Community Law Resource Group

Words 4105 23^rd May 2002. Newcastle University Assignment

” What conception of the Rule of Law is evident in the opinions expressed in Kable………”

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

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In the Kable Case, a doctrine which has been peddled mercilessly by Court after Court in Australia was proved to be jurisprudentially untenable. The doctrine is the doctrine of Parliamentary Supremacy. It was first debunked by Lord Chatham in 1770, in the High Court of the United Kingdom Parliament, again in 1950 in the Communist Party Case[1], and again in the Kable case. Three strikes and it is out. It can no longer be pretended that the High Court of Parliament assumed the Divine Right of Kings so vigorously rejected in the Glorious Revolution[2]. The Doctine of Parliamentary Supremacy is a fraud. Fraud is defined in the Criminal Code Act 1995 ( Cth) as dishonesty. It is and remains dishonest, after Kable, to pretend that there is a doctrine of Parliamentary Supremacy vested in Parliaments organized into political parties. Jurisprudence owes a duty to the greater public to bring to the light this fraud.

Organized crime and organized groups[3] in society both have an interest in abolishing the rule of law. Jurisprudential lawyers have a duty to resist this trend. It is common knowledge that the Catholic Church is authoritarian. They are very well organized. Balancing their influence is the organization of Protestants who profess masonry, and swear to uphold what they call the Open Book. Both groups have representatives in the Parliaments and in the judiciary. The influence of these groups undermines the rule of law, because the loyalty of the individual is divided. They profess loyalty to Her Majesty, while concurrently swearing loyalty to another authority. The Courts are an entity which are supposed to blindly balance the competing interests.

This balance is corrupted when both fact finding and executive functions are vested in either a Catholic or a Mason, or any other single individual. Organised crime is able to exploit human weakness, using alcohol, drugs, intimidation by the threat of violence, blackmail or the provision of prostitutes when the fact finding function is vested in one man or woman. That is why the common law requires a jury of twelve. It is a practical application of the gambling law of large numbers. In a large number of randomly selected people there is unlikely to be a dominant faction. Society is the poorer. Fear stalks the land, and no person is allowed to defend his home. Crime rates are on the rise and Police are unable to cope. Terror is a weapon far more deadly than a gun, and it has no place in a representative democracy. Terror can only survive under arbitrary[4] rule.

In 1640, the High Court of elected Parliament of the United Kingdom recognized that it was not possible to trust any public official in High Office, and having endured the Courts of Star Chamber and discovered what evil this system caused to the Kings subjects, moved to abolish those Courts forever. The conception of the Rule of Law evident in Kable, is that human beings always forget, and always try to reinvent what has been tried and trusted. The positivist schools of law, represented by H.L.A Hart[5], Ronald Dworkin[6], and even Kelsen[7] and Radbruch[8] would be appalled if presented with all the evidence[9] which could have been led to acquit Kable and was not led. They would be delighted that in the end the black and white law of the Constitution[10] prevailed.

Professor of Common Law at Oxford, A V Dicey[11] was to become one of the most respected English legal writers, ever; especially, in respect to constitutional law. Dicey was very much concerned “to the modern threat to freedom in the incursions that were being made into The Rule of Law. Dicey concluded that “the twin pillars upon which our system rests,” to quote Professor Keeton[12] (The Passing of Parliament), “are the sovereignty[13] of Parliament and the supremacy[14] of the common law, administered in the ordinary courts independent of the executive over everyone within the realm, whether public official or private citizen.” [15]Dicey’s Law of the Constitution (1885) has a “comprehensive and luminous introduction.”

The phrase: “Sovereignty of Parliament and the supremacy of the common law” is a schizophrenic[16] mutually exclusive expression of the absolute corruption of the rule of law evidenced time after time when Courts blindly follow statute. There can only be one Supreme. It is either a Parliamentary dictatorship[17], guaranteed by Party discipline, or the Federal Supreme Court to be called the High Court of Australia as dictated by the Constitution Section 71. Which is it to be? An influential group of concerned individuals in some law schools and the community want it to be the Constitution.

I quote the definition of the Rule of Law given by Albert Venn Dicey (1835-1922):

“… every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] … and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.” (Law of the Constitution.)

This principle was applied at the Nurenberg War crimes trials to deliver justice to the criminals who served the third Riech. It must apply equally in a modern Australia.

Jeremy Bentham[18] and John Austin[19] would be beside themselves with the discomfiture they could have inflicted upon the makers of the minority judgment[20]. The Court was full of modified positivists. The modified positivists believe that Parliament can do whatever it pleases and have the Courts blindly do their bidding. A true positivist, as was Sir Maurice Byers ably argued that the super rule above all others, was the Constitution. This argument prevailed.

In 1828, Her Majesty, by the Grace of God saw fit to erect courts in the then growing colony of New South Wales[21]. As soon as there were enough people to do the job, Her Majesty, in her wisdom, advised by Her Privy Council, complied with the terms and conditions of the Magna Carta and the Habeas Corpus Act 1640, and installed juries[22] in every Court to determine questions of fact. In 1986, the Parliament of the Commonwealth confirmed that the Australian Courts Act 1828, is still law. By purporting to repeal Section 15 of the Australian Courts Act 1828 the peoples judges of fact in Parliament have confirmed that the rest of the Act is intact.

There was much argument in the Court on the 7^th December 1995 between McHugh J and Sir Maurice on the true definition of Parliament. McHugh called it a Court. Sir Maurice demurred. In truth Justice Michael McHugh is absolutely correct. On the authority of Earl Jowitt[23], whose DICTIONARY OF ENGLISH LAW was published in 1959, Court is defined. On Page 520 he states that there is a High Court of Parliament. On page 908 he says “ High Court of Parliament see Parliament.” On the authority of Lord Chatham[24], who I will now quote, I assert that strongly again. Speaking of Wilkes, he said: “ in that court of judicature where his cause was tried, I mean the House of Commons.”

Julius Stone[25] in his book, HUMAN LAW AND HUMAN JUSTICE on page 76 quotes Blackstone on natural law. “ no human laws are of any validity if contrary to this, and such of them as are valid derive their force and all their authority mediately or immediately from this original.” He then goes on to say Blackstone[26] accepted the doctrine of absolute parliamentary supremacy. These two ideas cannot sit together. It demonstrates the distrust of High Public Officials proscribed in the Habeas Corpus Act 1640, is and remains well founded.

Would it not be better to accept that there is no infallible rule. That the true position is a positivist, premodern, interpretation, based upon the meanings of plain and unequivocal English words. That the ultimate rule is that a rule ( or law) that a jury will not enforce is “ultra vires.” Kable demonstrated that natural law has a place in the courts, but it was given power by a positive law. “Equity,” says Stone[27], “ showed for centuries a “magisterial”[28] censorship of a natural law kind. …What else for instance, was the chancellors confident proposition that the Statute of Frauds may not be made the instrument of fraud?” This demonstrates either an intellectual laziness on the part of jurisprudential thinkers since Bentham, or a remarkable ability to give presumptions the cloak of authenticity, despite evidence to the contrary.

If we strip away what is quite demonstrably a myth, that Parliament is some divine body, and is nothing more or less than the privy[29] council constituted by elected mortal representatives to advise the Queen, then we can scientifically start to analyse the question. The actual Privy Council is defined in Jowitt[30] as Cabinet. In that case, Federal Cabinet is the Australian Privy Council. So timid and intimidated by the Parliament of the United Kingdom were the colonists of Australia that they have failed for 100 years to apply section 74 of the Australian Constitution. The bedazzlement of almost all Australian lawyers with English law, has until 1986 been so total and utterly sycophantic that no one has ever suggested an Australian Privy Council is not only possible but exists. If Earl Jowitt is right, then the Australian Privy Council consists of all living cabinet ministers, past and present. In England membership of the Privy Council was for life. Sir Robert Menzies was one and so was Arthur Calwell on Menzies nomination. It is above petty politics. It could be called on forty eight hours[31] notice.

Why else would the Privy Council[32] be denied jurisdiction on Constitutional questions. The only justification for that denial, is that the words, Federal Supreme Court in Section 71 Constitution mean what they say. When appeals to the Privy Council in England were purportedly abolished, could the Parliament do such a thing. In the name of nationalism, they could do it, because it never existed except in the minds of lawyers. In fact the Australian Privy council should have been the ultimate appeal Court since 1900. Logically, Section 49 Constitution would then make Cabinet appellable to the whole house, in a combined sitting. Even then, the Common Law as evidenced by Section 2 Judicature Act 1876 (Q) prohibited Parliament from finding facts. The separation of powers demands it.

The Queen must take advice from several quarters. She must take advice from the High Court of Australia on Australian law. She must also take advice from the Parliaments of Australia. If they are all courts with defined jurisdiction, [33] then Section 71 Constitution which defines a Federal Supreme Court is decisive. It is supreme. It is also unable to recognize its own power. Like Blackstone[34], it is trying to marry the doctrine of Parliamentary Supremacy with binding restrictions on that supremacy. It is like trying to mate a cat and a dog. It simply is not natural.

The Habeas Corpus Act 1640 [35] imports absolutely the guarantees on the rights and liberties of subjects of Her Majesty, who reside within the self governing colony referred to in the Section 8 of the Commonwealth of Australia Constitution ACT. Section 8 abolishes the Colonial Boundaries Act 1895 , and creates one colony, “united in one in dissoluble Federal Commonwealth”[36]. The High Court of Australia by a majority arrived at the same result, that would have ensued if Gregory Wayne Kable had been indicted[37] and acquitted. Sir Maurice Byers, then 78 years old, knew Kable was right to object to his Star Chamber[38] treatment. Kable pleaded the Constitution. He pleaded it at first instance, on appeal and in the High Court. His plea was not heard by Levine J, and Kable was jailed for six months under the Community Protection Act 1994. Grove J, another Supreme Court Justice was more circumspect. He refused to jail Kable, after two learned professors[39] voiced criticism of the legislation. The hand of the Director of Public Prosecutions was forced to take it to the Court of Appeal. They affirmed the legislation. Kable was granted leave to appeal to the High Court of Australia. He was successful there. The decision was four to two[40].

The entire Court has forgotten its obligations to the Australian people and to itself, by failing to enforce its judgments as law, and failing to uphold the rules of law it promulgates. The State of New South Wales had committed the most vile trespass possible on Gregory Wayne Kable. They had taken away his liberty without due process under the rule of law . They had erected a Star Chamber, where one Australian could put another Australian away. They had convinced one of their public officials[41] to act as an arbitrary judge. This was and is absolutely unconstitutional. After the English had had their Star Chamber for some years, they abolished it by the Habeas Corpus Act 1640. 16 Car 1 c10. They then declared the law with regard to the Crown. “The King or his privy council shall have no jurisdiction over any man’s estate[42].”

That law was law in New South Wales at the formation of Australia as one colony, or an independent nation. It was a condition precedent to the formation of that entity. If Dicey, Bentham, Austin, HLA Hart and Dworkin, as jurisprudential thinkers are correct, then the plain words of section 118 Constitution are and remain sufficient to bring in the Habeas Corpus Act 1640. 16 Car 1 c10. Sir Maurice Byers urged the court to apply Section 109 Constitution, coupled with section 5 of the Commonwealth of Australia Constitution ACT.

The rule of law depends upon estates. A mans estate is his body and all his possessions. Trespass upon any part of that estate is unlawful. It has been unlawful since before the Magna Charta in 1215, but before that, the King was allowed to trespass. On pain of civil war, the King granted to his subjects a Great Charter, which was to govern, and has governed relations between the Crown and the subjects of the kingdom ever since.

Public officials had the charge of that Charter, and over time came to thinking that the law did not apply to them. It fell into disuse and was put aside for a time. The Habeas Corpus Act 1640. 16 Car 1 c10. ended nearly 20 years of near anarchy. That King who allowed the anarchy to happen was executed nine years later by order of the Parliament, by one vote. Parliament won the battle between the King and Parliament.

All jurisprudential writers agree that for a law to be a law it must be enforcible. All agree that law is an essential element in an organized society. Hart argues that there is a rule of recognition. How he can argue that in the face of the Magna Carta and the Habeas Corpus Act 1640. 16 Car 1 c10. is hard to believe. The rule of law that is paramount is the Constitution. Even the English accepted that they have a Constitution. Lord Chatham[43], in 1770, in a speech in the House of Commons recognized that there was an English Constitution, He said, “ The Constitution of this country has been openly invaded in fact; and I have heard with astonishment , that very invasion defended on principle.”

He goes on, “ No man respects the House of Commons more than I do, or would contend more strenuously than I would to preserve to them their just and legal authority. Within the bounds prescribed by the Constitution that authority is necessary for the wellbeing of the people. Beyond that line every exertion of power is arbitrary, is illegal; it threatens tyranny to the people, and destruction to the State. Power without right is the most odious and detestable object that can be offered to the human imagination.”

He goes on: “ Under pretence of declaring the law, they have made a law and united in the same persons the office of legislator and judge.” And “ Instead of the arbitrary power of a King, we must submit to the arbitrary power of a Parliament.”

In 1770, the same year Australia was claimed for the British Crown, this noble lord, was taking Lord Mansfield, a lawyer and Chief Justice of England, apart in Parliament. He said, “ We have a code in which every honest man may find it. We have Magna Charta. We have the Statute Book and the Bill of Rights.” He says that “ The people when they choose their representatives, never mean to convey to them a power of invading the rights or trampling on the liberties of those whom they represent.” And “ What security would they have for their rights , if once they admitted that a court of judicature might determine every question that came before it, not by a known positive law, but by the vague and , indeterminate arbitrary rule of what the noble lord is pleased to call the wisdom of the court.”

We all know what the Constitution is. We all know that the first principle of it is that the subject shall not be governed by the arbitrium of one man ( or woman)( or body of men less than the whole legislature), but by certain laws , to which he has virtually given his consent, which are open to him to examine, which are not beyond his ability to understand.”

Lord Chatham finished with one last sentence: “ Unlimited power is apt to corrupt the minds of those who possess it; and this I know, where law ends, tyranny begins.”

You may well ask what this has to do with Kable. The assertion was made by most counsel that the State of New South Wales had unlimited power. The majority of the Court held it did not. The High Court of Australia by independent reasoning arrived at the same conclusion that the High Court of Parliament did, in 1640. . “The King or his privy council shall have no jurisdiction over any man’s estate.” They decided that the courts would be brought into disrepute if they allowed the States to legislate their Supreme Courts into anything but a common law Court. They declared the law, but the State of New South Wales has simply ignored its advice. Progressively, since 1970, the Court of Parliament has been moving to usurp the role of Courts, and find fact by declaring law. It is undeniable fact that the Habeas Corpus Act 1640. 16 Car 1 c10. was in force in New South Wales in 1900. It is still in force in the United Kingdom. It is undeniable fact that Section 118 Constitution which says; “ Full faith and credit shall be given throughout the Commonwealth to the laws, the public acts and records and the judicial proceedings of every State;” speaks as law. It spoke as law on the 9^th July 1900, and on that day, the Habeas Corpus Act 1640. 16 Car 1 c10. and Magna Carta in force in the colonies, were picked up and became Australian law.

It is undeniable fact that Section 128 Constitution was also included, and that prohibits the repeal of these Imperial Acts, including the Constitution without a referendum. It was argued in Kable that Section 106 Constitution qualifies the subordinate legislature of New South Wales. It is undeniable fact that Section 15AA Acts Interpretation Act 1901 makes all Acts subject to the Constitution. In 1969, the Parliament of New South Wales passed the Imperial Acts Application Act 1969. It is undeniable fact that in Section 2 of that Act makes it subject to the Australian Constitution. It purports to repeal the Habeas Corpus Act 1640. 16 Car 1 c10. except for Section 6. This is dishonest. This is Parliamentary fraud. It cannot do that. It is an admitted fact proven in the Parliament of the Commonwealth that the Australian Courts Act 1828 is still law. It is proven by the evidence that the Parliament of the Commonwealth purports to repeal section 15 of that Act.

In 1970, the State of New South Wales erected Courts of Star Chamber in their common law division. They repealed the compulsory empanelment of jurors, twelve in number in all cases whatsoever, at common law, and made it optional, with a penalty for anyone who would dare to ask. It is undeniable, being evidenced by the Jury Act 1901 that there were 12 jurors in every case in 1900. They purported to give judges in chambers the same power as judges in Court. They erected a Star Chamber, where fact finding and executive acts were combined. This has resulted in great injustice and much fraud.

The Kable decision declared that they are not now, and have never been entitled to do this. The Kable decision put paid to a parliamentary dictatorship’s edict.

Likewise, the Parliament of the Commonwealth is prone to declare powers it does not possess. It erected a Court of Star Chamber in 1903, and called it the High Court of Australia. We are supposed to have a Federal Supreme Court. They gave a single judge the power proscribed by the Habeas Corpus Act 1640. 16 Car 1 c10. As Lord Chatham warned, this power is likely to be abused. It is abused every time the High Court of Australia hears a special leave to appeal application. In very few cases are appeals granted. The court of Star Chamber comprised of judges alone decides the agenda. .

Lord Chatham gave the fundamental rule of English law that rules all others, as the separation of powers. That means that the person who enforces the law is separated from the person who finds the facts. In case after case this principle was enforced. The High Court did not put it as simply as that. It did enforce the principle in Kable. They must, if they are to enjoy the respect of the people return to the conception of the rule of law expressed in Kable and apply their own decision across the whole spectrum of cases that come before them. As it is now, the application of law is capricious and arbitrary. In Kable they made a rule. That rule was already made.

The Star Chamber dislikes anyone who will refuse to accept their law. They want their own power to supplant the Constitution and all it stands for. Of the current High Court of Australia only Justice Kirby in dissent[44] has made it clear he does not approve of Star Chamber justice.

It is time the High Court of Australia became a proper appellate Court with all seven justices and made it clear, that the conception of the Rule of Law evident in the opinions expressed in Kable applies to black and white Australians; to rich and poor Australians, and to the humblest as well as the proudest in this egalitarian society. The High Court of Australia must do this by Section 32 Judiciary Act 1903 ( Cth) and put the whole matter to rest. They may do it by Section 44 Judiciary Act 1903 ( Cth). In every dubious case, where facts are disputed, and found by Star Chamber justice there should be a new trial, with legitimate High Court of Australia jurisdiction remitted to whatever Court is chosen. The Commonwealth has agreed to pay for juries in Section 43 Federal Court Act 1976. The Parliament of the Commonwealth should be ordered to pay the jury in any such case.

Kable made it clear that the reputation of Courts was important. The High Court must now take the next step and enforce its own precedent. It must restore confidence not only in itself but also in the High Courts of Parliament by making them accountable to the electors who create them. The law the Parliament of New South Wales made for Kable was “Ultra Vires”. It should not cost a million dollars to find that out. It should be mandatory and is mandatory by Section 80 Constitution that the question of whether anyone is locked up, on any pretence whatsoever, is one for a jury of 12. That is what is the essence of the Rule of Law.

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