the applicant filed an application on 12 September 2023 seeking: A stay on proceedings ... until authority and jurisdiction has been established as per the following 12 points ...
(1) Provide proof of authority that every judge, registrar, magistrate and public servant employees are commonwealth public officers, as per section 3 definitions of the crimes act 1914 Commonwealth, and
(2) Provide proof of jurisdiction as per crimes act 1914, s4, application of common law of England, and
(3) Provide proof of jurisdiction as per Judiciary act 1903, Section 80, Common law to govern, Common Law of England, and
(4) Provide proof of authority that every judge, registrar, magistrate and public servant employees are commonwealth public officers, as per Chapter III of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, and
(5) Provide proof you have made available, Trial by jury, as per s80 of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, and
(6) I request the instrument, or otherwise information, that demonstrates that the Federal Court of Australia Act 1976 complied with section 58 of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, to establish the Federal Court of Australia, and
(7) I request the instrument, or otherwise information, that demonstrates that the Family Law Act 1975 complied with section 58 of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted in becoming law, to establish the family law act 1975, and
(8) Provide proof that the Governor-General of the Commonwealth of Australia has been appointed by Her Majesty Queen Elizabeth the Second and her heir Charles III of the United Kingdom of Great Britain and Ireland, be appointed by Commission under Letters Patent, Dated 29th October 1900, Royal Sign Manual and Signet and represent The Queen's Most Excellent Majesty, Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Our other Realms & Territories Queen, Head of the Commonwealth, Defender of the Faith, Section 61 of Our Primary Law, Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, and
(9) Provide proof that the Governor of the State has been appointed by Her Majesty Queen Elizabeth the Second and her heir Charles III of the United Kingdom of Great Britain and Ireland, According to the Letters Patent, Dated 29th October 1900, Royal Sign Manual and Signet and represent The Queen's Most Excellent Majesty, Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Our other Realms & Territories Queen, Head of the Commonwealth, Defender of the Faith, and
(10) Provide proof of authority as to which Commonwealth entity, you are administrating as per The Public Governance, performance & Accountability Act 2013, chapter 2, division 2 -11.
(11) Provide proof of the oath or affirmation of allegiance as required by the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, subscribed by Chief Justice William Alstergren, as provided for in the Schedule, and
(12) If the first requested document cannot be found, I request such a document showing any undertaking that Chief Justice William Alstergren made prior to taking his position in the Federal Court system. (As per original)
Each of the points are drafted as a demand that the court provide proofs to the applicant. This form of request was declined by me during argument, pointing out to the applicant that I am sitting to hear the case and not to be cross-examined by him. It is not the role of the court to provide evidence or opinions, rather, to determine applications made to the court by parties. The approach of the applicant cannot succeed for a number of other reasons:
(a) First, there is a general presumption of regularity (omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium: see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164). The presumption forms part of Australian law: see R v Brewer [1942] HCA 33; (1942) 66 CLR 535, 548; and Cassell v R [2000] HCA 8; (2000) 201 CLR 189 at [17]. If the applicant seeks to challenge the validity of the legislation and appointments of the judges, he bears the onus of raising an evidentiary basis for the claim. It is not open to him to attempt to place himself in the position of arbiter by demanding that the Court prove its authority to him.
(b) Secondly, there is an element of sophistry in how the applicant frames the argument as it is apparent that he would never be satisfied of any proof provided. On his approach, he will always be able to demand further proof: for example, any witness other than the sovereign would simply be asked to prove their authority, and if the sovereign appeared, no doubt the applicant would require that the sovereign prove his identity and sovereignty.
(c) Thirdly, it appears from the form of the application that the applicant effectively arrogates to himself the power to issue the ancient writ of quo warranto. Section 75(v) of the Constitution vests original jurisdiction in the High Court in any matter in which a writ of prohibition and mandamus or an injunction is sought against an officer of the Commonwealth. Section 33 of the Judiciary Act 1903 (Cth) also allows the High Court to make orders or direct the issue of constitutional writs. Relief in the nature of quo warranto can be sought from the High Court. The modern process is specified in r 25.17 of the High Court Rules 2004 (Cth), which provides that an injunction or declaration may be granted if an applicant proves that a person has not been validly appointed to an office: see Liston v Davies [1937] HCA 22; (1937) 57 CLR 424 at 445). As the applicant’s argument has the effect that no currently sitting judge in Australia is validly appointed, it is unclear to which court he would need to address his request for the issue of such a writ (presumably either the King or the High Court of England). ...
Further
Whilst the argument of the applicant, as it is identified in the material, appears long and complex, much of the complexity arises as a result of his adoption of common forms of pseudolegal arguments as described in detail by Judge Rooke in Meads v Meads (2012) 543 AR 215 (Alberta, Canada), and insightfully discussed in a number of articles by Donald J Netolitzky, including “Organized Pseudolegal Commercial Arguments as Magic and Ceremony” [2018] Alberta Law Review 1045; and “The Perfect Weed for this Spoiling Soil: The Ideology, Orientation, Organization, Cohesion, Social Control, and Deleterious Effects of Pseudolaw Social Constructs” (2023) 6 International Journal of Coercion, Abuse, and Manipulation 1. In Australia, pseudolaw has been discussed in a speech delivered by Judge Cash, “A Kind of Magic: The Origins and Culture of Pseudolaw” [2022] QldJSchol 16; and in an article by Harry Hobbs, Stephen Young and Joe McIntyre, “The Internationalisation of Pseudolaw: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand” (2024) 47 UNSW Law Journal 309.
The applicant’s core argument is that the letters patent and assents to legislation by Queen Elizabeth II are invalid since Her Majesty changed the phrase “under Our Sign Manual and signet” to “under Our Sign Manual and the Great Seal of Australia” and due to changes in the description of the Queen, for example omitting the title “Defender of the Faith”. The purpose of these processes is simply to provide evidence of the sovereign’s actions. The ability to change the method by which the sovereign demonstrates their assent is long recognised. For example, in 1830 the House of Commons passed the Royal Signature By Commission Act 1830 (Imp) to allow King George IV to appoint certain persons to affix the royal signature to instruments, instead of signing, due to his illness affecting his ability to sign documents. Sir R Peel remarked during the First Reading of the Bill:
“The present Bill provides that his Majesty may, by his Royal warrant or commission, to be signed with the sign manual, appoint one or more persons to attach a stamp to those instruments which require the Royal Signature. That stamp will be provided under the direction of the Lord President of the Council. There will be two stamps; one of which will bear the words 'George R.,' and the other, 'G. R.,' the initials only, for such instruments as are usually signed in that way... The stamp can only be affixed by the King's express command, and in the presence of his Majesty, and the party affixing it must attest by his own signature, that the stamp has been affixed by his Majesty's express command, and in the presence of his Majesty” [1149].
The applicant’s arguments must fail for a number of reasons:
(a) Section 6 of the Acts Interpretation Act 1901 (Cth) provides that: The date appearing on the copy of an Act printed by the Government Printer, and purporting to be the date on which the Governor-General assented thereto, or made known the Sovereign’s assent, shall be evidence that such date was the date on which the Governor-General so assented or made known the Sovereign’s assent, and shall be judicially noticed.
(b) There is no claim that the Queen did not execute the relevant letters patent or give her assent. Even if there is some reason that the form of words are defective, it does not change the underlying reality that these are actions of Queen Elizabeth II. The purpose of the details raised by the applicant are not to convert the document into one that is of legal effect, but rather to provide a suitable mechanism to demonstrate that the acts were those of the sovereign (or the Governor-General): see, for example, the discussions in Rutledge v Victoria [2013] HCA 60; (2013) 251 CLR 457 at [9] – [11] and Coshott v Coshott [2010] FCA 300; (2010) 184 FCR 495 at [24] – [26].
(c) The “sign manual” is simply an archaic phrase for a handwritten signature, and the word “signet” simply refers to the seal that is used from time to time. There is no basis for concluding that the sovereign is unable to change the signet that they use, nor that they would be restricted to only one seal to be used in all of their realms. The choice by Elizabeth II to use the Great Seal of Australia (or such other seal as may have been Her Majesty’s pleasure) is not impeachable, at least when done with the assent of Parliament.
(d) The use of the Great Seal of Australia followed a meeting of the Federal Executive Council at Government House whereby a Royal Warrant was granted on 16 February 1954, as contemplated by the Royal Style and Titles Act 1953 (Cth). Whilst the applicant referred to the schedule, which set out the changes to the royal signs and seals, it was apparent that he had not read the Act itself, which included a provision at s 4(1) that: The assent of the Parliament is hereby given to adoption by Her Majesty, for use in relation to the Commonwealth Royal style of Australia and its Territories, in lieu of the Style and Titles at and Titles in relation present appertaining to the Crown, of the Style and Titles set forth in the Schedule to the RST Act, and to the issue for that purpose by Her Majesty of Her Royal Proclamation under such seal as Her Majesty by Warrant appoints.
(e) The applicant also failed to note that the Royal Style and Titles Act 1953 (Cth) received the Royal Assent of Queen Elizabeth II. Similarly, the Royal Style and Titles Act 1973 (Cth) again provided Parliament’s consent to the Queen changing her royal style and titles, as were effected by a Royal Warrant on 19 October 1973, just as had occurred with King Edward VII in 1901.
Arguments of this type have been consistently rejected by many courts, although the applicant addressed none of the authorities: see; Joosse v Australian Securities and Investment Commission [1998] HCA 77; (1998) 159 ALR 260, 263 [12]; Sharples v Arnison [2001] QCA 518; [2002] 2 Qd R 444; Kelly v Campbell [2002] FCA 1125; Gunter v Hollingworth [2002] FCA 943; Lohe v Gunter [2003] QSC 150; Clampett v Hill & Ors [2007] QCA 394; Sprlyan v Wyborn [2019] WASC 227.
The applicant also complains that various Prime Ministers’ and Cabinet Ministers’ oaths did not include oaths (or affirmations) of allegiance to the Monarch in the form of words set out in the schedule to the Constitution. The oath set out in the Constitution is required to take up a position as a member of the House of Representatives or the Senate. Each Member and Senator takes the oath set out in the Constitution. Since 1991, the oath of allegiance has not been repeated upon being sworn in as a Minister as it has previously been taken. This argument is without foundation.
The 12 points raised in the Application can be briefly dealt with:
(1) The applicant has not raised any evidentiary basis for doubting the authority of the Court.
(2) Section 4 of the Crimes Act 1914 (Cth) deals with common law principles relating to criminal liability for offences pursuant to the legislation. Section 4 is irrelevant to these proceedings.
(3) Section 80 in Chapter III of the Constitution requires trial by jury for offences prosecuted on indictment. Section 80 is irrelevant to these proceedings.
(4) The request for proof of authority has been dealt with above. (5) These proceedings do not engage s 80 of the Constitution for the reasons set out at (3) above. (6) The Federal Court of Australia Act 1976 (Cth) is not relevant to these proceedings as the proceedings are not pending in the Federal Court.
(7) There is no basis to doubt the assent to the Family Law Act for the reasons set out above.
(8) There is no basis to doubt the appointment of the Governor-General for the reasons set out above.
(9) Governors of States are irrelevant to the federal jurisdiction and need not be addressed here.
(10) The Public Governance, Performance and Accountability Act 2013 (Cth) applies to Commonwealth entities exercising executive powers and corporation sole. The Court does not exercise executive powers: see R v Kirby; ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254. Thus, the Public Governance, Performance and Accountability Act is irrelevant to these proceedings.
(11) and (12) Arguments as to the appointment of the Chief Justice are irrelevant to these proceedings as the case is not being heard by the Chief Justice. As none of the applicant’s arguments have any merit the Application in a Case filed on 12 September 2023 must be dismissed.
