Appeals to the UK Privy Council

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There’s a viral rumor infecting the internet that Rod Culleton has been reinstated as a senator because of alleged advice received from the UK Supreme Court in London, and that there is now an ongoing matter before the UK Privy Council.

The rumor seems to have originated on the dodgy Cairns News website 1 that also contains many other constitutional errors and OPCA myths, but has also been published by CIRNOW website. Apparently Rod Culleton was advised by the UK Supreme Court that his senate expulsion by the High Court in 2017, was “wrong at law” citing section 47 of the Commonwealth Constitution which states:

“Disputed elections – Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.” 3

It is alleged that the case manager in the UK Supreme Court referred the team to a legal maxim cited in Hilary Term [2014] UKSC 3, from William Blackstone’s Commentaries on the Laws of England, which says

“…that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere.” 4

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Rod Culleton allegedly served these papers on the Senate 

Rod Culleton’s Prayer to the UK House of Lords 7 November 2018 (PDF 6 pages) see also Rod Culleton’s letter to Queen Elizabeth II 18 January 2019 (PDF 4 pages)

Click to access culleton-prayer-to-house-of-lords.pdf

Click to access culleton-letter-to-queen-elizabeth.pdf

POINT ONE:

For a start, let’s look at the ability for the Privy Council to hear an Australian case and if there is in fact an avenue for appeal.

The High Court website states:

Appeals to the Privy Council from decisions of the High Court were effectively ended by the combined effects of the Privy Council (Limitation of Appeals) Act 1968 and the Privy Council (Appeals from the High Court) Act 1975. However, a right of appeal to the Privy Council remained from State courts, in matters governed by State law, until the passage of the Australia Acts, both State and Federal, in the 1980s.” 5

In 1986 the Australia Act was introduced in all of the States, the Federal Parliament and in UK Parliament. The Australian States and the Commonwealth confirmed their sovereign, independent status from Britain. Section 11 states:

“…no appeal to Her Majesty in Council lies or shall be brought, whether by leave or special leave of any court or of Her Majesty in Council or otherwise, and whether by virtue of any Act of the Parliament of the United Kingdom, the Royal Prerogative or otherwise, from or in respect of any decision of an Australian court.” 6

Until this time it remained theoretically possible for some appeals to be taken under Section 74 of the Constitution, which states:

“Appeal to Queen in Council – No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave. Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure.” 7

So to be clear, until 1986 appeals were theoretically possible for section 74 inter se cases. This means it has to be a case that involves a dispute between the federal Government and one or more of the States, and in order for any such appeal to happen the High Court would need to provide a certificate.

With Rod Culleton’s matter however, the High Court was sitting as the Court of Disputed Returns regarding his being disqualified from the Senate, which is not an inter se matter, so there isn’t an option for appeal to the Privy Council under section 74, simply because the Court was sitting as the Court of Disputed Returns.

So to summarize, the legislation created in 1968 and 1975, the pledge from the High Court in Kirmani v Captain Cook Cruises Pty. Ltd [No. 2] (1985) 159 CLR 461 8 that they will not write certificates, and finally the Australia Acts in 1986, closed all avenues for Privy Council appeals.

Click to access kirmani-v-captain-cook-cruises-pty.-ltd-no.-2-1985-hca-27.pdf


POINT TWO:

Secondly, section 47 of the Commonwealth Constitution clearly states in the start of the section:

“Until the Parliament otherwise provides…”

This is a phrase which also appears in many other sections of the Constitution, allowing the Parliament to legislate on the particular matter.

The section specifically empowers the Parliament to provide that questions of members’ qualifications, of vacancies in either house and of disputed elections may be determined “otherwise” than by the house in which they have arisen, which was the position inherited from the UK Parliament.

In 1902 the Parliament provided that the High Court would be the federal Court of Disputed Returns, in Part XVI of the Commonwealth Electoral Act 1902. This jurisdiction is now provided in Part XXII of the Commonwealth Electoral Act 1918. 9

It’s also important to note the Court of Disputed Returns does not have an avenue for appeal, either to the High Court or the Privy Council. Section 368 of the Electoral Act states:

“All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.” 10

So to summarize, the High Court sitting as the Court of Disputed Returns is completely lawful, regardless of the UK maxim Rod Culleton is implying reinstates him as senator. So ultimately, there is no court anywhere on planet earth for Rod Culleton to appeal to. This leaves me with a few final questions. Are in fact the writers of the aforementioned blogs off the planet?


The UK House of Lords

A similar rumour circulates around the UK House of Lords, and implies that they have some sort of jurisdiction over any situation in Australia. Rod Culleton had also recently sought their assistance in remedying his unfounded fears of a constitutional crisis.

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For those who are unaware, the UK House of Lords is the Upper House of the UK government system, and the Lower House is the UK Parliament. We have an identical system here in Australia based on the Westminster design. Here in Australia, the Upper House of the Commonwealth is the Senate, and the Lower House is the Commonwealth Parliament. Here is a good comparison of the House of Lords and the Australian Senate11

There are no appeals to the Upper House of a government of a foreign nation.

Even prior to the passing of the Australia Act 1986, in his 1977 State of the Judicature address, Sir Garfield Barwick announced that the High Court did not regard itself as bound by decisions of the House of Lords and in future would not regard itself as bound by decisions of the Privy Council in The State of the Australian Judicature (1977) 51 ALJ 480 (at 485)  12

In Viro v. R. (1978) 18 A.L.R. 257 (at 282-283)  Gibbs J., commenting that although the High Court no longer regarded itself as bound by decisions of the House of Lords it nevertheless continued to recognise “‘their peculiarly high persuasive value’ “, suggested:

“We ought now to regard a decision of the Privy Council as even more highly persuasive [than those of the House of Lords], if that is possible, by reason of the very fact that its decisions remain binding on the States.”

Click to access the-authority-of-privy-council-decisions-in-australian-courts.pdf

Then came the Australia Act 1986, which abolished all State ties, as previously State courts could bypass the High Court in appeals and go straight to the Privy Council. As Gleeson J. points out in his speech regarding the Privy Council 13 the former restrictions on legislative powers of Parliaments of States were terminated, as section 3. subsection (2) states:

“No law and no provision of any law made after the commencement of this Act by the Parliament of a State shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of the Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a State shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the State.”  14

The responsibility of the United Kingdom Government in relation to State matters was terminated by section 10, which states:

“After the commencement of this Act Her Majesty’s Government in the United Kingdom shall have no responsibility for the government of any State.” 15

Click to access the-privy-council-an-australian-perspective.pdf

Extract from Sue v Hill [1999] HCA 30 – 23 June 1999 – S179/1998 and B49/1998:

95. Almost a century has passed since the enactment of the Constitution Act in the last year of the reign of Queen Victoria. In 1922, the Lord Chancellor observed that doctrines respecting the Crown often represented the results of a constitutional struggle in past centuries, rather than statements of a legal doctrine. The state of affairs identified in Section III of these reasons is to the contrary.

It is, as Gibbs J put it, “the result of an orderly development – not … the result of a revolution”. Further, the development culminating in the enactment of the Australia Act (the operation of which commenced on 3 March 1986) has followed paths understood by constitutional scholars writing at the time of the establishment of the Commonwealth.

96. The point of immediate significance is that the circumstance that the same monarch exercises regal functions under the constitutional arrangements in the United Kingdom and Australia does not deny the proposition that the United Kingdom is a foreign power within the meaning of s 44(i) of the Constitution. Australia and the United Kingdom have their own laws as to nationality so that their citizens owe different allegiances.

The United Kingdom has a distinct legal personality and its exercises of sovereignty, for example in entering military alliances, participating in armed conflicts and acceding to treaties such as the Treaty of Rome, themselves have no legal consequences for this country.

Nor, as we have sought to demonstrate in Section III, does the United Kingdom exercise any function with respect to the governmental structures of the Commonwealth or the States. 16

Click to access sue-v-hill-1999-hca-30.pdf

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Seeing the team off to the UK. Perth Airport, 10 January 2019 (from left) Peter Alexander Gargan, Deno Budimir, Rodney Culleton and Darryl O’bryan.


The UK are obliged to their own legislation

It is also overlooked that the UK are obliged to their own legislation. Firstly, we can look at the Statute of Westminster 1931, adopted in Australia in 1942. Section 2 states:

“No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion.”

The Australia Act 1986 (UK) is also a UK Act, not an Australian Act, passed by the UK Parliament, not the Commonwealth Parliament. Section 11 of the UK version, just like the Australian version, also states:

“Termination of appeals to Her Majesty in Council: “..no appeal to Her Majesty in Council lies or shall be brought, whether by leave or special leave of any court or of Her Majesty in Council or otherwise, and whether by virtue of any Act of the Parliament of the United Kingdom, the Royal Prerogative or otherwise, from or in respect of any decision of an Australian court.”  17

The responsibility of the United Kingdom Government in relation to State matters was likewise terminated by section 10, of the UK version, which states:

“After the commencement of this Act Her Majesty’s Government in the United Kingdom shall have no responsibility for the government of any State.” 18

David Fitzgibbon likewise attempted to take a matter to the British High Court in 2004, in Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch). The case was dismissed by High Court judge Justice Gavin Lightman, 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. 19

“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.” Calling Mr Fitzgibbon’s action “quite purposeless”, the Chancery Division’s Master Bencher Bowman said: “The claim should be struck out on the basis of hopelessness … and, where appropriate, embarrassment.”

Click to access fitzgibbon-v-hm-attorney-general-2005-ewhc-114-ch.pdf


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The letter above from Buckingham Palace is Her Majesty’s latest response, to a question that has been asked many times. The following PDF is a 2013 response from the Palace answered nearly identically. Letter-FromBuckinghamPalace-MattersToBeDirectedToGG-10May2013 

Click to access letter-frombuckinghampalace-matterstobedirectedtogg-10may2013.pdf

And the response to reinstate Gough Whitlam as Prime Minister in 1975 was even more explicit.

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