OPCA adherents in Australia try to insert the U.S. Sovereign Citizen “two governments” contention into our constitutional framework in several ways. The main basis of the Australian version, is that because of changes to the Royal Style and Titles in 1973, the original “Commonwealth of Australia” had been usurped, and replaced (just like its Sovereign Citizen “United States” counterpart) with a “corporation” that is headquartered in Washington DC. Consequentially, they claim this “Queen of Australia“ has no lawful authority, and hence the laws created by parliament in the name of this “fictional Queen” are null and void.
And then, there is the change in Royal Seal, from the Royal Arms of the United Kingdom with the lion and unicorn, to the Great Seal of Australia with kangaroo and emu. To the adherent, this is a foreign seal, a trademark of a corporation.
This can be seen recently with the Great Australia Party’s “Notice of Prohibition and Disclosure” served on the secretary of the Governor-General David Hurley in Canberra, 25 January 2022, And Rodney Culleton‘s statements regarding his case in the Albany Magistrates Court:
Barrister David Fitzgibbon took the matter to the British High Court in 2004, which not only upheld the principle of the divisibility of the Crown, (the reason why there’s a se parate title for the Queen of Australia, Queen of Canada, Queen of New Zealand, Queen of the United Kingdom, etc) citing R v. Foreign Secretary ex parte Indian Association of Alberta [1982] 1 QB 892 regarding the Queen of Canada, but also dismissed the matter as the UK courts have no jurisdiction to interfere in the affairs of an independent member of the British Commonwealth, citing Buck v. Attorney General [1965] Ch 745.
The case was dismissed by High Court judge Justice Gavin Lightman in Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch), who noted that not only did he have no say over the case, but even if he did rule in favour of Mr Fitzgibbon the Australian Government, independent since 1901, could ignore him completely.
“It is for the Australian courts to apply Australian law to determine the capacity in which Her Majesty the Queen is acting, the appropriate seal and the consequences, if any, if the wrong seal is used. It is not for the UK courts to enter the field, proffering their view as the to the proper interpretation of the Constitution.”
This premise was raised in Glenevan Pty Ltd [2015] NSWSC 201 in the New South Wales Supreme Court, and dismissed as without legal merit. (at 17):
“First, in paragraph 8, it refers to a ruling in the Chancery Division of the High Court in London on Friday 25 June 2004 as having stated, “letters patent issued under the great seal of Australia by the Queen appointing the Governor-General in Australia have been issued incorrectly”. It then goes on to assert that as a result of that ruling, the Governor-General of Australia holds no executive powers whatsoever and that as a result of that ruling all current Australian laws assented to on behalf of a British monarch by the Governor-General cannot hold any valid or executive authority as the Governor-General’s appointments have not been lawfully issued. In the short time available I have not been able to locate a full copy of the decision of Senior Master Bowman, but it has been possible to locate a report of it which explains the following:
Master Bowman agreed that the Letters Patent appointing the Governor-General, which for Major-General Michael Jeffery and several of his predecessors were clearly stamped with the Great Seal of Australia, should perhaps have been stamped with the Great Seal of Britain instead. But the success of Mr Fitzgibbon ended at this particular concession. “Essentially it is a matter of procedure and not necessarily of substance – that the wrong seal was used,” Master Bowman found in the judgement. “The claim should be struck out on the basis of hopelessness … and, where appropriate, embarrassment.” Accordingly, the judgment of Master Bowman provides no support whatsoever for the contentions for which it is cited in the so-called affidavit/commercial lien.
But these cases don’t really answer the question for the adherent, who doesn’t see them as anything more than “opinion” and an attempt by the courts to hide the truth. They generally seek “the originating document” that authorized these changes, and contend there should of been a referendum, to allow the subsequent changes in interpretation to associated sections of the constitution.
The reason for these changes came from outside the Constitution, and outside Australia, and therefore not anything that could even be decided by referendum. The British Empire collapsed, and so did our obligations to it, or reliance on it for sources of law. Regardless of these outside occurrences, we just continued following our own rules, according to the same constitutional structure we designed by the referendums in each proposed state prior to Federation. As covered in previous articles, it was a gradual path to complete independence, the Balfour Agreement in 1926, and other agreements in following Imperial Conferences, and the Statute of Westminster 1931, that was adopted here in 1942 as a formal recognition of these agreements. The matter has been succinctly addressed in Sue v Hill [1999] HCA 30, where Justice Gaudron noted:
“Once it is accepted that the divisibility of the Crown is implicit in the Constitution and that the Constitution acknowledges the possibility of change in the relationship between the United Kingdom and the Commonwealth, it is impossible to treat the United Kingdom as permanently excluded from the concept of “foreign power” in s 44(i) of the Constitution. That being so, the phrase is to be construed as having its natural and ordinary meaning.”
In Volume 1 of the Final Report of the Constitutional Commission 1988 it was noted:
“The development of Australian nationhood did not require any change to the Australian Constitution. It involved, in part, the abolition of limitations on constitutional power that were imposed from outside the Constitution, such as the Colonial Laws Validity Act 1865 (Imp) and restricting what otherwise would have been the proper interpretation of the Constitution, by virtue of Australia’s status as part of the Empire. When the Empire ended and national status emerged, the external restrictions ceased, and constitutional powers could be given their full scope.”
Sir Garfield Barwick has described the result, in relation to the Framers’ purpose in drafting the Constitution as follows: “The Constitution was not devised for the immediate independence of a nation. It was conceived as the Constitution of an autonomous Dominion within the then British Empire. It s founders were not to know of the two world wars which would bring that Empire to an end. But they had national independence in mind. Quite apart from the possible disappearance of the Empire, they could confidently expect not only continuing autonomy but approaching independence. This came within 30 years. They devised a Constitution which would serve an independent nation. It has done so, and still does.”
The Royal Warrants and Proclamations that enacted the Great Seal of Australia.
On 19 October 1973, Queen Elizabeth II met with ministers at Government house, where she provided personal assent to the Royal Warrants and Proclamation that enacted the Great Seal of Australia.
This was published in the Australian Government Gazette No. 152 Canberra, Friday, 19 October 1973 along with the assent and Proclamation for the Royal Styles and Titles Act 1973.
According to the Federal Executive Council Handbook (at 159-160):
“The Governor-General’s Letters Patent issued in 1900 provided for a Great Seal for use by the Governor-General. Its purpose is to authenticate certain official documents. The Great Seal of Australia is used by the Secretariat to seal official documents in accordance with the terms of the Royal Warrant issued by The Queen to the Governor-General on 19 October 1973.
The Great Seal of Australia is affixed to commissions of appointment of Governors-General, Administrators, Judges, Officers of the Defence Force, Ambassadors and Consuls. The Great Seal is also applied to documents such as proclamations, administrative arrangements orders, orders under section 4 of the Commonwealth Inscribed Stock Act 1911, orders under section 19 of the Acts Interpretation Act 1901 and letters patent. It is circular in shape and approximately seven centimetres in diameter – documents requiring the Great Seal should be printed on parchment and prepared so as to allow sufficient space for it to be affixed.”
With many courthouses in Australia being of heritage status they often still have the original Royal Arms of the United Kingdom with the lion and unicorn displayed, often it is a sculpted arms on the wall behind the bench where the magistrate sits. This leads some adherents to insist that its presence governs the proceedings in some way, such as in Kosteska v Magistrate Manthey & Anor [2013] QCA 105:
“It was also argued that her Honour was “severely constrained” in respect of the orders she could make by the “British Coat of Arms” which appeared above the bench. Apparently, the presence of this representation (of what is actually the Royal Coat of Arms) required that the law which was to be upheld in all proceedings was the common law of England “in all of its might and majesty”. But, says Ms Kosteska, that requirement was ignored. There are occasions (thankfully very rare) when a submission is made that is so misguided, so erroneous and so lacking in any understanding of the basics of Australian law that one is faced with a truly sublime absurdity. This is such an argument. The presence of a coat of arms in a courtroom is merely a symbol of authority. It provides no power. It creates no duty.”
The reasons the Royal Arms of the United Kingdom still exists in many courthouses is for its heritage value, as explained in Section 5(3) of the State Arms, Symbols and Emblems Act 2004 (NSW):
“Replacement of Royal arms of the United Kingdom:
(1)As soon as practicable after the commencement of this Act, any Royal arms of the United Kingdom used to represent the authority of the Crown in right of the State or the State in or on any public building, or public place that is the property of the Crown in right of the State or of the State and is intended to represent the authority of the Crown in right of the State or of the State, are to be removed and replaced by the State arms.
(2)As soon as practicable (but in any event within 3 years) after the commencement of this Act, any Royal Arms of the United Kingdom on any document, seal or other object (not being a fixture or otherwise part of a building) that is the property of the Crown in right of the State or of the State, and is intended to be used to represent the authority of the Crown in right of the State or of the State, are to be removed and replaced by the State arms.
(3)Subsection (1) does not apply in relation to a building or place in respect of which the Premier, after consultation with the Heritage Council, determines that the Royal arms of the United Kingdom there displayed form an integral part of an item of the environmental heritage of the State.
(4)In any building or place to which subsection (1) does not apply because of subsection (3), the State arms must be used and displayed in a prominent position to represent the authority of the Crown in right of the State or the State, as the case may be, in addition to the Royal arms of the United Kingdom while they continue to be displayed there.”
In 2015 Michael Nibbs tried to allege that he had a case dismissed in Tasmania for invalidity because they didn’t use the correct seal, and hence the laws relied on did not exist, and prosecution could not proceed any further unless they addressed the seal argument. It spread around the internet quickly, like these myths often do, but the premise had already been disposed of in numerous cases prior to that time. See the article The Great Seal Hoax. He also raised similar arguments in Nibbs v Devonport City Council [2015] TASSC 34, to which the court responded:
“The Queen’s title in the Commonwealth of Australia was changed, firstly by the Royal Style and Titles Act 1953 (Cth), and again by the Royal Style and Titles Act 1973 (Cth). Following those changes, Her Majesty’s title was Elizabeth II, by the Grace of God Queen of Australia and her other Realms and Territories, Head of the Commonwealth. For some, that left room for argument about Her Majesty’s title in the States, what power the British monarch could exercise in and in relation to those States, and whether the relationship of Australian States to the Crown was truly independent of the relationship of the Commonwealth to the Crown: see for instance Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298 (the ‘Queen of Queensland Case’) The Australia Act 1986 (UK) repealed the Imperial Colonial Laws Validity Act 1865. Thereafter there were no residual powers or responsibilities of the United Kingdom in relation to Australian States. Generally, the provisions of the Australia Act (UK) left a discrete Australian monarchy.”
The fact of the matter is that proof of Assent, of Proclamation, or of the Seals, are not required to be provided to a defendant, under Judicial Notice. Section 143 of the Evidence Act 1995 (Cth) provides that proof is not required about Assent or Proclamation, and Section 150 regarding Seals and signatures, Section 153 Gazettes and other official documents, and Section 5 extends the operation of these provisions to proceedings in all Australian courts.
In Fekete v Child Support Registrar [2016] FamCAFC 14: the applicant sought production of:
“A Certified Copy of the Referendum results that granted the Parliament of the Commonwealth of Australia the authority to use the “Great seal of Australia” as opposed to the original seal of the Commonwealth of Australia, as was used on the Commonwealth of Australia Constitution Act 1900 (UK).”
The Court held that:
“As far as paragraphs 2 and 3 of the 25 November 2015 Notice to Produce are concerned, there is no suggestion that there was a referendum that granted the Commonwealth of Australia the authority to use the Great Seal of Australia..”
Likewise in Conroy v Deputy Commissioner of Taxation [2005] QSC 206:
“The argument is that the Governor- General was appointed by commission by the Queen as Queen of Australia and that there is no-one answering that description having any legal role in the constitutional or legal affairs of this country. The argument is one which has been raised a number of times and it can, I think, be seen set out in somewhat more extensive form in the judgment of the Chief Justice of South Australia in Money Tree Management Systems Pty Ltd v Deputy Commissioner of Taxation [2000] SASC 54. The argument, wherever it has been raised, has been rejected. I, with respect, adopt what was said by the Chief Justice of South Australia in that case. The position is, in my view, clear that the Queen acts in her capacity as Queen of Australia using that style or title in exercising the relevant powers and I reject this argument. I also refer to the judgment of Hayne J in Joosse and Anor v Australian Securities and Investment Commission (1998) 159 ALR 260. I also reject the argument that the great seal of Australia is not the correct seal for use by the Queen. This argument is based upon a similar premise to the first argument and, in my view, also has to be rejected.
There are numerous cases in which the “Seal argument” has been raised, and rejected. You can locate these cases on this website under the Tag “The Great Seal of Australia“.
History of the Coat of Arms to the Great Seal
On 21 January 1904, the first Coat of Arms of the Commonwealth came into use, granted by King Edward VII:
A postcard commemorating the US Navy Great White Fleet visiting in 1908:
Correspondence with the United Kingdom regarding the Coat of Arms of the Commonwealth, with Royal Warrant (1907):
Evening News, Wednesday 17 June 1908, Page 8:
The second Coat of Arms of the Commonwealth arrived here in 1912, with an improved design representative of the six States. The Daily Telegraph, Friday 15 November 1912, Page 11:
The Royal Warrant by King George V, 19 September 1912:
As erected on the Old Parliament House in 1927:
The Maitland Daily Mercury, Saturday 9 November 1912, Page 4:
Correspondence in 1915 regarding the use of the Coat of Arms of the Commonwealth on stationary instead of the Royal Arms of the United Kingdom:
The Coat of Arms of the Commonwealth would be used on all government publications. Observer, Saturday 27 June 1925, Page 41:
Since the establishment of the Commonwealth of Australia, there have been three seals. Formal provision for an Australian seal was made in Letters Patent from Queen Victoria dated 29 October 1900 constituting the office of Governor General and Commander in Chief of the Commonwealth of Australia and providing that:
“There shall be a Great Seal of and for Our said Commonwealth which Our said Governor-General shall keep and use for sealing all things whatsoever that shall pass the said Great Seal….”
On 21 January 1904, the first Great Seal of the Commonwealth came into use; this had been prepared in 1903, and had been granted by King Edward VII. King Edward VII died on May 6 1910, but by a warrant of King George V, dated 20 days later, the use of King Edward’s seal was authorised till a new one should be provided. Many were already critical of the choice of seal in regards to its relevance to Australia, suggesting:
“…the regretful part is that he didn’t break away from a tradition which has no Australian meaning. Far better than a woman on a charger would be one on an elevated seat, receiving the homage of six figures representative of the States, or of three or four figures representative of our primary industries—wool, mining, farming, etc.”
Bendigo Advertiser, Wednesday 11 September 1901, Page 5:
The second great seal of the Commonwealth arrived here in 1912, and bears upon it a design similar to that of its predecessor, with a few exceptions.
This article in the Sydney Morning Herald, Saturday 1 October 1932, page 9 provides an insight into the history of the seal:
On 16 February 1954, on the advice of Menzies, the Queen issued a Royal Warrant whereby she authorised the Great Seal of the Commonwealth of Australia to be used as the Royal Great Seal of Australia whenever she signed a document that was counter-signed by one of her Australian ministers of state. The Royal Warrant was published in the Government Gazette, (No 10A, 16 February 1954).
The Newcastle Morning Herald and Miners’ Advocate reported the approval on Wednesday 17 Feb 1954, Page 1. It was noted in The Mercury, Wednesday 17 February 1954, Page 20 that Elizabeth II broke precedent by defacing the prior seal, something that was formerly done in the Privy Council:
The third and present seal of the Commonwealth of Australia was enacted by Royal Warrant and Proclamation by the Queen on 19 October 1973, depicting the Coat of Arms of the Commonwealth of Australia which was granted Royal Warrant by King George V in 1912.
You must log in to post a comment.