obtained online relative to Australian Business Numbers, indicating that state bodies or instrumentalities, such as the court and the Office of the Governor, held Australian Business Numbers. This, he said, indicated that the court was a trading corporation.
Assuming without deciding that if the court were a trading corporation it would be disabled from exercising judicial power for matters relied on by Mr Palmer does not establish that the court is a trading corporation. In the Queensland Rail case, the High Court considered a series of questions including whether the Commonwealth Fair Work Act 2009 applied to Queensland Rail and its employees to the exclusion of a state statutes, Queensland Rail Transit Authority Act 2013. The Commonwealth Act would have overriding operation relative to Queensland Rail. Inter alia, if Queensland Rail were considered to be a trading corporation within the meaning of s51(XX) of the Commonwealth Constitution. It was contended on behalf of Queensland Rail that it was not a trading corporation because its constituent statute established it as an entity which was “not a body corporate”.
The court analysed the functions and operations of Queensland Rail and concluded that it did engage in a commercial enterprise and so should be regarded as being “a trading corporation” for constitutional purposes. It may be that the Queensland Rail case constitutes an answer to the matter which I raised earlier, namely that there is nothing in the County Court Act, or any other legislation, which constitutes this Court as a corporation. What is lacking, however, is a demonstration that its activities constitute it as a trading corporation. Mr Palmer drew attention to the Australian Business Number and said that the court was in the business of “hiring out courtrooms”. Whether that accurately characterises some of the court’s activities I am unable to say. I do not have exhaustive knowledge of all of the court’s operations. I know sufficient of its activities, however, to be confident that they are predominantly judicial and therefore governmental rather than trading or commercial. If any trading or commercial activities is in fact undertaken, it is minor and incidental to the dominant judicial and governmental, such that the court does not bear the overall character of a trading corporation.
Australian Business Numbers are required inter alia for government entities defined to include Commonwealth and State Departments and other government agencies. A number system (Australian Business Numbers Act 1999, s5) regime was apparently established to facilitate the collection of taxes by the Commonwealth. It is an ordinary enactment of the Commonwealth Parliament not a constitutional amendment. It is not apt to impose a trading character upon the court or its activities.
A further subset of Mr Palmer’s jurisdictional challenge was a contention that Judicial Registrar Tran (as her Honour then was) was not authorised to exercise Federal judicial power as a judicial registrar. He referred to R v Davison (1954) 90 CLR 280. In that case, the High Court invalidated as contrary to the provisions of Chapter III of the Constitution, purporting to authorise a registrar in bankruptcy to make sequestration orders. The Court concluded that the regime purported to authorise a person [viz the registrar] who did not constitute a court, in particular, did not constitute the then Federal Court of Bankruptcy with authority to exercise Commonwealth judicial power and was therefore invalid.
Mr Palmer said an arrangement which purported to authorise the judicial registrar to deal with his application for a summary dismissal of this proceeding was likewise offensive to Chapter III of the Commonwealth Constitution. It was common ground that this proceeding in its entirety is a Federal matter and must therefore be determined in accordance with Chapter III of the Commonwealth Constitution.
Ms Wilson on behalf of the plaintiff referred to a later decision of the High Court in Commonwealth of Australia v The Hospital Contribution Fund of Australia (1982) 150 CLR 49, where the Commonwealth had sought declaratory relief against the fund contending that a Master of the Supreme Court of New South Wales did not have power to deal with subpoenas that had been issued by the fund against a Commonwealth Minister.
In accordance with earlier authorities, such as Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69 and Knight v Knight [1971] HCA 21; (1971) 122 CLR 114, the High Court held that a Master of the Supreme Court of New South Wales was not a “component part of the court”. Nevertheless, the court held that references in the Constitution and the Commonwealth Judiciary Act to “courts of a state” referred to the relevant courts as institutions and not the persons of which they were composed and, in the circumstances, the Master could be regarded as constituting the Supreme Court of New South Wales for the purpose of the exercise of the powers which were conferred upon him. Kotsis v Kotsis and Knight v Knight, which had invalidated bestowal of federal jurisdiction on Masters, were overruled. ((1982) 150 CLR 49)
Mr Palmer correctly observed that the HCF case dealt with the situation of a master not a judicial registrar. Davison’s case does not seem to have been expressly overruled in the HCF determination. However, the Registrar in Bankruptcy in Davison’s case was not attached to any particular court, albeit controlled by the Federal Court of Bankruptcy.
The logic of HCF tells in favour of judicial registrars as much as masters being able to constitute a State court and exercise Federal judicial power.
In the end, it is unnecessary for me to determine this question. Rule 84.03 of the Court’s rules, dealing with review by judge or judicial registrar decision, by sub-rule (5) provides “A review under this rule shall be conducted by way of a hearing de novo”. Even if there were an issue as to the judicial registrar’s jurisdiction, bringing the matter before a judge of the court would cure that problem. This element of Mr Palmer’s jurisdictional challenge also fails. Mr Palmer relied on Bills prepared as part of the Constitution Commission Report 1988, which provided for deletions “omitting obsolete words and so as to recognise the Queen of Australia”. These Bills were never enacted. Mr Palmer said that the fact that they were not enacted indicates that one cannot simply treat the references in the 1900 Constitution to the Queen of the United Kingdom et cetera as equivalent to a reference to the Queen of Australia.
The fact that these Bills were not enacted might be regarded as indicative of an opinion that they were unnecessary, which is consistent with the view advocated here by the plaintiff.
Another element of Mr Palmer’s contention of a radical break in constitutional continuity in 1973, such that enactments since that date are invalid, is based upon the defacing of the former Great Seal of the Commonwealth of Australia and its replacement with a new seal in 1973. Mr Palmer produced material from the National Archives of Australia, including a Royal Warrant signed by the Prime Minister of Australia as at 1973, the Honourable EG Whitlam, directing the Governor-General of Australia to deface the existing Great Seal adopted on 16 February 1954, adopting in lieu of that former seal the new one submitted. This document is styled “Royal Warrant” and is endorsed by Her Majesty “Elizabeth R”. Also included in the material was advice to the Governor-General from Mr Whitlam, as prime minister, to the effect that, whilst there was no legal necessity for the 1973 Statute to be “reserved for Her Majesty’s pleasure”, it was appropriate nevertheless for the 1973 Bill to be submitted to Her Majesty. As we have seen, she assented. Where Queen Elizabeth the Second, the monarch in proper succession to Queen Victoria, the monarch at the time of the adoption of the Commonwealth Constitution, assented to the defacement of the 1954 version of the Great Seal and the adoption of a new one, it is not evident why this should represent a radical break in sovereignty so as to invalidate subsequently enacted laws assented to by Her Majesty under her new title, Queen of Australia.
Personhood
I have already drawn attention to the unorthodox manner by which Mr Palmer refers to himself on court documents in the heading the suffix “Being a subject of the King of the United Kingdom”.
In a set of questions headed “Defendant’s Updated Conditional List of Issues”, at paragraph 76 Mr Palmer said “How can the plaintiff establish that the defendant is a ‘person’ for the purpose of the legislation they rely on when a ‘person’ is defined as ‘an abstraction, a creature of the mind only. It is imaginary, having neither actuality nor substance, is foreclosed from obtaining parity with the tangible such as the living man or woman, as per Cutchell v Denver and Spalding v Denver, as well as the LibertyWorks Inc v Commonwealth of Australia 2021 HCA 18 case, when the defendant is quite clearly a living, breathing man a de jure solum et naturale.
He noted that the definition of tax payer in the Income Tax Assessment Act 1936 referred to a “person deriving income or profits or gains of a capital nature”. He referred to the definition of person in s195.1 of the Statute, “A New Tax System (Goods and Services Tax Act 1999) as being “includes a company”. He said “it does not, however, state that it includes a man or a woman”.
The Oxford English Dictionary online edition gives one of the principal meanings to the noun “person” as “an individual human being; a man, woman, or child”. Most words in a statute are not the subject of specific definition. They bear their ordinary meaning as used in the English language.
As to the definitions beginning with the words “means” or “includes”, according to Pearce and Geddes Statutory Interpretation in Australia (7th edition), “The orthodox, and it is submitted, the correct approach to the understanding of the effect of these expressions [viz means and includes] is that ‘means’ is used if the definition is intended to be exhaustive, while ‘includes’ is used if it is intended to enlarge the ordinary meaning of the word.” ([6.61] 248)
The normal meaning of the word “person” is as quoted from the Oxford English Dictionary. The word “includes” in the definition to be found in the Goods and Services Statute has the effect of extending the meaning. Assuming that the definition in the Goods and Services Tax Statute relied on by Mr Palmer had any relevance (which it does not), its effect would be that person means human beings in accordance with its ordinary meaning as an English word, but also extends to companies. There is no basis for the contention that Mr Palmer is not a person and therefore is outside the definition of “tax payer” for the purposes of the income tax legislation.
