Foundational Issues for Australian Law

These notes were prepared in 2010 as part of a presentation to the Federal Court, clarifying some foundational issues of Australian law.

The Australian Constitution is not an obscure document only interpretable by lawyers after much study. On the contrary, it was deliberately written to be a document that the common man could easily understand and interpret.

Hansard 19-4-1897 Constitution Convention Debates
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand.

Hansard 22-2-1898 Constitution Convention Debates
Mr. SYMON (South Australia)
This Constitution we are framing is not yet passed. It has to be handed over not to a Convention similar to this, not to a small select body of legislators, but to the whole body of the people for their acceptance or rejection. It is the whole body of the people whose understanding you have to bring to bear upon it, and it is the whole body of the people, the more or less instructed body of the people, who have to understand clearly everything in the Constitution, which affects them for weal or woe during the whole time of the existence of this Commonwealth. We cannot have on the platform, when this Constitution is commed to the people, lawyers on both sides, drawing subtle distinctions, which may or may not be appreciated by the people.

Consistent with the intent of the framers of the Australian Constitution is the finding by Barwick C.J. in Watson v Lee 1979.

WATSON v LEE (1979) 144 CLR 374 BARWICK C.J.
To bind the citizen by a law, the terms of which he has no means of knowing, would be a mark of tyranny.

Many of the following points of application of the Australian Constitution are self-evident, applying the simple facts as they present themselves, in the spirit in which the Australian Constitution was created.

The framers of the Australian Constitution regarded their work as providing members of the Australian public with a document commensurate with the Magna Carta in its significance.

Hansard 17-3-1898 Last sitting day of the Constitution Convention Debates; (Official Record of the Debates of the National Australasian Convention)
Mr. DEAKIN. –
After that comes encouragement in the reflection upon the giant stride towards prosperity, power, and prestige which this union will enable us to accomplish. What a charter of liberty is embraced within this Bill – of political liberty and religious liberty – the liberty and the means to achieve all to which men in these days can reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good Government for the whole of the peoples whom it will embrace and unite.
Mr. SYMON (South Australia). –
I wish to say one word or two before we part. I do not int to enter into any detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in framing. But, sir, no man can remain unmoved upon this momentous occasion. We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves.

The Federal Court of Australia exists as a product of the Australian Constitution, as prescribed in the Constitution Chapter III The Judicature.

The Australian Constitution exists as a product of the sovereign free will of members of the Australian public who chose, as electors, to ratify that Constitution over 100 years ago.

The Australian Constitution provides that men and women of Australia maintain authority over that Constitution, holding sovereign power to am or disband the Constitution through the power of their vote, as specified in Section 128 of the Constitution.

The Australian Constitution and all that springs from it, including the Parliaments and Judicature, exist to serve the Australian public.

The Australian Constitution defers to the Monarch of England and requires every senator and member of the house of representatives within Australia to swear or affirm allegiance to the incumbent King or Queen of the United Kingdom of Great Britain and Ireland, as prescribed in the Australian Constitution S42 and the Schedule.

SCHEDULE.
OATH.
I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD!

According to the Preamble of the Australian Constitution it is clear that members of the Australian public agreed that they humbly rely on Almighty God and that the Australian Constitution established Trust with the Crown of the United Kingdom of Great Britain and Ireland.

Commonwealth of Australia Constitution Act 1900 (UK), Preamble
“WHEREAS the people of New South Wales, Victoria, South Australia, Queensland; and Tasmania, humbly relying on the blessing of Almighty God, have agreed 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”.

Thus the Australian public placed its rights and freedoms into Trust with the Crown of the United Kingdom of Great Britain and Ireland, “under” the said Crown. This the Applicant refers to as the “Crown’s Trust”.

Those who bear the Crown of the United Kingdom of Great Britain and Ireland are bound by oaths and enactments of their forbears, to uphold the Imperial Acts of the monarchs of England.

A principal commitment which binds Her Majesty Queen Elizabeth II, as incumbent bearer of the Crown of the United Kingdom of Great Britain and Ireland, is the oath to provide and protect “justice and right” as promised over seven hundred (700) years ago in Magna Carta and reiterated multiple times subsequently.

Magna Carta expresses the Crown’s Promise that “we will not deny or defer to any man either justice or right” Edward I (Magna Carta) [1297] 25 c. XXIX, which Crown Promise is reaffirmed in Charles I (Petition of Right) [1627] 3 c. I and Habeas Corpus Charles I [1640] 16 c. X.

The Magna Carta Crown Promise, “we will not deny or defer to any man either justice or right”, not only binds Her Majesty Queen Elizabeth II, but all those who have sworn an oath or affirmation of allegiance to her.

The term “we” in the Crown’s Promise binds the bearer of the Crown and all officials and processes which spring from or are contingent upon the person or authority of the monarch bearing the Crown.

Therefore every expression of the Australian Commonwealth that springs from the Australian Constitution, including each of the three branches of Government, being the legislature, executive and judiciary, is bound by the Crown’s Trust with the Australian public, and the Crown’s Promise to not withhold or delay either justice to, or the rights of, the Australian public.

Men and women who are “electors” as defined in the Australian Constitution S128 hold authority over the Australian Constitution and thus the Australian nation, including the Parliaments and Judiciary.

Australian Constitution Chapter VIII ALTERATION OF THE CONSTITUTION
Mode of altering the Constitution.
(Paragraph altered by No. 84, 1977, s. 2.)
128.
This Constitution shall not be altered except in the following manner:-
The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.
And
When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

Thus the Australian Constitution, while it exercises itself over the Australian public, is also subject to the Australian public. Flesh and blood men and women hold power over the Constitution, and thus they hold power over everything within the Commonwealth of Australia that springs from that Constitution.

Corporations are not men, and Australian corporations are mere legal fictions created by statutory law in Australia. Corporations are mere pieces of paper, do not have a soul and do not have flesh and blood existence or authority, such as is possessed by men and women of the land.

While the Crown’s Trust and the Crown’s Promise are with flesh and blood individuals, the Crown’s Trust and the Crown’s Promise are not provided to corporations.

Flesh and blood men and women employ Limited Liability Companies to limit their liability in business transactions. However, by doing so they interpose a statutory entity between themselves and others. That statutory entity is a legal fiction amounting to nothing more than a piece of paper. By employing such a device flesh and blood men and women limit their liability, but in consequence they also limit their access to the Crown’s Promise and the Crown’s Trust.

The device of operating behind a legal fiction provides protection for men and women, but at a price of their “justice and right”. A corporation is not entitled to the same guarantees accorded to freemen in the Crown’s Promise and the Crown’s Trust.

Therefore men and women have superior standing before the Law in Australia, as beneficiaries of the Crown’s Trust and the Crown’s Promise, when compared with corporations.

The Sovereign is the “source of all justice”, thus the Crown, affording Australians the Crown’s Promise and the Crown’s Trust, provides that Promise and the benefits of that Trust by maintaining justice in the realm.

Halsbury’s Laws of England (3rd Ed) Volume 8 Constitutional law, The Royal Prerogative
(5) THE CROWN IN RELATION TO THE LAW
(i.) The Crown as the Source of all Jurisdiction
943    “Sovereign as the source of all justice. By virtue of the prerogative the Sovereign is the source and fountain of justice and all jurisdiction derives from her. Hence in legal contemplation, the Sovereign’s Majesty is deemed always to be present in court, and by the terms of the coronation oath, and by the maxims of the common law as also by the ancient charters and statutes confirming the liberties of the subject, the Sovereign is bound to cause law and justice in mercy to be administered in all judgments. This is however a purely impersonal conception, for the Sovereign cannot personally execute any office relating to the administration of justice nor effect an arrest and though all criminal suits must be brought in the Sovereigns name, she could not be non suited either in criminal or civil proceedings.”

There is no justice in Australian courts outside of the Sovereign. Absent the authority of the Crown in the court there is no jurisdiction in the court. Absent the Crown in the court there is no justice in the court. Yet the Sovereign’s Majesty cannot be “present in court” when that court violates the “terms of the coronation oath”, “maxims of the common law”, “the ancient charters and statutes confirming the liberties of the subject”, or “law and justice in mercy”.

Thus any court that provides for disseising a man of his freehold land contrary to the provision of the “ancient charters and statutes confirming the liberties of the subject”, including Magna Carta and Habeas Corpus, cannot have jurisdiction, because it cannot have the Sovereign present to violate the inviolate commitments of the Crown.

The authority of the Crown, as sealed upon the Australian Commonwealth by the Australian Constitution, is, according to item 5 of the Preamble, “binding on the courts, judges, and people” and thus the constraints and obligations under the Crown, as asserted in the Australian Constitution, are binding upon the Federal Court of Australia, and all other courts within the states of the Commonwealth.

Australian Constitution Preamble
Operation of the constitution and laws.

5. 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.

Whatever proceeds from the processes within this Court in this proceeding, the Court itself and all officers of the Court, and in particular those who have sworn oath or affirmation to Her Majesty Queen Elizabeth II, are bound by the Crown’s Promise and the Crown’s Trust and must ensure that full justice is provided to the Applicant, and that none of his rights are in any way abused or compromised, as a flesh and blood man benefiting from the Crown’s Trust and the Crown’s Promise.

The authority of the Crown stands supreme over the Australian Constitution and all that springs from it. The Crown’s Promise and authority are applied beyond the limits of the nation of Australia, and once held sway in so vast a geography that the sun never set upon its beneficiaries.

An oath of allegiance to Her Majesty Queen Elizabeth II thus has higher claim upon those who make it than any role, office or responsibility conferred upon them within Australia.

Any person who has sworn an oath or affirmation to Her Majesty Queen Elizabeth II and who then acts in a manner to deny or delay the provision of justice or right to a member of the Australian public is acting treasonously and in contempt of the Crown, and has voided their oath of office.

Any person who has sworn an oath or affirmation to Her Majesty Queen Elizabeth II and also made commitment, openly or in secret, to any other person, association, society, or any other thing such that their capacity to fulfil commitment to the Crown is diminished, must immediately relinquish or be stood down from any office or place of responsibility or privilege conferred upon them by virtue of their commitment to the monarch, or otherwise revoke the offensive commitment to another entity.

A Queen’s Counsel and others who function within the legal system in Australia who have sworn allegiance to Her Majesty Queen Elizabeth II are thus bound to deliver justice and right to men and women in Australia, putting members of the Australian public in a place of privilege over corporate entities, which are mere pieces of paper and legal fiction.

If such a member of the legal system prosecutes a case in any manner that denies or delays justice or right to flesh and blood members of the Australian public, particularly if that action is in favour of a mere corporation created under Australian statutes, then the said member of the legal system is immediately disqualified from the office of responsibility accorded to him or her by virtue of any oath or affirmation they have sworn to Her Royal Highness Queen Elizabeth II and must stand down or be debarred immediately.

Defining ‘Justice and Right’

Definition of terms can be vexing, especially in litigation, and it is therefore expedient to clarify the reference to “justice” and “right” in regard to the Crown’s Promise.

The simplest and clearest definition of those terms must spring from the context in which they were early expressed, and so the Applicant refers to the Magna Carta from which the Crown’s Promise is drawn.

Magna Carta 1297 Statute Clause 29
“No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties or free customs, or Liberties, or free Customs, or be outlawed or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgement of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Therefore “justice” and “right” must include the Crown’s Promise that no man will be “disseised of his freehold” “but by lawful judgement of his peers, or by the law of the land”.

The “law of the land” specified in the Crown’s Promise is the ancient common law of England, not maritime law, or statutory law as it may have been enacted in Australia since Federation.

Protection of land holding, as referred to in Magna Carta as “disseised of his freehold”, is a repeated issue in Imperial Acts of the monarchs of Great Britain.

[1354] 28 Edward III c. III
“Item, that no man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law.”

[1627] 3 Charles I (Petition of Right) c. I
“And where also by the statute called, The great charter of the liberties of England, it is declared and enacted, That no freeman may be taken or imprisoned, or be disseised of his freehold or liberties or his free customs, or be outlawed or exiled, or in manner destroyed, but by the lawful judgement of his peers, or by the law of the land.
And in the eight and twentieth year of the reign of King Edward the Third it was declared and enacted by authority of parliament, That no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disherited, nor put to death without being brought to answer by due process of law.”

When Australians are denied trial by jury or when their lands are taken from them without the prescribed due process embedded in common law and the Imperial Acts, an injustice has been committed.

2011 Update: You may note that many of the matters presented above are regularly ignored by Australian courts.  The problem is a destruction of the Rule of Law in Australia, where the Crown, Constitution and common law (three ‘c’s) are replaced by Corporations.

I have written about this in an article titled Rule of Law, posted at chrisfieldblog.com on 16 April 2011

Basis of Australian Law

Australian Law is the unifying law that has priority over all State laws.  The following discussion shows how that law is defined and shows how it is to be applied.

Note that Australia is a “Commonwealth” of states.  We wrongly think of Australia as a “Nation”, but the Australian Constitution created us a Commonwealth, also known as a Federation of States.  The best parallel in today’s global context is to think of the European Union.  Each of the individual countries is still a separate nation, but they are linked together in a commonwealth.  Similarly the former British colonies were all members of the British Commonwealth of Nations.

The ancient promises by Kings and Queens of England over the past thousand years can be described as the Crown’s Promise to protect the rights, liberties and justice of the people.  When I refer to the Crown Promise that is what I am referring to.

At Federation Australians placed their god-given rights and freedoms into the hands of the Crown of the United Kingdom of Great Britain and Ireland, effectively creating a Trust, by which the Crown is bound to protect and uphold all of those rights and freedoms.  When I refer to the Crown’s Trust that is what I am referring to.

Delivery of the Crown’s Promise and the Crown’s Trust is provided for, at least to some degree, by Australian Law, which law is referred to as the “law of Australia” in the legal case King v Kidman 20 CLR 425 (1915), wherein it is clarified that the judicial power of the Commonwealth is one and indivisible and cannot be divided into separate streams by any legislation enacted by any State or Federal Parliament.

King v Kidman 20 CLR 425 (1915)

QUOTE

“The common law of England was brought to Australia by the first settlers, and remains, as the heritage of all who dwell upon the soil of this continent, in full force and operation, except so far as it has in any portion of the land been modified by a competent Legislature. For State purposes and jurisdiction State laws may provide differently. But they cannot restrict the operation of the Constitution, and whatever it implies is the law of Australia, as much as if it were expressly so written.”

END QUOTE (emphasis added)

And

QUOTE

There is no power that can be pointed to in the Constitution enabling the Parliament to enact the common law as such, or to modify the common law as such.”

END QUOTE (emphasis added)

The significance of this is that no State law can restrict Commonwealth law, as the King v Kidman finding states, “For State purposes and jurisdiction State laws may provide differently. But they cannot restrict the operation of the Constitution, and whatever it implies is the law of Australia, as much as if it were expressly so written.”

Therefore the “law of Australia”, as defined by the High Court in King v Kidman, is defined by the Australian Constitution, not by State legislation and that State laws “cannot restrict the operation of the Constitution, and whatever it implies is the law of Australia, as much as if it were expressly so written”, and thus it is the Constitution which prescribes what the law of Australia is, including that which is only implied by the Constitution, and thus the law of Australia cannot be changed by state legislation.

All State legislation is subject to the “law of Australia”, found in the Australian Constitution.  That is why all laws in Australia can and should be tested against the Australian Constitution.

There is a belief by some that common law simply means the on-going cumulative collection of judicial decisions in cases as recent as today or yesterday.  This is not the true meaning of Common Law, as we see in the King v Kidman quote.  The Common Law cannot be changed by Parliaments.  New laws being passed by the State or Federal Governments cannot change the Common Law upon which Australia stands.

Common law is a body of historic English law, not an ever changing, ever evolving perception of law based on the increasing body of legal decisions.

The “law of Australia” has as its foundation the indissoluble English Common Law, as attested in King v Kidman cited above. This is consistent with the testimony of the Australian Courts Act 1828, stating that English Law is the law enforced in the courts.

Australian Courts Act 1828 Section XXIV
QUOTE
Provided also, and be it further enacted, That all Laws and Statutes in force within the Realm of England at the Time of the passing of this Act, (not being inconsistent herewith, or with any Charter or Letters Patent, or Order in Council which may be issued in pursuance hereof) shall be applied in the Administration of Justice in the Courts of New South Wales and Van Diemen’s Land respectively
END QUOTE (emphasis added)

Thus old Common Law of England is the foundation of Australian law and common law cannot be modified by any Parliament, because the only “competent Legislature” (see King v Kidman) is the body politic of the Australian people making such change by Referendum, which change the Australian people have not made.

Australian Law, then, is Common Law, and the imperatives of common law cannot be overturned or replaced by statute, either from a State or Federal Parliament. Creation of statutory provisions which empower sanction against a man or woman outside the lawful requirements of common law is an offence to Australian Law, since it violates the very foundation of that law.

Or, put more simply, Australian Law is the old English Common Law, and nothing Australian Governments enact as “laws” can be allowed to damage or diminish that common law.  All State laws that limit or deny your common law rights are illegal, attacking the very basis of Australian Law.

The indissoluble Common Law, an indispensable foundation of the “law of Australia” which prevails over all state legislation, is based upon the Holy Bible, as attested in judgement by Mr Justice Hargraves in 1874 in the case of ex parte Thackeray (1874 13 S.C.R. (N.S.W.) 1 at p.61) quoted below.

Ex parte Thackeray (1874 13 S.C.R. (N.S.W.)

QUOTE

“We, the colonists of New South Wales, ‘bring out with us’ (to adopt the words of Blackstone) this first great common law maxim distinctly handed down by Coke and Blackstone and every other English Judge long before any of our colonies were in legal existence or even thought of, that ‘Christianity is part and parcel of our general laws’; and that all the revealed or divine law, so far as enacted by the Holy Scriptures to be of universal obligation, is part of our colonial law – as clearly explained by Blackstone Vol. 1 pp. 42,43; and Vol. 4 pp. 43-60.”

END QUOTE (emphasis added)

Justice Hargraves’ declaration has not been overturned and stands as a definitive description of the place of the Holy Bible in Australian law.

Common Law and the Holy Bible from which common law springs require that legal action be just, on the basis of an injured party receiving the measured justice, appropriate to the injury.

Lawful limits prescribed in the Holy Bible are based on the concept of “eye for eye, tooth for tooth” (Leviticus 24:20), requiring the existence of an injured party and the prescription of a just penalty fitting the injury sustained.

Leviticus 24:17-22, Holy Bible King James Version

QUOTE

And he that killeth any man shall surely be put to death.

And he that killeth a beast shall make it good; beast for beast.

And if a man cause a blemish in his neighbour; as he hath done, so shall it be done to him;

Breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again.

And he that killeth a beast, he shall restore it: and he that killeth a man, he shall be put to death.

Ye shall have one manner of law, as well for the stranger, as for one of your own country: for I am the LORD your God.

END QUOTE (emphasis added)

The common law requirement of an injured party stands upon the provisions of the Holy Bible, and stands supreme in “the law of Australia” and “cannot be modified by any Parliament”, as stated in King v Kidman.

Common law requirement of an injured party with a lawful claim against another is codified from the Bible into Imperial Acts in Magna Carta 1297, where it is prescribed that only the damage sustained can be claimed and that claim must be tested by a body of peers of the man accused.

Magna Carta 1297 Statute Clause 14
QUOTE
[14] A Freeman shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement; and a Merchant likewise, saving to him his Merchandise; and any other’s villain than ours shall be likewise amerced, saving his wainage, if he falls into our mercy. And none of the said amerciaments shall be assessed, but by the oath of honest and lawful men of the vicinage. Earls and Barons shall not be amerced but by their Peers, and after the manner of the offence.
END QUOTE (emphasis added)

Note that Australian Law has been seriously undermined by many state laws (statutes) which allow for things that are denied under common law.

For example, it is not lawful for a person to be found guilty of an offence and penalised without being tried before a jury.  So every issue of a fine from a police officer, traffic camera or similar process is offensive to Australian Law.

Similarly, local councils do not have lawful right to prescribe charges and penalties upon people, yet they do.  So this is yet another abuse of Australian Law.

What has happened in Australia is that our leaders have decided to pass laws that attack the Australian Constitution, Australian Law, common law and your rights and freedoms.  Your rights and freedoms are not being protected, but are being undermined by modern laws.  Yet those state and federal laws are not lawful, because they attack the Australian Constitution.

Only the Australian public can make any change to the Constitution and a majority of them in all states must agree to any change before it can be made.  Yet politicians and courts have diverged from the Constitution and upheld laws that contradict Australian Law and the Constitution.

It is time to be attentive to what is going on and to reclaim our lawful foundations.  Nothing else is truly lawful.

Ultra Vires

Have you ever heard of a judge, policeman or official overstepping their authority? It’s common enough and it’s the focus of this discussion.

Ultra Vires means “outside the law” and it has to do with the Rule of Law. It also relates to the abuse of official power. I trust that none of you ever have to deal with such matters, but this discussion is for those who want to think about the matter or who may have to deal with it in some way.

Scot Free

I chatted with an elderly man today who I met while on my daily exercise walk. He is of Albanian extraction but was born and raised in Kosovo, back when it was part of Yugoslavia. Since I have been to both Kosovo and Albania we had much to chat about.

He related the various troubles the nation of Yugoslavia endured due to ethnic rivalries. One case prompted me to write this post. He told of a man who convinced a friend to assist him commit a burglary. Both men were caught and brought before the judge. The judge was of the same ethnicity as the first man and he instructed that man to go through a particular door. That door led the man to complete freedom. He was let off “scot-free”. The other man, however, was sentenced to 12 years in prison.

scales

Now, that’s an example of the abuse of office. The judge had acted “ultra vires”, outside his official authority. Either both men were guilty or both men were innocent. Favouring his own kind was an abuse of official power.

Rule of Law

Back in 2004, when I was in Cape Town waiting to travel to Zimbabwe I was shocked to see a newspaper headline declaring complete collapse of the Rule of Law in Zimbabwe. I read the article with keen eyes, concerned about whether I should cancel my travels there. I had visions of rioting and looting in the streets as we saw in the LA race riots.

What had occurred was that Prime Minister Robert Mugabe rejected a decision of the High Court in Zimbabwe. The dramatic headline was targeted at Robert Mugabe, not the ordinary man on the street. When we arrived in Harare we found it perfectly safe and a great place to minister to people.

In the Zimbabwe situation the PM resisted the lawful finding of the courts. He wanted to operate “ultra vires”, outside judicial restraint.

Model Traffic Rules

Kenneth Wayne tells of his experience as a young officer in the late 1970’s watching a political lobbyist advise politicians about the Model Traffic Rules which the  lobbyist wanted them to implement. When it was pointed out that the rules violated the American Constitution the lobbyist responded by pointing out that most people will never realise that the rules are unlawful and until someone successfully overturns the rules the government will rake in much more money.

That legislation, which did come into effect some time later, was “ultra vires”. It was outside of the law. The politicians who put it in place ignored the law, knowing that the public would be easily duped and would be powerless to stop them.

Going Ultra Vires

Operating outside the law is an appealing option to those in power, those who wish to get their way and those who have personal agendas to push. Whether it is letting someone off lightly or duping others into giving in to your demands, the act of going ultra vires is common enough.

Such terms as nepotism and discrimination reflect the human tendency to use positions of power and influence to cater to their own agendas. In most such cases the person has had to violate the rules and regulations, thus they have gone ultra vires.

Here Lies the Law

In some places the rule of law has been buried long ago. People do not get justice and those who can bribe and push their way forward get all the advantages.

In other places the law appears to be alive and well, but the laws have been adapted and morphed into laws that are outside the lawful constraints put on the Governments or officials.

The surest proof that the true rule of law is alive and well is that everyone is effectively held accountable for their handling of the law. Where people resist calls to account for themselves, then you can be certain they are operating ultra vires and don’t want to be stopped from doing so.

“Alas poor law, I knew him well…”

Illegal Laws

In an earlier lesson, Logophile on Law, I explained that there are various types and levels of law which impact us. Not all laws are equal, even though we call them all “laws”, and so it is important to understand the various types of laws and which ones apply to us.

This lesson jumps into the subject of Illegal Laws, showing that just because something is called a “law” and someone asserts, “It’s the Law!” does not mean we are bound to obey it. In fact it may be most appropriate for us to challenge that law, as an Illegal Law.

gavel

Oxymoron

It seems to be a contradiction in terms to say that a law is illegal. Such a contradictory thing is an oxymoron, where the description is too outrageous or inappropriate to be real.

The way a law can be illegal is if it contradicts the higher laws upon which it stands. Since laws are hierarchical, depending on a higher law to give them their authority, it is illegal, yet possible for a lesser law to be created which violates the higher law which it relies on for its authority. In such a case the lower law is invalidated by its own violation of the higher law on which it stands.

A secretary is not officially allowed to boss their boss. A General is not authorised to use the soldiers under his command to attack the Military Commander. A policeman cannot assume the office of President. Similarly, rules made by a sub-committee cannot overturn the rules of the club which the committee serves. Each is subject to the higher rule.

Hierarchy of Law

I contend that the highest law is Divine Law, the laws of God. Since God created us we are all accountable to Him and will be evaluated against His moral order.

In the Australian context, similar to many nations, the human legal basis on which the nation stands is that of Common Law and the Imperial Acts (Laws made by the ruling English monarchs over many centuries). Those laws reflect the application of Biblical Law (the Laws of God as given to us in the Bible).

When Australia was created as a nation, just over a century ago, a Constitution was created to define the new nation and how its government and law is to operate. The Australian Constitution was built upon the foundation of Common Law and the Imperial Acts.

All statutes (what the Government calls “laws”) created by people in authority in Australia are only possible because of the Constitution, and its foundation in Common Law and Imperial Acts. Those government ‘statutes’ are simply the local rules for functioning within Australia. They are much lower in authority than God’s laws and the principles of Common Law and the Imperial Acts.

Statutes

We call statutes “laws”, even though they are significantly inferior to God’s moral law, Common Law (which covers murder, injury, theft and deception) and Imperial Acts, which define the legal principles by which people are to be governed.

Statutes are not ‘laws’, strictly speaking, but are treated as if they are laws by those in the society to which they apply. They are “given the force of law”, even though they are not of the same order of laws as moral law (God’s Law, Common Law and Imperial Acts).

The only reason government agents, parliaments and others in a country can create “statutes” is because they are given some right to do so by the Constitution. And the only reason the Constitution holds any authority is because it is based on Common Law and the Imperial Acts.

Contradictory Laws

If a State or Federal statute (called a ‘law’) is contrary to the Constitution, Common Law or the Imperial Acts, then the statute is invalid. No statute can contradict the authority on which it relies.

Consider a person becoming the Prime Minister of Australia, by normal Constitutional processes, then declaring himself to be the King of Australia. He could argue that, as Prime Minister, he has the authority to elevate himself, but the Constitution does not give him that privilege. He can be Prime Minister, but not take additional, non-legal authority.

As soon as such a leader acts unlawfully he disqualifies himself from holding the authority lawfully entrusted to him. You cannot violate the law on which you stand without violating your right to stand.

Restrictive Laws

A statute from a Government, State or official department within a country can only restrict freedoms. No government has the right to give you freedom to break the law. Governments cannot lawfully make murder, rape, theft or deception legal. They are not able to lawfully declare an illegal action to be legal. So statutes never increase a person’s freedoms. They can only take some right or freedom away – supposedly “for the greater good”.

Our real laws come from God and have been distilled into the Common Law and sealed by Imperial Acts. That is where are true legal position is found (at least in former British Commonwealth nations). Statute laws cannot overturn those primary laws. All statutes can do is further restrict human freedom by regulating what people can do and how and when they can do it within the national setting to which they apply.

Illegal Government Actions

Governments and their officials may find themselves frustrated by the limitations they are under, and choose to go outside the law or their lawful authority (ultra virez) in order to have their way. If they want more money, for example, they may impose taxes or fees which are outside their legal authority to impose.

If getting the citizens to fit in with the government’s agenda proves too difficult for the government it may be tempted to pass a “statute” which demands that people do what they want.

In such situations it is possible for governments to act outside their legal rights and responsibilities. Governments may pass statute laws or make demands of their citizens which contradict the freedoms given to those citizens in Common Law, Imperial Acts or in their Constitution.

Governments have had to repeal (revoke) laws they created but which proved to be illegal. Governments have had to pay compensation to various citizens or entities which were wrongfully treated by the rules, decisions, statutes and actions of the government. This is not a mythical phenomenon, but a reality of human fallibility, ignorance or opportunism.

USA Tax Laws

There is much discussion about the fact that the tax laws in the USA are outside the law. It is claimed that it has been proven in court that there is no law upholding the American taxation regime. Yet the tax office operates with vigour and successfully pursues and penalises American citizens.

Some would argue that the USA Tax Laws are illegal laws, denying American citizens their rights and freedoms. I can’t speak to that subject, but there is an abundance of discussion available for those to whom it may relate.

Illegal On-the-Spot Fines

One of the privileges which Australian citizens enjoy is protection through the historical Imperial Acts of English monarchs. One of those Imperial decrees gives every citizen the right to a trial by a jury of 12 of their peers before they can be determined to be “guilty” and before any penalty can be imposed on them.

Every “on-the-spot fine” and every charge made on a citizen before there has been a legal conviction before a jury in a duly convened court of law is contrary to the legal rights of Australian citizens. Yet most Australians pay those fines, or go to court to fight and only end up with a greater penalty than they started with.

Ignorance is Not Bliss

Ignorance of the law means many people are denied their rightful rights (silly to have to say it like that). Because most citizens are ignorant and are happy to stay that way, they have been duped by populist ideas.

They believe that the more modern laws have superseded the old ones and that society is evolving all the time. They think that something from 100 years ago is really ancient and has lost its significance. They think that the ruling of a magistrate or the interpretation given by a current legal adviser is the final word in legal reality for them. They think that a new law completely eradicates the previous legal reality.

Ignorant citizens do not know what their true position is. They do not know what protections they have. They do not know their rights. They think their legal standing and their rights are gifts from their government, and not from God.

Get Your Own Education

This lesson is a wake-up call. But if you are determined to stay asleep and to live under the control of laws that may not be laws and “laws” that are “illegal”, then I can only wish you well.

It is not my place to live your life for you. It is not my place to save you from your own wilful ignorance. You have a free will given you by God and you have to answer to Him, not to me, for how you use it.

My job is to rattle your cage and shout “Wake Up!”

Now, I’ve finished for the time being.

I think I’ll have a nice cup of tea and leave you to your own future. Happy legalities !!!!

Logophile on Law

Law is a word that fools us. Since law has serious impact on our lives we need to understand the term and how to use it properly. Importantly, we need to be aware of how it is used against us.

Some people come under the penalty of law, when the “law” used against them was not a “law” at all. You are most likely fooled by the use of “law”. So it is important that you understand the word, how it is used and what implications it has in your life.

Law is a Vague Term

Some words are used in multiple applications, with different meanings. A young woman tells her infant brother that she wishes to marry a man because she ‘loves’ him. The infant then replies that he is going to marry chocolate, because he ‘loves’ chocolate.

Love is used so broadly that its technical meaning varies in different situations. You can love sport while sport is not the love of your life. You can love your spouse, but also love getting away on your own.

The ancient Greeks used several different words for our English word ‘love’, differentiating between: attraction to the appearance of a thing; humanitarian or family concern; sexual attraction; and sacrificial commitment for the good of others.

Law is similarly a vague term. It refers to such unchangeable things as the laws of nature, but also to such changeable things as the rules of a club.

It’s the Law

When someone informs you that something “is the Law!” you can be misled as to their meaning. What type of ‘law’ is it? Who made that law? By what is it enforced? What are the consequences of breaking that law? Who is bound by that law?

Many things are the ‘law’ and have profound consequences for some people, yet can be completely ignored by others. Just because something is “the law” doesn’t mean most of us have to give any credence whatsoever. The trick is to know what is ‘law’ and what is ‘law’. That is, we need to differentiate between one law and another.

Others May but I May Not

A police officer is bound by more laws than the average citizen. Anyone who has sworn an oath of office, taking on special responsibility, is under stricter controls than normal citizens. For example, ordinary citizens are not bound by law to give their name to a police officer, but a police officer must give his name to any citizen who asks for it.

Lawyers and Barristers have sworn special allegiance to the courts, in order to be allowed to deal with the special legal matters of the court. So an ordinary citizen has much greater freedom in a court of law than their legal team does.

It is a case of “others may, but I may not”. Others may ignore the instructions or demands of a judge, but a barrister does not have that privilege. Others may ignore the demands of a police officer (under certain circumstances) but a police officer may not ignore the demands made of him or her.

Categories of Laws

Here are some of the various types of law that impact you in your normal life. There is Divine Law, Natural Law, Common Law, Imperial Law, Constitutional Law, Statute Law, Local By-Laws, Club Rules and House Rules. There are also such laws as the Laws of Nature, Maritime Law, Contract Law and International Law.

Divine Law involves mankind’s moral accountability to the Creator, who is the ultimate moral being and who holds all people accountable against His own moral standards. Such laws as the Ten Commandments and the teachings of Jesus Christ convey man’s moral responsibility to God’s Law.

Natural Law involves the natural rights and responsibilities which attend natural existence. Such things as the right to self-defence and the right to maintain and sustain life are included here.

Human Legality

While Divine and Natural Law seem to be the most basic foundation for law, they are not man-made, but spring from either the nature of our existence or the One who created us. So the next areas of ancient law (Common Law and Imperial Law) represent the early expressions of human law which have passed to many nations.

Common Law is the body of laws which developed in England over centuries, where God’s Law, especially as expressed in the Book of Deuteronomy, was applied to situations and codified into a body of rights and responsibilities. Common Law is principally focussed on limiting people’s impact on others (no murder, injury or theft) and making people accountable for their own actions (bound by their promises).

Imperial Law involves all the laws of English monarchs, which further codified Biblical, Natural and Common Law into principles by which due legal process is to be applied. Such documents as the Magna Carta from over 700 years ago are still upheld as foundations for legal practice and principle followed today. Most English speaking and former British Empire nations have ratified their continued reliance on Imperial Law. Imperial Laws have not decayed with time, but are enduring elements of what is law and lawful today.

Modern Law

While all those laws mentioned so far are perfectly modern in their validity, most unlearned citizens think of them as somehow outmoded and not relevant today. Modern people think of their nation’s constitution and the government-enacted laws (statutes) as modern law.

Constitutional Law involves that body of law which is created to define a nation and how it will operate, politically and legally. Many nations have a constitution: that which constitutes (brings together) the nation itself. All of the parts are the constituents. All legal and political practice within the nation has to be based on the law that “constitutes” (or creates) the nation.

Statute Law involves all those “laws” which are created by governments. Once a nation has been constituted (via its Constitution) its elected or appointed officials may need to create the Rules for the effective operation of the nation. Those “laws” are actually “statutes”. They are rules which are given the force of law, and are generally treated as equal to those higher laws upon which the government has been founded. Statutes are binding upon the members of the club or society which created them.

Local Law involves those rules which are created by local councils, regional administrations, clubs (for their members), social organisations, etc. For example: a student at one school is told that he must wear a particular uniform on certain days. But that localised rule, while effectively the “law” for some students, has absolutely no hold over students attending a different school. One local council may prohibit the lighting of fires in people’s yards, while the neighbouring city might encourage such fires. Local laws only apply to those who are bound by them, by membership of some group or other.

Question The Law

Which laws apply to you? If other people create a rule for them and their club, does that have any hold over you? Is the law being applied to you a Divine moral responsibility, or is it simply a statute made up to facilitate social order?

Is the law that is being pressed upon you really a law at all? If a local or statute law is against the higher laws on which they stand, then can it be a lawful law at all?

Can a government morally uphold a law that rejects or breaks God’s Law? Can a local or state government legally create a law that violates that nation’s Constitution?

When someone tells you “It’s the Law”, what do they really mean? It may be “law” for them, but is it law for you? If two laws contradict each other, which law should you obey?

A Lawful Mind

The information and questions in this lesson are to prompt you to know where you stand before the law and how you should respond to the laws you are told to obey. I want you to have a deeper and richer understanding of the law than many of those around you who say, “It’s the Law!”

Give these matters some serious thought and seek to develop a wise and lawful mind.