James Bowes is an OPCA adherent in Queensland, a truck driver, who has a Facebook page 1 and a YouTube channel “barefootbowie” 2. He was quite involved years ago with following cannon law and other aspects initially raised by Frank O’Collins, 3 with the atypical strawman and common law motifs that identify the ideology, as his 2013 videos and his current profile photos clearly show.
His main contentions these days seems to be based on the Entrenched Provisions of the 1867 Constitution, the Oath of Allegiance, the Bill of Rights 1688, Act of Settlement 1700 and the Imperial Acts Application Act 1984.
A consistent problem I have found in interactions with James Bowes over the years, is that he completely ignores any evidence that is inconsistent with his beliefs, refuses to address the precedents cited, and then invariably uses the excuse that he has to drive. He then repeats the same contentions again some time later presenting them as fact, without taking into consideration that each have already been authoritatively addressed before. Rinse and repeat, rinse and repeat. As I said in our last interaction…
“I have zero fucks to give for her style and title…” is your first absence of logic. This has nothing to do with you or your beliefs, but how the law sees it. And I think that is your main problem. I’ve seen all these points of yours many times before, and I’ve many times provided the High Court ratios to the contrary for each of these points, which you simply ignore and then take off saying you have to drive, over and over and over and over. And this is a fundamental flaw in your ability not only to conduct logical debate, but to properly understand the position of the law on these matters. Ignorance of the opposing position does not help you at all, but competently understanding it from a place of complete neutrality. I do understand your position from that perspective, there is little point trying to explain it to me again, I can competently write a whole chapter on how you see this. Can you say the same? Can you put “belief” to one side, and write a chapter on how I have responded to these points? Without a cognitive ability to function this way, it is like a scientist trying to explain, with verified evidence, to a flat earther, of why the planet is round. If it is all about their personal beliefs, they will inevitably dismiss any evidence to the contrary, and that is what you are doing. So, if you are cognitively competent, with an ability to see outside of your beliefs, maybe you tell me how I have responded to each of your assertions here before, and cite the High Court references and ratios for each, that I’ve also given you before.
Of course, James Bowes used the very predictable and worn out excuse once more that he doesn’t have time to give me the responses that I have given him consistently for 5 years, because he has to drive. It never stops him from spending hours repeating the same contentions over and over again though, he just has no time to study or even look at the opposing position to his beliefs. For example, in late 2019, in the interests of logical interaction, I had to write a list of 20 points that he had intentionally disregarded, and for the next 6 months he refused to even attempt to respond to these points with any evidence, but always found time for spruiking his beliefs.
1. Have you actually read Commonwealth v Queensland  HCA 43; (1975) 134 CLR 298 (the ‘Queen of Queensland Case’) and what was the conclusions reached?
2. Do you actually read my comments or just rant like a truck-driving version of Steven Spiers?
3. In all of Anne Twooney’s writings that touches on this subject, does she actually give a definitive unambiguous response and her final view on the matter at law, or merely gives 2 possible scenarios in a hypothetical, and doesn’t commit to either?
4. In “Keeping the Queen in Queensland”, does Anne Twooney actually conclude that the Queen is effectively entrenched in the 1867 constitution, or raises the point that (a) it may be invalidly made or ineffectively entrenched, (b) there may be a defect in the grant of royal assent to the Constitution Act Amendment Act 1977, (c) may be void for repugnancy post 1986, (d) that s 6 of the Australia Acts 1986 may be the only source of effective entrenchment, not the Constitution Act Amendment Act 1977, and (e) ultimately, shouldn’t have been entrenched at all?
5. What was the original position of Michael Stokes in this matter, and why did he later retracted this position, and also what was the contrary view of Professor Winterton?
6. Is Cameron v Peter D Beattie in his capacity as Premier & Ors  QSC 115 a decision that is binding on the lower courts in Queensland, and would the Supreme Court see it as persuasive in the matter?
7. Are the decisions of the High Court binding on all courts in Australia, including Pochi v Minister for Immigration & Ethnic Affairs (Macphee) (1982) 151 CLR 101, Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, and Sue v Hill  HCA 30?
8. The High Court has determined in numerous cases post 1986 that the allegiance owed by “Australian citizens” is to the Queen of Australia, not the Queen of the UK. If as you say, that the people of Queensland are actually “Australian citizens” united in a federation, then according to the High Court, whom do they owe allegiance?
9. Seeing as though it involved a Queensland Senator, have you actually read Sue v Hill  HCA 30 and what was the conclusions reached?
10. If all the people in Queensland owe allegiance to a foreign power, being the Queen of the UK, then would it not follow that NONE are eligible to sit in the Commonwealth Parliament at all under section 44, as determined in Sue v Hill  HCA 30? If so, why is Queensland still represented in the Senate at all?
11. Does a lower court have any obligation to prove to you that an Act has been passed in the correct manner, and has assent etc, when taking into account section 143 of the Evidence Act 1995 (Cth) and section 123 of the Evidence Act 1977 (Qld)?
12. Does a lower court have any obligation to prove to you that the oaths were taken in the correct manner, when taking into account that the formal taking of the oath has significance in a ceremonial, but not a legal, sense, as concluded Moller v Board of Examiners for Legal Practitioners  VSCA 116;  3 VR 36 (from 17) and Re Howard  1 N.S.W.L.R., 641 (at 646), and taking into account the presumption of regularity and defacto officer doctrines as relied on in Nibbs v Devonport City Council  TASSC 34?
13. Does a lower court or prosecution have any obligation to answer questions that do not relate directly to the cause of action or the elements of the offence, as found in Fekete v Child Support Registrar  FamCAFC 14: “The well-known proposition that the burden of proof falls on the person asserting the claim does not help the Applicant because that relates to the burden of proving the elements of the offence or the cause of action and not the law itself.”
14. In Lade and Company Pty Ltd v Finlay & Anor; Lade v Franks & Anor  QSC 382, did the Supreme Court conclude that the parliament is quite at liberty to alter the entrenched provisions if it so wishes, citing McCawley v R  AC 691 (PC), so the court is not concerned with the question of whether the constitutional requirements have been complied with?
15. Did you not post photo of a letter on my page several years ago, claiming it was from the United Nations, and that was the reason Pieta Morgan was released, and does that letter not bear the seal of the “King of Kings” Sino Soegihartonotonegoro himself, who is head of “United Nations Swissindo” who has since been exposed as a con artist and fraudster, and he has no authority to demand anything, and has absolutely no affiliation to the United Nations?
16. Did you not state last week that “His Royal Highness” Ambassador Bishop Chris Kember is “not only the Australian Ambassador to the International Human Rights Commission and the European Union, The World Chairman of the United Nations International Commercial Guard”, when it is obvious that his “United Nations & International Commercial Group” (UN&ICG) is actually a private organization and has absolutely no affiliation to the real “United Nations”, and in reality Australia’s Permanent Representative and Ambassador to the United Nations is Mr Mitch Fifield, Australian Ambassador to the European Union, NATO, Belgium and Luxembourg is Justin Brown, and Australia’s Human Rights Commissioner is Edward Santow?
17. Did the Roman Catholic Relief Act, passed by the UK Parliament in 1829, overturn the requirement that all Ministers of State must be Protestant, and subsequent reforms continue to whittle away at the judicial interpretations of previous enactments to the extent of any consistencies, until the prohibitions on Papal persons applied only to the monarch themselves and their heirs and successors, not anyone else, due to the monarch’s duel position as Supreme Governor of the Church of England?
18. Did the Church Act of 1836 establish legal equality for Protestants and, Catholics in Australia, and was this notion later enshrined in section 116 of the constitution, which prohibits imposing any religious observance, or proscribing any religious test as a qualification for any office under the Commonwealth?
19. Was the section in the Bill of Rights 1688 relating to “Papists debarred the Crown” amended to the extent of any consistencies by deleting “or by any King or Queene marrying a Papist”; and “or shall marry a Papist”; and “or marrying”, by section 10 of the Royal Succession Act 2015, and does it relate only to the monarch themselves and their heirs and successors?
20. Did certain parts of the Oath taken by Elizabeth II at her coronation apply only to her duel position of Supreme Governor of the Church of England, as held in Gargan v Director of Public Prosecutions and anor  NSWSC 10: “Whilst this oath binds Her Majesty, it does not affect the law of New South Wales. Furthermore the oath involves Her Majesty undertaking the moral obligation to govern the people of Australia according to the laws and customs, not of England or the United Kingdom, but according to those of Australia.” ?
Quite ironically, while refusing to address these preliminary issues with his contentions, he somehow believes it is possible to “win” a debate by childishly holding his hands over both of his ears and ranting “LALA LALA LALA LA”… as the following posts demonstrate: 4
On a more positive note, his contentions are quite involved, interwoven and overlapping, with conclusions based on a false premise which was based in abstract on another false premise, which was initially based on an original false premise, exactly the type of arguments that I enjoy dissecting into their individual components, reverse engineering them, and establishing their invalidity in isolation from each other and the flawed conclusions that have resulted. I hope you enjoy reading this comment as much as I have enjoyed compiling it.
His contentions can probably be summed up best in his favourite phrase:
“Piss off, I’m a protestant…”
I’ll address this collection of contentions in the following segments:
- (1) The binding effect of Precedent
- (2) The Act of Settlement 1700
- (3) The Coronation Oath
- (4) The Oath of Allegiance
- (5) The Queen of Queensland
- (6) Section 53 of the Constitution Act 1867
- (7) Anne Twomey extracts
- (8) Does a court have to prove Assent?
- (9) The burden of proof
- (10) UN Swissindo and UN & International Commercial Group
- 1 https://www.facebook.com/james.bowes.90
- 2 https://www.youtube.com/channel/UC4r0wq9Koucpwu7fnO_dPow
- 3 https://freemandelusion.com/2018/07/22/early-opca-influence-in-australia/
- 4 https://www.facebook.com/james.bowes.90/posts/5112198038805888 https://www.facebook.com/james.bowes.90/posts/5112130658812626
(1) The binding effect of Precedent
As the majority of decisions I have cited over the years to James Bowes have been promptly disregarded, I think it’s important to note initially, regarding the binding nature of precedent from the higher courts in Australia. Section 76 grants the High Court “original jurisdiction” in all matters relating to its interpretation, and it is the final court of appeal in the hierarchy of courts in Australia. Even when it is “carefully considered dicta” the decisions of the High Court are binding on all the courts in Australia. See Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, at 134, 1 Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 17. 2 As stated by Justice Michael Kirby in Precedent Law, Practice & Trends in Australia: 3
“Where a ratio decidendi exists in the reasoning of one of its decisions, it is not permissible for any other Australian court, whether in an appeal or at trial, to ignore, doubt or qualify the rule so stated. The rule may be analysed and, where thought appropriate, elaborations suggested or distinctions upheld. But the legal duty of obedience requires that it must be followed and applied.”
Similarly, the ratio decidendi in the decisions of the Supreme Courts of the States are binding on all of the lower courts in that State, and often have a persuasive effect on both the higher and lower courts in other States on the same ratio. When a particular contention is raised in a trial, that contention will inevitably be answered from the common law from past decisions wherever it is deemed appropriate.
- 1 https://jade.io/article/9357
- 2 https://jade.io/article/68071
- 3 https://freemandelusion.files.wordpress.com/2020/07/2150-precedent_law.pdf
(2) The Act of Settlement 1700
James Bowes claims that the government has “made communion with the church of Rome” (contrary to the long repealed provisions of the Act of Settlement 1700) 1 through the misunderstood SEC registration, 2 the fact some members of the Australian judiciary from the St. Thomas More Society 3 celebrate ‘Red Mass‘ 4 in Rome, and otherwise objects to anyone in government being involved with the Catholic Church.
The Act of Settlement 1700 5 was passed to settle the succession to the English and Irish crowns to Protestants only… “…all and every person and persons who shall or may take or inherit the said crown.”
The next Protestant in line to the throne was the Electress Sophia of Hanover, a granddaughter of James VI of Scotland and I of England, and it was proclaimed that after her the crowns would descend only to her non-Roman Catholic heirs. Under the Act of Settlement: “…whosoever shall hereafter come to the possession of this crown…” was forbidden from becoming a Roman Catholic, or marrying one, or else they were disqualified from inheriting the throne. The act also placed limits on both the power of the monarch with respect to the Parliament of England, and decreed that no foreigner or Roman Catholic could: “…hold any office or place of trust, either civil or military, or to have any grant of lands, tenements or hereditaments from the Crown…”
As well as being part of the law of the United Kingdom, the Act of Settlement was received into the laws of all the countries and territories over which the British monarch reigned. It remains, after more than two centuries, as one of the main constitutional laws governing the succession, not only to the throne of the United Kingdom, but to those of the 16 Commonwealth realms and the relevant jurisdictions within those realms. It cannot be altered in any realm except by that realm’s own parliament and, by convention, only with the consent of all the other realms, as it touches on the succession to the shared Crown. The second paragraph of the Statute of Westminster Adoption Act 1942 states: 6
“…in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.”
Today, the provisions in the Act of Settlement that relate to the church of Rome applies only to the monarch themselves and their heirs and successors. This is because the Act primarily deals with the monarch’s position as Supreme Governor of the Church of England, where the title given to King Henry VIII, “Defender of the Faith” is fundamental. As Supreme Governor of the Church of England, the monarch is still forbidden from “holding communion with the church of Rome.” according to these 1700 provisions. Much of the Oath taken by Elizabeth II at her Coronation likewise applies to her position of Supreme Governor of the Church of England, which doesn’t apply in Australia because neither the Queen, the Governor General, or any state Governor have any religious role in Australia. There has never been an established church in Australia, either before or after Federation.
The Roman Catholic Relief Act 7 was passed by the UK Parliament in 1829, which overturned the requirement that all Ministers of State must be Protestant “…and all their Officers and Ministers ought to serve them respectively according to the same.” Here in Australia, the Roman Catholic Relief Act 1830 8 was adopted into legislature in all the colonies, including the following in Queensland:
“Whereas by an Act of Parliament passed in the 10th year of the reign of His present Majesty intituted ‘An Act for the relief of His Majesty’s Roman Catholic Subjects’ all His Majesty’s subjects professing the Roman Catholic religion are relieved from all civil and military disabilities with certain specified exceptions and it is expedient to remove any doubt which may exist as to the application of the said Act to this colony.
1 Adopting the British Act of Parliament for the relief of Roman Catholics
That the said Act of Parliament extends to and is in force and the same is hereby declared to extend to and be in full force in the State in the same manner in all respects as if the said Act had contained a positive clause to such effect.”
This enactment was included in the subsequent enactments in Queensland, as it primarily affected the Oaths Act 1867: 9
“In every case where but for the passing of this Act it would be necessary for any person to take the oaths commonly called the oaths of allegiance supremacy and abjuration or any of them or the oath prescribed by the Act of Parliament commonly called the Roman Catholic Relief Act 1830 or to make the declaration prescribed by the Act of Parliament passed in the ninth year of the reign of King George IV chapter 17 and whensoever it shall be necessary for any person to take the oath of allegiance it shall be sufficient for such person to take in lieu of the said several oaths and declaration the following oath of allegiance—‘I A.B. do sincerely promise and swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, as lawful Sovereign of the United Kingdom, Australia, and her other Realms and Territories, and to Her Heirs and Successors, according to law.’; anything in the said Acts of Parliament or in any other statute Act or law notwithstanding.
Soon after, the Church of England also lost its legal privileges in the Colony of New South Wales by the Church Act of 1836, 10 which established legal equality for Anglicans, Catholics and Presbyterians and was later extended to Methodists. The separation of church and state in this regard was later enshrined in section 116 11 of the Commonwealth Constitution:
“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”
Some of the recent theories surrounding the Act of Settlement 1700 sort of imply that the Commonwealth should “impose religious observance” and that there should be a “religious test” for public office or trust, which is quite obviously unconstitutional.
Although it must be noted that section 116 only applies to the Commonwealth, not the States. The first draft, approved by the Melbourne Convention of 1891, would have prohibited the states from passing laws prohibiting the free exercise of religion, but the amendment was defeated. It was feared the provision would impede the states’ legislative powers, so section 116 passed and did not mention the states. In Kruger v Commonwealth  HCA 27, 190 CLR 1, 146 ALR 126 12 the court found that section 116:
“…does no more than effect a restriction or limitation on the legislative power of the Commonwealth. It is not, in form, a constitutional guarantee of the rights of individuals… It makes no sense to speak of a constitutional right to religious freedom in a context in which the Constitution clearly postulates that the States may enact laws in derogation of that right.”
The British Nationality Act 1981 13 made naturalised citizens the equal of those native born, overturning the requirement that only those native born to England can sit as a Member of either House of Parliament. “anyone else born out of the kingdoms of England, Scotland or Ireland or the dominions thereunto belonging.” This requirement is echoed in section 44 14 of the Commonwealth Constitution in relation to foreign citizenship.
Following the Royal Style and Titles Act 1953, 15 further amendments in the Royal Style and Titles Act 1973 16 removed “Defender of the Faith” from her Australian Title, in formal recognition of the differences between the monarchs role in the UK, compared to her role in Australia.
After the Perth Agreement in 2011, legislation passed throughout the Commonwealth realms amended the Act of Settlement 1700. The purpose of the Succession to the Crown Act 2015, 17 was to:
“…change the law relating to the effect of gender and marriage on royal succession, consistently with changes made to that law in the United Kingdom, so that the Sovereign of Australia is the same person as the Sovereign of the United Kingdom.”
When legislating for the Perth Agreement, the Australian governments took the approach of the states requesting, and referring power to, the federal government to enact the legislation on behalf of the states under section 51(xxxviii) 18 of the constitution. The Commonwealth Heads of States agreed to changes to various points like:
- (1) male descendants take precedence over females in the line of succession,
- (2) the disqualification of those married to Roman Catholics;
- (3) the limitations on the number of individuals in line to the throne requiring permission from the sovereign to marry.
However, the ban on Catholics and other non-Protestants becoming sovereign, and the requirement for the sovereign to be in communion with the Church of England remained.
Anne Twomey explores the constitutional perspective in “Changing the Rules of Succession to the Throne”. 19
- 1 https://freemandelusion.wordpress.com/2019/06/26/act-of-settlement-1700/
- 2 https://freemandelusion.wordpress.com/2018/06/28/australia-is-not-a-foreign-corporation-registered-with-the-u-s-s-e-c/
- 3 http://www.stms.org.au/
- 4 https://www.youtube.com/watch?v=sLfHpftca8c&feature=youtu.be
- 5 http://classic.austlii.edu.au/au/legis/act/consol_act/aos170012a13w3c2233/
- 6 http://www.austlii.edu.au/au/legis/cth/consol_act/sowaa1942379/schthe.html
- 7 https://www.legislation.gov.uk/ukpga/Geo4/10/7/contents
- 8 https://jade.io/article/529606
- 9 https://jade.io/article/353373
- 10 https://jade.io/article/435324
- 11 https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=6ED2CAE61E7742A1B2C42F95D4C05252&_z=z#chapter-05_116
- 12 https://jade.io/article/67993
- 13 https://www.legislation.gov.uk/ukpga/1981/61
- 14 https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=074367F0015D42C2B005207F5642376A&_z=z#chapter-01_part-04_44
- 15 https://freemandelusion.files.wordpress.com/2019/06/rstact1953.pdf
- 16 https://freemandelusion.files.wordpress.com/2019/06/c2004a00044.pdf
- 17 https://www.legislation.gov.au/Details/C2015A00023
- 18 https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=AFF6CA564BC3465AA325E73053DED4AA&_z=z#chapter-01_part-05_51
- 19 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1943287
(3) The Coronation Oath
James Bowes believes that the oaths of a judge to the monarch makes them obligated to uphold the coronation oath in relation to her position as Supreme Governor of the Church of England, hence his insistence on the Bill of Rights 1688, Act of Settlement 1700 and the Imperial Acts Application Act 1984.
In Gargan v Director of Public Prosecutions and anor  NSWSC 10 1 it was held that:
“Whilst this oath binds Her Majesty, it does not affect the law of New South Wales. Furthermore the oath involves Her Majesty undertaking the moral obligation to govern the people of Australia according to the laws and customs, not of England or the United Kingdom, but according to those of Australia.”
This decision was upheld in the Federal Court in Official Trustee in Bankruptcy v Gargan (No 2)  FCA 398 2 Gargan:
“…argued that the Coronation Oath Act 1688, 1 Wm & M, c 6, required the sovereign to uphold the gospels. O’Keefe J rejected this argument on the basis that the oath administered to the present Queen was not the oath prescribed by that Act.”
James Bowes believes that this case is obsolete and does not apply to Queensland jurisprudence, yet as you can note in the “cases citing this decision” section, the ratios in Gargan v Director of Public Prosecutions and anor  NSWSC 10 were applied just this year in the Federal Court in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 416, and also by the Queensland District Court in Warwick Credit Union Ltd v McCarthy  QDC 92.
In the following case there is a lengthy analysis of the coronation oath and how it applies to judges, as the contention was that it impresses upon the Attorneys-General a duty to ensure that none suffer injustice from abuses of judicial power, which was rejected in Little v State of Victoria  VSCA 113 3 which was later upheld by the High Court in Little v State of Victoria  HCATrans 226 4 so the ratio is binding on all the courts in Australia.
From the High Court in An application by Stanbridge  HCATrans 175: 5
MR STANBRIDGE: Yes, but you see, your Honour, no judge can make any law which does not line up with the laws of God, because of the requirements of the Oaths Act and the Coronation Oath which requires all judges to hold allegiance to the Queen, who in her turn has sworn in the Coronation Oath to uphold the laws of God, maintain the true profession of the Gospel, and uphold the laws of the land ‑ ‑ ‑
HIS HONOUR: No judge ‑ ‑ ‑
MR STANBRIDGE: ‑ ‑ ‑ which includes the Magna Carta.
HIS HONOUR: No judge is more conscious of the Oath of Allegiance to the Queen than I, who have taken twelve of them, nor of the Queen’s Coronation Oath but, if you remember, the Coronation Oath goes on to say: …according to the laws and usages respectively in force. And that is what Her Majesty promised. That is what her judges perform. They conform to the law, according to the law as it is made in the particular dominions. Otherwise, it would be very difficult. I was in India last week, and the God in India who is worshipped is worshipped in places that are not churches. God in a number of the Queen’s dominions at that time was called something different, so that it is very difficult to draw anything from the Coronation Oath, because all the Queen promised to do was to uphold the law as it was made in the different dominions.
MR STANBRIDGE: Though it is quite clear that the Coronation Oath refers to the God of the Holy Bible, because the whole of the Coronation Ceremony is a very Christian ceremony, and the Queen is actually given a Bible with the Moderator of the General Assembly of the Church of Scotland – brings the Queen the Bible saying:
“Our Gracious Queen, to keep your Majesty ever mindful of the law and the Gospel of God as the rule for the whole life and government of Christian Princes, we present you with this book, the most valuable thing that this world affords. Here is wisdom. This is the royal law. These are the lively oracles of God.”
And then a bit later on, an orb with a cross is given to the Queen by the Archbishop, who declares:
“Receive this orb, set under the cross, and remember the whole world is subject to the power and empire of Christ, our redeemer.”
HIS HONOUR: Yes, I remember all of these things very vividly, Mr Stanbridge, and I take them very seriously myself, but we live in a secular country, bound by a Constitution which contains section 116 to which you have referred, and the duty of courts is to enforce the law; it is not to enforce religion or religious principle, unless that happens to be enshrined in the particular law.”
As already covered in relation to the Oaths Act 1867 6 which was affected by the Roman Catholic Relief Act 1830 7 there is no obligation for a judge to either refrain personally from a Catholic faith, nor to “uphold the gospels” in the way assumed by James Bowes and others in the cases above.
- 1 https://jade.io/article/133791
- 2 https://jade.io/article/92812
- 3 https://jade.io/article/70036
- 4 https://jade.io/article/232001
- 5 https://jade.io/article/230248
- 6 https://jade.io/article/353373
- 7 https://jade.io/article/529606
(4) The Oaths of Allegiance
Regarding the oaths of a judge, firstly it is important to note that the formal taking of the oath has significance in a ceremonial, but not a legal sense. See Moller v Board of Examiners for Legal Practitioners  VSCA 116;  3 VR 36 (from 17): 1
“As Street, C.J. Said in Re Howard  1 N.S.W.L.R., 641 at 646: 2
“The taking of the oath of allegiance in association with admission to practice is part of the formal ceremony attendant thereon, but the law is clear that the bond of allegiance exists at common law, independently of whether the oath be taken or not. The formal taking of the oath has significance in a ceremonial, but not a legal, sense. It is customary, on admission ceremonies, to remind those newly admitted that the significance of the oath is that the Sovereign represents the fountainhead of law and justice – the oath is a pledge of service to the symbol of law and justice .”
Nibbs v Devonport City Council  TASSC 34 3 is also an important case to consider, as it was held that a Magistrate had authority to hear a case even if not correctly sworn into office, relying on the presumption of regularity and de facto officer doctrine.
“The principle commonly known as the ‘presumption of regularity’ is that where the exercise of a power or the performance of an act by a public officer or public authority is proved, it will be presumed that the preconditions to the lawful exercise of that power or performance of that act have been met.”
McLean Bros & Rigg Ltd v Grice  HCA 1; (1906) 4 CLR 835 at 560. 4 Relevant to this case, in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, McHugh JA at 164 said: 5
“Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office.”
(M’Gahey v Alston  EngR 150; (1836) 2 M & W 206 at 211; 6  EngR 150; 7 150 ER 731 at 733; 8 R v Brewer  HCA 33; 9 (1942) 66 CLR 535 at 548; 10 Hardess v Beaumont  VicLawRp 46; 11  VLR 315 at 318-319.) 12
The second answer is that in any event, the doctrine known as the ‘de facto officer doctrine’ would undoubtedly apply. G J Coles v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 per McHugh JA at 515: 13
“The acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office. It matters not that his appointment to the office was defective or has expired or in some cases even that he is a usurper.”
As his Honour demonstrated in his analysis in that case, and as demonstrated in the discussion by Crawford J (as he then was) in Official Trustee v Byrne  Tas SR 1 at 13-15, 14 the principle applies to judicial officers.
The three conditions necessary for the operation of the doctrine apply in this case. The office of a magistrate is one which existed in law. The acts of the magistrate in hearing and determining the application for summary judgment were within the scope and authority of the office of a magistrate. Lastly, the doctrine should properly be applied in the public interest: see generally Jamieson v McKenna  WASCA 325 at - .” 15
Even regarding the oaths contained in section 42 of the Commonwealth Constitution, in September 1901 Alfred Deakin, in his capacity as Attorney-General for the Commonwealth, advised that, in his opinion, the direction in s 42 of the federal Constitution that a member of the federal Parliament “shall before taking his seat make and subscribe” the oath of allegiance was “directory, and not absolute” in the sense that “neglect of the requirement does not invalidate what is done afterwards”. (See Research Paper: Oaths and affirmations made by the executive and members of federal parliament since 1901. 16 Deirdre McKeown. (see p. 14 and footnote 51) and pages 153-6 of “Oaths and Affirmations of Public Office.” 17 Enid Campbell, Emeritus Professor of Law, Monash University.)
- 1 https://jade.io/article/70039
- 2 https://jade.io/citation/17312560
- 3 https://jade.io/article/404233
- 4 http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1906/1.html
- 5 http://www8.austlii.edu.au/cgi-bin/LawCite?cit=%281987%29%209%20NSWLR%20154
- 6 http://www.worldlii.org/int/cases/EngR/1836/150.html
- 7 http://www.worldlii.org/int/cases/EngR/1836/150.html
- 8 http://www8.austlii.edu.au/cgi-bin/LawCite?cit=150%20ER%20731
- 9 http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1942/33.html
- 10 http://www8.austlii.edu.au/cgi-bin/LawCite?cit=%281942%29%2066%20CLR%20535
- 11 http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VicLawRp/1953/46.html
- 12 http://www8.austlii.edu.au/cgi-bin/LawCite?cit=%5b1953%5d%20VLR%20315
- 13 http://www8.austlii.edu.au/cgi-bin/LawCite?cit=%281986%29%207%20NSWLR%20503
- 14 http://www8.austlii.edu.au/cgi-bin/LawCite?cit=%5b1989%5d%20Tas%20SR%201
- 15 http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/wa/WASCA/2002/325.html
- 16 https://freemandelusion.files.wordpress.com/2020/08/oaths.pdf
- 17 https://freemandelusion.files.wordpress.com/2020/08/e.-campbell.pdf
(3) The Queen of Queensland
In support of his contentions regarding the Crown of Queensland, James Bowes often posted an article falsely attributing it as the work of Anne Twomey, called “Maintaining fairness to accused in criminal matters: the separation of powers” 1 which is actually a submission by one Craig Myatt, who doesn’t support the notion that references to the sovereign are references to the body politic of Queensland, but to the Queen in a personal sense. Craig Myatt actually seeks to argue against Anne Twooney’s position in ‘The Unrecognised Reserve Powers’ (2012): 2
“This “popular sovereignty” is what is referred to by constitutional scholar Ms Anne Twomey, as a “new crown”, or “…a new Crown is created when the Queen is directly advised by Ministers responsible to a legislature of a particular polity…”A “polity” is a state or organised community, in this case the “polity” is the community organised into a state: Queensland. She indicated:
“A new Crown is established… The polity itself does not need to have attained formal independence or to be internationally recognised as sovereign…”.
Thus the community of Queensland is the new “sovereign” of Queensland, a concept recognised by the Preamble of the Constitution of Queensland:
“The people of Queensland…adopt the principle of the sovereignty of the people…” (Preamble, Constitution of Queensland, 2001)
He admits that:
“…while the Queen, as a “constitutional sovereign”, maintains a ceremonial role as head of State, in practice, the Head of State who holds the actual power under the Constitution is not the Queen, but the Governor of Queensland, (or Australia). This was formalised in the Australia Act 1986 (Cth), which indicates:
7 Powers and functions of Her Majesty and Governors in respect of States
(1) Her Majesty’s representative in each State shall be the Governor.
(2) Subject to subsections (3) and (4) below, all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State.
He also mentions an email from Anne Twooney to himself, which states that references to the Queen or Crown is not generally a reference to the Queen in a personal capacity:
“The terms ‘Queen’ and ‘Crown’ mean a number of different things in legislation. Sometimes they mean the Queen herself, but more commonly they mean the relevant polity or the executive government. The reference to the Queen as a party to criminal litigation has nothing to do with the Queen herself. It is just a term that represents the State as a whole.”
He also extrapolates:
“What might be a better way to frame Ms Twomey’s statement, is that “The Queen” or “Crown” is a “proxy” for the people’s “popular sovereignty”. Therefore a literal reference to “The Queen” as the criminal litigant, is in spirit a reference to the “polity” which is the people of Queensland, or the sovereign which by fact of their power to elect representatives in Parliament or change parts of the Constitution, holds the sovereignty.”
That concept of popular sovereignty which is essentially that “The Queen” might be a “proxy” for the people of Australia, or in this case the people of Queensland, is an idea given legitimacy by the High Court…” giving reference to Australian Capital Television Pty Ltd v Commonwealth  HCA 45 (1992) 177 CLR 106, (which is binding on all courts in Queensland) in which Mason J. states (at 37):
“And, most recently, the Australia Act 1986 (U.K.) marked the end of the legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people. The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act.”
He continues with a statement by the former Chief Justice of the High Court, Chief Justice Brennan:
“As the Constitution can now be abrogated or amended only by the Australian people in whom, therefore, the ultimate sovereignty of the nation resides, the Oath of Allegiance and the undertaking to serve the head of State as Chief Justice are a promise of fidelity and service to the Australian people.”
This comes under the principle of Responsible Government. 3 Under the principle of Responsible Government, the Executive and Judiciary are responsible to, and answerable to, the people through the Legislative branch. See R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 275; 4 McGinty (1996) 186 CLR 140 at 269; 5 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (Mason C.J. at 30; Dawson J. at 20; McHugh J. at 15) 6
The Engineers’ Case (1920) 28 CLR, per Knox C.J., Isaacs, Rich and Starke JJ. at p 147): “The principle of responsible government – the system of government by which the executive is responsible to the legislature – is not merely an assumption upon which the actual provisions are based; it is an integral element in the Constitution.” 7
The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley (1926) 37 CLR 393, (Isaacs J.) at p 413: “It is part of the fabric on which the written words of the Constitution are superimposed.” 8
This notion of “popular sovereignty” in relation to the Crown needs further clarification, as it is well established that references to “the Crown” do not mean the monarch in a personal capacity, but that of the body politic. This notion began with Re Stepney Election Petition; Isaacson v Durant (1886) 17 QBD 54 9 in which Lord Coleridge CJ overturned the previous ratio. He said (at 65-66):
“…as the statutes referred to the Crown and not the sovereign, allegiance was due to the King in his politic, and not in his personal, capacity.”
In relation to this case, on page 386 of the The Constitution of New South Wales, 10 Anne Twomey notes that:
“At that time, allegiance was to the king or queen in their personal capacity, rather than as a body politic. However, notions of allegiance have since changed. In 1886 in Isaacson v Durant, it was held that allegiance was owed not to the monarch in his or her personal capacity, but rather to the Crown as a body politic. As the body politic was a creation of law, then allegiance could be changed by a law-making authority.”
Sue v Hill  HCA 30 11 details how the expression “the Crown” is used in constitutional theory from 83:
“The writings of constitutional lawyers at the time show that it was well understood in 1900, at the time of the adoption of the Constitution, that the term “the Crown” was used in several metaphorical senses. “We all know”, Lord Penzance had said in 1876, “that the Crown is an abstraction”, and Maitland, Harrison Moore, Inglis Clark and Pitt Cobbett, amongst many distinguished constitutional lawyers, took up the point.”
So generally, references to the Crown is taken as that of the body politic, according to Oxford Australian Law Dictionary 2010 Edition, an “abstract metonymic concept” that “represents the legal embodiment of the executive government”.
Whatever allegiance is owed is to the body politic of the particular State or Nation, not to the Queen in a personal sense. The decision in Re Stepney Election Petition; Isaacson v Durant (1886) 17 QBD 54 is reviewed in Singh v Commonwealth of Australia  HCA 43, 12 in relation to the definition of allegiance:
(at 165) “These duties or obligations, whatever their content, are said to be due to the Crown in the “politic” not the “personal capacity” of the sovereign.”
(from 57 ) “While the Crown remained indivisible, a British subject was outside the denotation of the term “alien”. However, when the Crown divided, so to speak, the denotation of the term “subject of the Queen” changed. As a result, British subjects no longer owed permanent allegiance to the Queen of Australia and became “aliens” in Australia. … The meaning of “aliens” in the Constitution does not turn on whether under the law of another country the person in question owes a duty of allegiance to that country. It turns on whether that person owes a duty of permanent allegiance to the Queen of Australia.”
(at 131) “The change in the application of the term is the result of a number of significant developments since federation. They include:
(a) the gradual emergence of Australia as an independent, sovereign nation (which arguably culminated with the passage of the Australia Acts 1986 (Cth) and (UK));
(b) the acceptance of the divisibility of the Crown (implicit in the development of the Commonwealth as an association of independent nations);
(c) the creation of a distinct Australian citizenship commencing in 1948 with the passage of the Nationality and Citizenship Act and the British Nationality Act 1948 (UK); and
(d) the acceptance by this Court that the phrase “subject of the Queen” in the Constitution no longer means “subject of the Queen of the United Kingdom” but “subject of the Queen of Australia”.”
The phrase: “A subject of the Queen, resident in any State…” in section 117 13 of the Commonwealth Constitution was also interpreted by the High Court in Re Patterson  HCA 51; 207 CLR 391 (from 226): 14
“The notion that an individual became a British subject at birth anywhere within the dominions of the Imperial Crown and by reason of allegiance to the Imperial Crown, had been abandoned both in the United Kingdom and in Australia before the birth of the prosecutor. … It may be accepted that, at the time of federation, the state of subjection identified in s 117 was to the indivisible Imperial Crown. But, as a result of the changes made in the constitutional relationships within the British Commonwealth which were reflected in the various statutory provisions that were made between 1948 and 1953 and are mentioned earlier, the allegiance owed by the subjects spoken of in s 117 was to the Crown in its Australian politic capacity. There no longer was in constitutional theory or political reality the Imperial Crown of earlier days. To continue to read s 117 as it had been read initially would have been to deprive it of any useful operation.”
Gaudron J. found the divisibility of the Crown to be “implicit in the Constitution.” in Sue v Hill  HCA 30. The divisibility of the Crown has been upheld by the UK High Court in relation to the Queen of Canada in R v. Foreign Secretary ex parte Indian Association of Alberta  1 QB 892 15 and in relation to the Queen of Australia in Fitzgibbon v HM Attorney General  EWHC 114 (Ch). 16
Ultimately, the terminology which refers to the Crown or to her Majesty has altered quite significantly since the Constitution Act 1867 (Qld) and the Commonwealth Constitution was drafted. If one was to read certain passages in either, relying purely on form as opposed to substance, it would inevitably lead to interpretations such as James Bowes has concluded.
Take for example the words “to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom“ in covering clause 9 of the Commonwealth Constitution. The expression “the Queen” also is used in this sense in covering clause 5 and in the Constitution in ss 2‑4, 42, 44, 58‑60, 64, 66, 68, 74, 117, 122, 126 and 128, together with the Schedule. When read on form as opposed to substance, these passages would surely make any notion of “the Queen of Australia” seem ultra vires, but such is not the case, as was well explained in Sue v Hill  HCA 30.
The body politic that is the Crown in relation to Australia is the people of Australia, and the body politic that is the Crown in relation to the States is the people of that particular State. This point is highlighted by the statements of Wheeler JA in Glew v Shire of Greenough  WASCA 260, 17 in relation to the judicial oaths taken “to the people of Western Australia” as opposed to “the Crown”, stating that the change in terminology is entirely consistent with constitutional reality.
It is well recognised in the case law that between the time of the passing of the Royal Style and Titles Act 1973, 18 and the Australia Acts 1986, 19 there were two separate systems operating in Australia in relation to the Crown. While the Commonwealth was under the “Queen of Australia”, the Australian States still retained their allegiances to the “Queen of the United Kingdom”. This was a point recognised in Commonwealth v Queensland  HCA 43; (1975) 134 CLR 298 20 (the ‘Queen of Queensland Case’).
“Advice in relation to the exercise of all the regal powers and functions “in respect of a State shall be tendered by the Premier of the State”. Section 7(5) of the Australia Act so provides. The effect of s 10 thereof is that, since 1986, Her Majesty’s Government in the United Kingdom has had no responsibility for the government of any State. That was not always so. Attempts in the 1890s to include, in what became the Constitution, a requirement that all references and communications between a State Governor and the Queen, or from the Queen to a State Governor, be through the Governor‑General failed. Until 1986, the monarch took advice from the United Kingdom Government on such matters as the appointment of State Governors or the making of orders or proclamations under Imperial legislation relating to the States.
Further, s 1 of the Australian States Constitution Act 1907 (Imp) required a reservation, for the signification of the sovereign’s pleasure thereon, that is to say on advice of British Ministers, of certain Bills passed by the legislature of any State, and without prejudice to the reservation of Bills in accordance with instructions given to the Governor of the State.
This statute may well have been impliedly repealed by ss 8 and 9 of the 1986 UK Act, as well as by the general provision in s 10 that the United Kingdom Government was to have no further responsibility for the government of any State. In any event, the States Constitution Act, in so far as it remained effective as a law of the United Kingdom, was repealed by the Statute Law (Repeals) Act 1989 (UK).
Sections 7, 8 and 9 of the Australia Acts 1986 states:
“7. (1) Her Majesty’s representative in each State shall be the Governor.
(2) Subject to subsections (3) and (4) below, all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State.
(3) Subsection (2) above does not apply in relation to the power to appoint, and the power to terminate the appointment of, the Governor of a State.
(4) While Her Majesty is personally present in a State, Her Majesty is not precluded from exercising any of Her powers and functions in respect of the State that are the subject of subsection (2) above.
(5) The advice to Her Majesty in relation to the exercise of the powers and functions of Her Majesty in respect of a State shall be tendered by the Premier of the State.
8 An Act of the Parliament of a State that has been assented to by the Governor of the State shall not, after the commencement of this Act, be subject to disallowance by Her Majesty, nor shall its operation be suspended pending the signification of Her Majesty’s pleasure thereon.
9(1) No law or instrument shall be of any force or effect in so far as it purports to require the Governor of a State to withhold assent from any Bill for an Act of the State that has been passed in such manner and form as may from time to time be required by a law made by the Parliament of the State.
(2) No law or instrument shall be of any force or effect in so far as it purports to require the reservation of any Bill for an Act of a State for the signification of Her Majesty’s pleasure thereon.”
Section 11 of the Australia Acts 1986 also removed any appeals to Her Majesty in Council:
“11. (1) Subject to subsection (4) below, 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.”
Extract from Nibbs v Devonport City Council  TASSC 34: 21
“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  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.
James Bowes believes that Queensland has a special status in comparison to the other States, due to the Entrenched Provisions in section 53 of the Constitution Act 1867 (Qld). 22
Firstly, such a position is contrary to section 117 of the Commonwealth Constitution, 23 which provides:
“A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.”
So if there was a disability or discrimination that applied to subjects of the Queen in one State, it would equally apply to the subjects of the Queen in all other States, including Queensland.
Secondly, it would also be a denial that Queenslanders are Australian citizens, as the High Court has ruled that allegiance owed by Australian citizens is to the Queen of Australia in Pochi v Minister for Immigration & Ethnic Affairs (Macphee) (1982) 151 CLR 101 at 109 24 and Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 186, 25 a ratio upheld by the Supreme Court of Queensland in Cameron v Peter D Beattie in his capacity as Premier & Ors  QSC 115: 26
“The allegiance which Australians owe to the Queen is owed as subjects of the Queen of Australia: Pochi v Minister for Immigration & Ethnic Affairs (Macphee) (1982) 151 CLR 101 at 109 and Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 186. By s 83(1)(b) of the Electoral Act 1992 (Qld) only a person who is an Australian citizen may be elected as a member of the Legislative Assembly. An Australian citizen owes allegiance to the Queen of Australia. Section 4 of the Constitution Act 1867 (Qld) merely provides for an Australian citizen elected as a member of the Legislative Assembly to swear an oath of allegiance to the Queen of Australia to whom that citizen already owes allegiance.”
James Bowes disregards Cameron v Peter D Beattie in his capacity as Premier & Ors  QSC 115 as he believes that it was purely in regard to the Electoral Act 1992, and that since section 4 of the Constitution Act 1867 ceased to exist after the commencement of the 2001 Constitution, the case it is now obsolete.
But James Bowes neglects to note the ratio decidendi of the case, the ‘rationale for the decision’. If he read the case objectively, it is obvious that the ratio has nothing to do with the provisions of the Constitution Act 1867, nor even the Electoral Act 1992. The ratio is the fact that people in Queensland are Australian citizens. This is the rationale from which the court built its decision. It then observed who ‘Australian citizens’ owe allegiance to, and relied on the various HCA cases cited as judgment authorities to establish this position.
Therefore, it is irrelevant to the ratio whether it was a few months prior to the commencement of the 2001 Constitution, and the fact that section 4 of the Constitution Act 1867 had ceased to exist, nor that it didn’t mention sections 2 or 2A. The ratio remains the same today as it did on the day it was decided in 2001, as it relies on the fact that people in Queensland are Australian citizens. Therefore, the decision is not only binding on the lower courts in Queensland but also persuasive to the Supreme Court in future cases in this matter.
In fact, Cameron v Peter D Beattie in his capacity as Premier & Ors  QSC 115 was mentioned in 2006 by Anne Twomey on page 387 in The De-Colonisation of the Australian States 27 who agreed that:
“…citizenship and the ‘allegiance’ that is associated with it fall within the legislative and executive powers of the Commonwealth, resulting in the allegiance of Australians being held to the ‘Queen of Australia’…”
Section 44 of the Constitution 28 also has relevance here, which provides:
“Any person who:
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power;
… shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
If the allegiance owed by Queenslanders was to the Queen of the United Kingdom, or Queenslanders were entitled to the rights or privileges afforded by the Queen of the United Kingdom, then it would surely be allegiance to a foreign power according to the High Court. This point is upheld in many cases including Sue v Hill (1991) HCA 30; 199 CLR 462, Re Patterson  HCA 51; 207 CLR 391 and Singh v Commonwealth of Australia  HCA 43. The decision in Sue v Hill  HCA 30 actually involved a Queensland Senator, and if the allegiance she owed as a British duel citizen was identical to that of a resident of Queensland, then the people of Queensland would all subjects of a foreign power.
It follows that Queensland senators would be ineligible to sit in the Commonwealth Parliament under section 44, as it was ultimately a question of allegiance to the Queen of the United Kingdom. In turn, it follows that taking an oath to the Queen of Australia as a Queensland Premier would be an oath to a foreign power under the Constitution Act 1867 (Qld). Such are the absurdities that result with these conclusions, which is why Michael Stokes later took a contrary position, as Anne Twooney notes.
- 1 https://freemandelusion.files.wordpress.com/2020/09/maintaining-fairness-to-accused-in-criminal-matters-the-separation-of-powers.pdf
- 2 https://freemandelusion.com/2020/09/26/the-unrecognised-reserve-powers/
- 3 https://freemandelusion.wordpress.com/2018/07/07/responsible-government-in-australia/
- 4 https://jade.io/article/65118/
- 5 https://jade.io/article/188386/
- 6 https://jade.io/article/67707
- 7 https://jade.io/article/62882
- 8 https://jade.io/article/63290
- 9 https://jade.io/citation/1336930
- 10 https://books.google.com.au/books?id=KayCZfZwafwC&pg=PA912&lpg=PA912&dq#v=onepage&q=queen%20of%20queensland%20&f=false
- 11 https://jade.io/article/68130
- 12 https://jade.io/article/68490
- 13 https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=6ED2CAE61E7742A1B2C42F95D4C05252&_z=z#chapter-05_117
- 14 https://jade.io/article/68286
- 15 https://freemandelusion.wordpress.com/2020/06/12/r-v-foreign-secretary-ex-parte-indian-association-of-alberta-1982-1-qb-89/
- 16 https://freemandelusion.wordpress.com/2020/06/12/fitzgibbon-v-hm-attorney-general-2005-ewhc-114-ch/
- 17 https://jade.io/article/10564
- 18 https://freemandelusion.files.wordpress.com/2019/06/c2004a00044.pdf
- 19 https://jade.io/article/223405
- 20 https://jade.io/article/66550
- 21 https://jade.io/article/404233
- 22 https://www.legislation.qld.gov.au/view/html/inforce/current/act-1867-038#sec.53
- 23 https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=6ED2CAE61E7742A1B2C42F95D4C05252&_z=z#chapter-05_117
- 24 https://jade.io/article/67021
- 25 https://jade.io/article/67448
- 26 https://archive.sclqld.org.au/qjudgment/2001/QSC01-115.pdf
- 27 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=984994
- 28 https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=074367F0015D42C2B005207F5642376A&_z=z#chapter-01_part-04_44
(4) Section 53 of the Constitution Act 1867
James Bowes believes that the Office of Governor contained in the Entrenched Provisions in section 53 of the Constitution Act 1867 (Qld) 1 cannot be altered without the required referendum, and this is what he bases his contentions on, while failing to see that those provisions were in fact already altered by the Australia Acts 1986 without a referendum. “Amendment of Constitution Act of Queensland” in section 13 of the Australia Acts 1986 provides: 2
“(1) The Constitution Act 1867-1978 of the State of Queensland is in this section referred to as the Principal Act.
(2) Section 11A of the Principal Act is amended in subsection (3) – 3
(a) by omitting from paragraph (a) –
(i) “and Signet”; and
(ii) “constituted under Letters Patent under the Great Seal of the United Kingdom”; and
(b) by omitting from paragraph (b) –
(i) “and Signet”; and
(ii) “whenever and so long as the office of Governor is vacant or the Governor is incapable of discharging the duties of administration or has departed from Queensland”.
(3) Section 11B of the Principal Act is amended – 4
(a) by omitting “Governor to conform to instructions” and substituting “Definition of Royal Sign Manual”;
(b) by omitting subsection (1); and
(c) by omitting from subsection (2) –
(ii) “this section and in”; and
(iii) “and the expression ‘Signet’ means the seal commonly used for the sign manual of the Sovereign or the seal with which documents are sealed by the Secretary of State in the United Kingdom on behalf of the Sovereign”.
(4) Section 14 of the Principal Act is amended in subsection (2) by omitting”,subject to his performing his duty prescribed by section 11B,”.
As Anne Twomey points out on page in The De-Colonisation of the Australian States: 5
“Section 53 of the Constitution Act 1867 (Qld) provides that any Bill that expressly or impliedly provides for the alteration of the office of the Governor of Queensland or ‘in any way affects’ certain specified sections must be approved at a referendum before it becomes a law. The argument proceeds that the Australia Acts (Request) Act 1985 (Qld) requested the enactment of Commonwealth legislation which would alter the office of the Governor of Queensland and that the Queensland Act therefore required approval in a referendum in order to be valid. The argument concludes that the Australia Act 1986 (Cth) is invalid because it was not enacted pursuant to a valid request from all the affected States and that this also affected the validity of the Australia (Request and Consent) Act 1985 (Cth), making the Australia Act 1986 (UK) invalid.
This argument was rejected by the Queensland Court of Appeal in Sharples v Arnison and by the Federal Court in Kelly v Campbell. The fundamental flaw is that the Australia Acts (Request) Act 1985 (Qld) did not of itself have the effect of expressly or impliedly altering the office of Governor. It merely requested the Commonwealth and Westminster Parliaments to do so. The question then arises as to whether such a request law ‘affected’ the purportedly entrenched provisions. A request for a change does not itself affect the existing law. The request may, indeed, be rejected. If so, there could be no effect upon the law.”
Sharples v Arnison  2 Qd R 444, 6 per McPherson JA at  (McMurdo P and Davies JA agreeing).
“The combined effect of these enactments, which joined together the legislative powers of the Parliament of the United Kingdom, the Commonwealth, and Queensland, had, through the force of what in each of them was numbered as s 13(3), the effect of repealing s 11B in the form in which it had been enacted in the 1977 Act, and simultaneously of substituting a new s 11B in the limited form in which it now appears in the Constitution Act 1867. The result unquestionably was to “affect” s 11B in its original form; but the referendum requirement imposed by s 53 was not set in motion by what was done. There never has at any time been a Bill in the Queensland Parliament to repeal, amend or otherwise “affect” s 11B. The Australia Acts (Request) Act 1985 (Qld) did not do so. Instead, it requested that the United Kingdom Parliament and the Commonwealth Parliament take that step. Neither of those legislative bodies was bound by s 53(1) of the Constitution Act 1867 (Qld) as amended by the 1977 Act to submit the Bills which would become those Acts to a referendum of the voting electors of Queensland before they were presented for assent. The Parliament of Queensland would have been bound by s 53(1) to do so; but the Bill that became the Australia Acts (Request) Act 1985 (Qld) did not “affect” s 11B. It simply asked the Parliaments of the United Kingdom and the Commonwealth to take that step.”
Sharples v Arnison  QSC 56, 7 per Ambrose J at ;
“Connolly J dismissed this application on the basis that s 53 of the Constitution Act did not and could not affect the power of the Queensland Government or Parliament to request constitutional change through the Commonwealth Parliament pursuant to s 51 XXX(viii) of the Australian Constitution. Although on one view it might be contended that the use of s 51 XXX (viii) to effect an alteration by partial repeal of ss 11B and 14 of the State Constitution Act was a device adopted to circumvent the provisions of s 11A(2) and s 53(1) of the Constitution Act, nevertheless, it could not be said that the presentation of the bill for the Australia Act (Request) Act 1985 for assent without first having it approved by the electors upon referendum was contrary to the requirements of either s 11A(2) or s 53(1) of the Constitution Act 1867 as at 1985.”
Sharples v Arnison  QCA 274 (per de Jersey CJ upholding the judgment of Ambrose J); 8 The Queen v The Minister for Justice and Attorney-General of Queensland; ex parte Alan George Skyring, (unreported, Supreme Court of Queensland, Connolly J, 17 February 1986); Skyring v Electoral Commission of Queensland  QSC 080, per Muir J at : 9
“In proceedings in the Supreme Court in 1986 … Connolly J rejected the argument finding that: the Australia Acts (Request) Act made no alteration to the Constitution Act; Section 53 of the Queensland Constitution could not restrict the legislative powers of the Parliament at Westminster; there was no limit to that Parliament’s legislative power and that any relevant alteration to the Constitution Act was effected by an enactment of the Parliament at Westminster (and/or by the Commonwealth Parliament). The decision, with respect, is plainly correct.”
See also: Skyring v Crown Solicitor  QSC 350, 10 per Philippides J at  – .
Kelly v Campbell  FCA 1125, per Madgwick J at : 11
“If that view is correct, it is unnecessary to deal further with the matters at issue. However, I would add some further brief comments. Firstly, as to what may be called the “Queensland” point, the manner and form restriction relied on by Mr Kelly relevantly applied so as to require a referendum before royal assent might be given, among other things, to “a bill that expressly or impliedly provides for the for the abolition or alteration of the office of the Governor [of Queensland]”: s 53 of the Constitution Act 1867 (Qld) (“the Queensland Constitution”). However, the Australia Acts (Request Act) 1985 (Qld) (“the Queensland Request Act”) is not a law within the contemplation of s 53 of the Queensland Constitution. The Queensland Request Act did not purport to abolish or alter the office of the Governor of Queensland (nor otherwise affect the other manner and form protected provisions of the Queensland Constitution). While it expressed a request for the enactment of legislation by the Commonwealth and United Kingdom Parliaments, the Queensland Request Act did not itself abolish or alter the Governor’s office. Consequently, there was no requirement that the Bill for the Queensland Request Act should have been approved by a referendum of the Queensland people. Any complaint about the effect secured by the Queensland Request Act process lies in the realm of politics, not law. Sharples v Arnison  QCA 518, a unanimous decision of the Queensland Court of Appeal, in litigation brought by Mr Kelly before he adopted his present name, makes this clear. Even if I thought this decision were attended by some doubt, which as presently advised I do not, I would certainly follow it as to matters concerning the Queensland Constitution, unless I were quite convinced that it was plainly wrong; it is obvious that I am not so convinced.”
The issue was not pursued in the High Court: Re Australian Electoral Commission; Ex parte Kelly (2003) 77 ALJR 1307, per Gummow J at . 12
“In oral submissions, counsel for the applicant correctly accepted that his client could only have standing with respect to the election for Senators for New South Wales. He correctly also did not press complaints in the applicant’s written submissions of 16 April 2003 concerned with the validity of the appointment of the Governor of New South Wales.”
Since the amendments to sections 11A and 11B by the Australia Acts 1986, these sections are provided unaltered and current in Section 53 of the Constitution of Queensland 1867, and can also be found in Attachment 1 of the Constitution of Queensland 2001, where they also remain unaltered. 13 However, as James Bowes contends, the Constitution of Queensland 2001 is invalid for these reasons, and he goes as far as saying:
“There is no valid legislation in Queensland since the parliament altered the Office of Governor in the 2001 Constitution.”
This contention is obviously mistaken, as the alteration had already occurred in 1986, and has been upheld by the highest courts in Queensland for the reasons stated above. In relation to the Constitution of Queensland 2001, an identical contention was raised in Lade and Company Pty Ltd v Finlay & Anor; Lade v Franks & Anor  QSC 382: 14
“Apart from invalidity brought about by a failure to comply with Imperial legislation Mr Lade also seems to contend, relying on s 53 of the Constitution Act 1867 (Qld), that, absent a referendum, the constitutional requirements necessary to validate the various legislative provisions under which rates have been levied or his Certificate of Title dealt with were not met.
There are at least two difficulties for Mr Lade’s contentions. First, parliament is quite at liberty to alter these provisions if it so wishes, even though the Act is expressed to be a constitutional one: see McCawley v R  AC 691 (PC). So if the relevant Acts have been passed without regard to the requirements of the Constitution Act 1867 (Qld), as Mr Lade contends, then Parliament must be assumed to have so intended.
Secondly, I am required to take judicial notice of Acts of Parliament and assume the accuracy of copies of such Acts: s 43 and 46A of the Evidence Act 1977 (Qld). So, without evidence to the contrary, I am not concerned with the question of whether the constitutional requirements relating to the valid passing of any Act of Parliament have been complied with.
Now, so far as I am aware, there never has been a referendum held to alter these constitutional arrangements. Equally, so far as I am aware, there has been no Bill passed that expressly or impliedly provides for the abolition of or alteration in the office of Governor or that expressly or impliedly in any way affects any of the nominated sections of the Constitution Act 1867, nor do any of the legislative enactments mentioned by Mr Lade in his pleading have this effect. As well, again so far as I am aware, the constitutional requirements were followed in the passing into law of the enactments in question.
The following was included in the “Explanatory Notes” in enacting the Constitution of Queensland 2001, and provides the reasoning of why the provisions were left unaltered and current in their original enactment in the Constitution Act 1867: 15
The Legislative Assembly can consolidate the majority of Queensland’s constitutional provisions into a Constitution of Queensland by passing an ordinary Act of Parliament. However, to wholly consolidate the existing provisions of constitutional legislation would require a referendum as a number of the provisions of the Constitution are said to be ‘entrenched’.
Entrenched provisions are laws that the Parliament has sought to protect so that the laws may not be repealed or changed through normal lawmaking procedures. Entrenched provisions may not be repealed, amended, or affected (depending on the terms of the entrenchment) unless Parliament follows certain special measures that are required, for example, first obtaining the approval of electors at a referendum.
In Queensland, constitutional provisions that are said to be referendum entrenched (the “entrenched provisions”) are contained in the Constitution Act 1867 (sections 1, 2, 2A, 11A, 11B and 53), the Constitution Act Amendment Act 1890 (section 2) and the Constitution Act Amendment Act 1934 (sections 3 and 4). These provisions concern the establishment and law-making power of the Parliament of Queensland and the Legislative Assembly, the duration of the Parliament and matters pertaining to the office of the Governor.
These provisions will not be relocated, therefore, into the Constitution of Queensland 2001 and will remain in the Constitution Act 1867, the Constitution Act Amendment Act 1890 and the Constitution Act Amendment Act 1934. The entrenched provisions have not been restated in modern drafting style in the Bill in the manner recommended by the Legal, Constitutional and Administrative Review Committee.
There is a concern that a court could find that modernised versions of the entrenched provisions included in the Bill would impliedly repeal the entrenched provisions by applying the general principle of statutory interpretation that a later enactment will repeal an earlier inconsistent provision. It may be open for a court to conclude that the fact the proposed later provision purports to restate in modern language the precise effect of the earlier provision demonstrates that the two provisions are in law inconsistent and cannot stand together. In doing so, the court could strike the whole Act down on the basis that Assent should not have been given to a Bill which included a provision which had the effect of repealing the entrenched sections until a referendum had been held.
This interpretation may be applied even if the Parliament expressed an intention not to amend (or repeal) the entrenched provision. A court may be forced to the conclusion that the Parliament’s statement of intention is inconsistent with the actual effect of what it has purported to do.
For these reasons, the entrenched provisions have not been modernised and restated in the Bill. However, to ensure that Queensland’s constitutional legislation is as accessible as possible, signpost provisions have been included in the Bill. These signpost provisions refer to the entrenched provisions in their original Acts as containing the substantive law about the various matters pertaining to the Parliament and the office of the Governor. To further enhance accessibility, copies of the entrenched provisions have been included in attachments 1, 2 and 3 of the Bill.
The Constitution of Queensland 2001, in particular, the inclusion of the signpost provisions and attachments 1, 2 and 3, is not intended to expressly or impliedly in any way affect the entrenched provisions.
I should also add to this segment, that any assumed invalidity of the Australia Acts 1986 in reference to the Entrenched Provisions being altered without the required referendum, in Queensland by section 13 and in Western Australia by section 14 of the Act, was rejected by the High Court in Attorney-General (WA) v Marquet (2003) 217 CLR 545. 17 The majority found that it was sufficient that the Australia Act was passed in reliance upon s 51(xxxviii) of the Constitution which confers on the Commonwealth power to legislate at the request of the states, and this decision is binding on all courts in Australia on this ratio. It was most recently raised in Commonwealth Bank of Australia v Haughton  SASC 135, 18 where the contention was rejected in reliance on this case and Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. 19
- 1 https://www.legislation.qld.gov.au/view/html/inforce/current/act-1867-038#sec.53
- 2 https://jade.io/article/223405
- 3 https://www.legislation.qld.gov.au/view/html/inforce/current/act-1867-038#sec.11A
- 4 https://www.legislation.qld.gov.au/view/html/inforce/current/act-1867-038#sec.11B
- 5 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=984994
- 6 https://jade.io/article/733535
- 7 https://jade.io/article/172366
- 8 https://jade.io/citation/17327902
- 9 https://jade.io/article/204983
- 10 https://jade.io/article/172533
- 11 https://jade.io/article/106056
- 12 https://jade.io/article/68407
- 13 http://www5.austlii.edu.au/au/legis/qld/consol_act/coq2001288/sch1a.html
- 14 https://jade.io/article/205056
- 15 https://www.legislation.qld.gov.au/view/html/inforce/current/act-1867-038
- 16 https://www.legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2001-755
- 17 https://jade.io/article/68440
- 18 https://www.jade.io/article/756784
- 19 https://jade.io/article/68446
(7) Anne Twomey extracts
The following are extracts from Anne Twooney’s papers… “Keeping the Queen in Queensland” – “States, the Commonwealth, and the Crown—the Battle for Sovereignty” – “Changing the Rules of Succession to the Throne” – “The Constitution of New South Wales”.
Firstly, it must be pointed out, and is quite apparent in reading Anne Twooney’s writings that explores this subject, nowhere does she actually give a definitive unambiguous response and her final view on the matter at law, but merely gives two possible scenarios in a hypothetical, and doesn’t commit to either, as can be seen in the following statements in “States, the Commonwealth, and the Crown—the Battle for Sovereignty“:
“I think if one wants to take analogies from it, one should be able to say that if sovereignty were vested collectively in the Commonwealth and the states, and that’s what Section 15 of the Australia Acts did, then by analogy you would say that the Crown then is a collective Crown of the Commonwealth and the states. It is therefore one Crown; and I think you can make a good argument for that. Ultimately, I think this is not for me to decide, but something for everyone to decide, and I don’t have a final view on it.”
“That would in part depend upon whether we have one hybrid crown or whether we have separate Crowns, to which we don’t know the answer. Ultimately it’s probably irrelevant, because Section 7 of the Australia Acts doesn’t give the Queen that power any more…”
You can note that Anne Twomey agrees that the Australia Acts 1986 did in fact dramatically affect the position of the Queen in relation to Queensland, in these particular passages in relation to sections 11 and 7 of the Act.
Secondly, it must also be pointed out that references to the Queen are references to the body politic the Crown, not the Queen in a personal sense, as already covered earlier in this comment. And in this sense I would have to agree that it is a question that remains to be answered, though it is self-evident that there are separate Crowns of each of the States, as they each are a separate and distinct body politic. However, this does not imply that the Crown of each State remains under the Queen of the United Kingdom, (as Anne Twomey points out due to section 7 of the Australia Acts 1986 she doesn’t have that power anymore) but it is rather a hybrid Crown of each State. And relevantly to this point, the Titles associated with the Queen of the United Kingdom, such as “Defender of the Faith” are no longer of any effect.
In “Keeping the Queen in Queensland“, it becomes clear that Anne Twooney actually has doubts regarding the effectiveness of the entrenchment of the provisions in the 1867 constitution, and raises the point that: (a) it may be invalidly made or ineffectively entrenched, (b) there may be a defect in the grant of royal assent to the Constitution Act Amendment Act 1977, (c) it may be void for repugnancy post 1986, (d) that section 6 of the Australia Acts 1986 may be the only source of effective entrenchment, not the Constitution Act Amendment Act 1977, and (e) ultimately, she implies that it shouldn’t have been entrenched at all. In the 3rd paragraph, on the 1st page, Anne Twooney states that: “On their face, these provisions are entrenched and cannot be repealed without a referendum, although this remains the subject of dispute.” So who disputes this if it so undeniable as James Bowes likes to claim? She also covers this in the Conclusion on page 99:
“To what extent is the Queensland Parliament bound by ss 1, 2, 2A, 11A, 11B and 53 of the Constitution Act 1867 (Qld) today? Was it being too cautious in leaving them untouched when the Constitution of Queensland 2001 was enacted? It is arguable that some or all of these purportedly entrenched provisions were invalidly made or ineffectively entrenched. It may be the case that there was a defect in the grant of royal assent to the Constitution Act Amendment Act 1977, so that it never became a law, but it is more likely that a court would adopt a pragmatic approach and find grounds for its validity. There is also a technical argument that parts of ss 2A and 11B which replicated British laws of paramount force were void for repugnancy, but this argument no longer has much relevance given the amendments made to s 11B by s 13 of the Australia Acts and the application of s 9A of the Acts Interpretation Act 1954 (Qld).
The most relevant question is the effectiveness of the entrenchment of these provisions. If s 6 of the Australia Acts 1986 is the only source of effective entrenchment, then ss 1, 2 and 2A would appear to be effectively entrenched, as laws amending or repealing them would most likely be laws respecting the constitution, powers or procedure of the Parliament. The status of ss 11A and 11B is far more doubtful, as the office of Governor and the procedure for the Governor’s appointment appear to be a step removed from the constitution of the Parliament. (The effectiveness of the entrenchment of s 11A has been described elsewhere as ‘questionable’: Suri Ratnapala and ors, Australian Constitutional Law – Commentary and Cases (2007) 806.) As for whether there are other sources of power for the effective entrenchment of provisions such as s 14 of the Constitution Act, this remains unlikely, but still uncertain. (Note the purported entrenchment in s 18 of the Constitution Act 1975 (Vic) of provisions concerning the executive, the courts, the DPP, the Auditor-General and access to information.)
Given the uncertainty that abounds on the topic and the lack of clear authority, the caution of the Queensland Government in leaving most of the entrenched provisions of the Constitution Act 1867 untouched was probably wise. The difficulties caused by these entrenched provisions and their potential unintended consequences serve as a salient warning for all governments. Freezing provisions by way of entrenchment may appear most beneficial at the time that it is done, but what one entrenches in haste to achieve a particular political aim is often regretted at leisure.”
“I tried to address this in a PhD thesis I had. [The Chameleon Crown – Ed] I think if one wants to take analogies from it, one should be able to say that if sovereignty were vested collectively in the Commonwealth and the states, and that’s what Section 15 of the Australia Acts did, then by analogy you would say that the Crown then is a collective Crown of the Commonwealth and the states. It is therefore one Crown; and I think you can make a good argument for that. Ultimately, I think this is not for me to decide, but something for everyone to decide, and I don’t have a final view on it.
How does that differ now if we just have one Queen of Australia? If the same situation arose again, with a state premier advising the governor not to issue the writs to an election, could the Commonwealth Prime Minister advise the Queen as Queen of Australia to instruct the state governors to do so? That would in part depend upon whether we have one hybrid crown or whether we have separate Crowns, to which we don’t know the answer. Ultimately it’s probably irrelevant, because Section 7 of the Australia Acts doesn’t give the Queen that power any more. The Queen only has power in relation to the appointment and removal of the governor. So unless the Queen were to say to the governor: ‘I will remove you unless you issue the writs’, it wouldn’t be within her power. The Queen could only be advised on appointing and removing the Governor by the state premier. So it’s not going to happen. There is no jurisdictional power for a Commonwealth Prime Minister to advise the Queen of Australia to instruct state governors to issue writs. Not that I think any of this is actually going to happen, but theoretically that’s the answer.”
(Page 17) “How many Australian Crowns? The other consequence of the enactment of the Australia Acts was that it ended the previous bifurcation of the Crown with respect to Australia. Prior to 1986 the Australian States were dependencies of the Crown of the United Kingdom while the Australian federal government came under the Crown of Australia. What replaced the old system in 1986 remains a matter of dispute. The Australia Acts 1986 simply refer to “Her Majesty‟ and do not identify the capacity in which she acts. They terminated the role of British Ministers in advising the Queen on State matters and substituted State Premiers, who now directly advise the Queen on matters in relation to their respective States. It is arguable that once the responsible Ministers of a jurisdiction obtain the right to advise the Queen directly with respect to that jurisdiction, this creates a new Crown. It is also arguable that the effect of the Australia Acts was to create a single federal Crown in which the Sovereign takes advice from different ministers depending on the issue. This is another issue that British officials sought to raise during the negotiation of the Australia Acts, but it was swept under the carpet as it would have revealed differences that could have destroyed the consensus for the enactment of the Australia Acts.
If each State has its own Crown, it would also, at least since the Australia Acts 1986 came into force, control the law of succession with respect to its Crown. For example, in New South Wales s 6 of the Imperial Acts Application Act 1969 (NSW) declared the Bill of Rights 1688, the Act of Settlement 1701 and the Royal Marriages Act 1772 to be in force in New South Wales from 1828 and to continue to be in force in New South Wales. These Acts are now part of New South Wales law and could theoretically be amended with respect to New South Wales by the New South Wales Parliament, subject to any constraints implied by the Australia Acts and covering clause 2 of the Commonwealth of Australia Constitution Act.
If, on the other hand, there is a single Australian Crown which is federal in its nature and which performs a fundamental role under both the State and Commonwealth Constitutions, then an even more complicated question arises as to who could amend the law of succession with respect to that Crown.”
Page 605, titled “The Australia Acts and the Queen of Australia”. (see also footnotes #115, 116, 117) and on page 145 titled “The effect of the Australia Acts” (see also footnotes #412) I can’t copy and paste the passages and footnotes on Google Books, (or my hardback copy) and there doesn’t appear to be a PDF available. However, note her mention of Michael Stokes in footnote #115, and how he later retracted the position, and also the contrary view of Professor Winterton in footnote #412.
- “Keeping the Queen in Queensland” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1559523
- “States, the Commonwealth, and the Crown—the Battle for Sovereignty” https://www.aph.gov.au/senate/~/~/link.aspx?_id=76D508CC96314F19A371171C7A270930&_z=z
- “Changing the Rules of Succession to the Throne” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1943287
- “The Constitution of New South Wales” https://books.google.com.au/books?id=KayCZfZwafwC&pg=PA912&lpg=PA912&dq#v=onepage&q=queen%20of%20queensland%20&f=false
(8) Does a court have to prove Assent?
James Bowes believes that a court must provide evidence, primarily that the Entrenched Provisions have not been altered, which he thinks relieves him of any obligation to legislation passed under the Constitution of Queensland 2001. As you can note, the court partly relied on Judicial Notice when this contention was raised in Lade and Company Pty Ltd v Finlay & Anor; Lade v Franks & Anor  QSC 382: 1
“Secondly, I am required to take judicial notice of Acts of Parliament and assume the accuracy of copies of such Acts: s 43 and 46A of the Evidence Act 1977 (Qld). So, without evidence to the contrary, I am not concerned with the question of whether the constitutional requirements relating to the valid passing of any Act of Parliament have been complied with.”
Judicial Notice exists in the provisions of every State, and there is also an identical provision in Commonwealth legislation that is extended to all courts in Australia, in Section 143 of the Evidence Act 1995 (Cth) which states:
Part 4.2—Judicial notice – 143 Matters of law 2
(1) Proof is not required about the provisions and coming into operation (in whole or in part) of:
(a) an Act, a State Act, an Act or Ordinance of a Territory or an Imperial Act in force in Australia; or
(b) a regulation, rule or by‑law made, or purporting to be made, under such an Act or Ordinance; or
(c) a Proclamation or order of the Governor‑General, the Governor of a State or the Administrator or Executive of a Territory made, or purporting to be made, under such an Act or Ordinance; or
(d) an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever name called).
(2) A judge may inform himself or herself about those matters in any way that the judge thinks fit.
(3) A reference in this section to an Act, being an Act of an Australian Parliament, includes a reference to a private Act passed by that Parliament.
Note: Section 5 extends the operation of this provision to proceedings in all Australian courts.
“Where any Act or law requires a court to take judicial notice of the seal or signature of any court, person or body corporate appearing on a document and a reproduction of that document is, pursuant to this part, admitted in evidence in a proceeding, the court shall take judicial notice of the image of the seal or signature on the reproduction to the same extent as it would be required to take judicial notice of the seal or signature on the document.”
Relevant provisions in other States:
- Victoria: Section 143 of the Evidence Act 2008 (Vic) 7
- New South Wales: Section 143 of the Evidence Act 1995 (NSW) 8
- South Australia: Section 35 of the Evidence Act 1929 (SA) 9
- Western Australia: Section 53 of the Evidence Act 1906 (WA) 10
- Northern Territory: Section 143 of the Evidence National Uniform Legislation Act 2011 (NT) 11
- Tasmania: Section 143 of the Evidence Act 2001 (Tas) 12
- 1 https://jade.io/article/205056
- 2 http://classic.austlii.edu.au/au/legis/cth/consol_act/ea199580/s143.html
- 3 http://classic.austlii.edu.au/au/legis/cth/consol_act/ea199580/s150.html
- 4 http://classic.austlii.edu.au/au/legis/cth/consol_act/ea199580/s153.html
- 5 http://classic.austlii.edu.au/au/legis/cth/consol_act/ea199580/s5.html
- 6 http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/ea197780/s123.html
- 7 https://jade.io/article/281889/section/2048
- 8 http://classic.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s143.html
- 9 http://classic.austlii.edu.au/au/legis/sa/consol_act/ea192980/s35.html
- 10 http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/wa/consol_act/ea190680/s53.html
- 11 https://legislation.nt.gov.au/en/Bills/Evidence-National-Uniform-Legislation-Bill-2011?format=assented
- 12 http://classic.austlii.edu.au/au/legis/tas/consol_act/ea200180/s143.html
(9) The burden of proof
James Bowes has often stated that a court must prove that the legislation relied on has followed all parliamentary procedures and assent requirements, and that the burden of proof lies with the court and prosecution to establish this when it is requested. In typical OPCA form, his strategy is to ask if the judge is acting under his oaths according to the Oaths Act 1867 (Qld) 1 implying that he must act in a certain manner in support of the Protestant faith, as those oaths are to the Queen, who is Protestant, as already covered earlier in this article. He also wants to agitate an argument regarding the Entrenched Provisions, and wants the court to prove these requirements have been followed in enacting the legislation he is being charged under.
Unfortunately, neither the court nor the prosecution have any obligation to answer questions that do not relate directly to the cause of action or the elements of the offence, as found in Fekete v Child Support Registrar  FamCAFC 14 (from 13): 2
“His Honour asked the Applicant, “What are the notices to produce about?” The following exchange occurred:
MR [FEKETE]: The notices to produce were for the applicant to prove the validity of the Child Support Act – a certified copy of the proclamation. She was – – –
HIS HONOUR: Sir, it’s been to the High Court. Been dealt with. You’re not engaging me in that circus. The High Court has already authoritatively ruled on the validity of the Child Support legislation.
MR [FEKETE]: Your Honour, I’ve asked for the proof that that Child Support Act is validated.
HIS HONOUR: Go and get it yourself, sir. The High Court has dealt with it. So I will be striking out the notices to produce. I will be fixing it for hearing. How long does it need?
In pointing out that the High Court has upheld the validity of the Child Support legislation, no doubt his Honour was referring to the Court’s decision in Luton v Lessels (2002) 210 CLR 333. 3
MR [FEKETE]: Fine. Why is it that I’m not allowed to have proof of the Act they’re relying on?
HIS HONOUR: Sir, go and get it.
MR [FEKETE]: It’s not up to me to provide that proof. It’s up – – –
HIS HONOUR: Sir – – –
MR [FEKETE]: – – – to them. They’re – – –
HIS HONOUR: – – – yes, it is. You want to put it into issue you produce evidence that contra-agitates against its validity, because I can assure you I’ve read the High Court’s decisions about it, I’ve read the relevant government gazettes. The Act is in force and operation. That issue has already been dealt with by the High Court. You should go and find that case and read it.
MR [FEKETE]: There’s no proclamation certificate to show the validity of it.
HIS HONOUR: Sir, I’m not entertaining the issue any further. It’s dealt with by the High Court.…
The well-known proposition that the burden of proof falls on the person asserting the claim does not help the Applicant because that relates to the burden of proving the elements of the offence or the cause of action and not the law itself.
Rule 15A.17 of the FCC Rules provides: Notice to produce
(1)A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.
(2)Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.
As the Respondent correctly pointed out, there is no evidence that any of the documents were at any time in the possession, custody or control of the Respondent. The obligation to produce is limited to such documents. There is no evidence that the offices of “Secretary of the State of New South Wales” or the “Secretary of the Commonwealth of Australia” exist or that they have power to certify copies of proclamation certificates. 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 or that the Federal Court Act had any relevance.”
(10) UN Swissindo and UN&ICG
Finally, I’d like to touch on the subject of confirmation bias and general gullibility. James Bowes has repetitively made the claim that his friend “His Royal Highness” Ambassador Bishop Chris Kember is:
“…not only the Australian Ambassador to the International Human Rights Commission and the European Union, but the World Chairman of the United Nations International Commercial Guard.”
“Chris Kember was appointed at the 2014 Geneva Convention…” he said.
“United Nations & International Commercial Group (UN&ICG), 1 United Nations World Rehabilitation Organisation (UNWRO) 2 and United Nations Global Financial Fund Switzerland (UNGFFS) 3 are UN sanctioned groups…” he said.
“This SPMUDA 4 website clearly says “Registered United Nation NGO Branch SPMUDA is registered non-governmental, non-stock and non-partisan NGO for peace, unity and development. It has branches all over 197 countries.” he said.
“Look, they appointed him Ambassador…” he said. 5
Let’s do a search of the actual United Nations website, 6 for James Bowes statements that: “Chris Kember was appointed at the 2014 Geneva Convention…” WHERE? 7 “United Nations & International Commercial Group” is a UN sanctioned group…” WHERE? 8 “SPMUDA is a Registered United Nations NGO Branch…” WHERE? 9 “United Nations World Rehabilitation Organisation” is affiliated to the United Nations…” WHERE? 10 “United Nations Global Financial Fund” is affiliated to the United Nations…” WHERE? 11
A search of the list of all non-governmental organizations in consultative status with the Economic and Social Council of the United Nations, in whatever capacity, on the Economic and Social Council (ECOSOC) website, 12 also returns no results for the organizations mentioned above.
So ultimately, James Bowes blindly believes they are associated with the United Nations because they claim they are? He cannot provide any evidence to support these claims from the United Nations themselves. It is obvious to those with any sense of critical thought that this “United Nations & International Commercial Group” (UN&ICG) is actually a private organization and has absolutely no affiliation to the real “United Nations”.
This following description on the United Nations Global Financial Fund Switzerland (UNGFFS) 13 website seems to clear up any confusion, and also has many OPCA implications:
Out of these delusions of grandeur and into reality, it is easily established that Australia’s Permanent Representative and Ambassador to the United Nations is Mr. Mitch Fifield, 14 Australian Ambassador to the European Union, NATO, Belgium and Luxembourg is Mr.Justin Brown, 15 and Australia’s Human Rights Commissioner is Mr. Edward Santow. 16
This belief James Bowes has about Chris Kember is exactly the same as the UN Swissindo 17 claim he made to me on my page years ago, he even posted this photo of a notice by “King of Kings” Sino Soegihartonotonegoro, and told me it was responsible for Pieta Morgan 18 being granted bail.
- 1 https://www.linkedin.com/in/hrh-dr-bishop-chris-kember-24363a74?originalSubdomain=au
- 2 http://www.unwro.org/
- 3 https://spmuda.co/
- 4 http://www.ungffs.org/bbs/?t=L
- 5 https://m.facebook.com/SPMUDAinternational/photos/a.473350912715201/473351229381836/?type=3&source=43&refid=56&hc_location=ufi
- 6 https://www.un.org/en/
- 7 https://search.un.org/results.php?ie=utf8&output=xml_no_dtd&oe=utf8&__utma=114554307.1853020844.1590979744.1590979744.1590979744.1&__utmz=114554307.1590979744.1.1.utmcsr%3Dgoogle%7Cutmccn%3D(organic)%7Cutmcmd%3Dorganic%7Cutmctr%3D(not%20provided)&_ga=GA1.2.1853020844.1590979744&_gid=GA1.2.1127487754.1600245823&query=Chris%20Kember&tpl=un&lang=en&rows=10
- 8 https://search.un.org/results.php?query=UN&ICG&ie=utf8&output=xml_no_dtd&oe=utf8&__utma=114554307.1853020844.1590979744.1590979744.1590979744.1&__utmz=114554307.1590979744.1.1.utmcsr%3Dgoogle%7Cutmccn%3D(organic)%7Cutmcmd%3Dorganic%7Cutmctr%3D(not%20provided)&_ga=GA1.2.1853020844.1590979744&_gid=GA1.2.1127487754.1600245823&lang=en&rows=10&tpl=un
- 9 https://search.un.org/results.php?query=SPMUDA&ie=utf8&output=xml_no_dtd&oe=utf8&__utma=114554307.1853020844.1590979744.1590979744.1590979744.1&__utmz=114554307.1590979744.1.1.utmcsr%3Dgoogle%7Cutmccn%3D(organic)%7Cutmcmd%3Dorganic%7Cutmctr%3D(not%20provided)&_ga=GA1.2.1853020844.1590979744&_gid=GA1.2.1127487754.1600245823&lang=en&rows=10&tpl=un
- 10 https://search.un.org/results.php?query=United%20Nations%20World%20Rehabilitation%20Organisation&ICG&ie=utf8&output=xml_no_dtd&oe=utf8&__utma=114554307.1853020844.1590979744.1590979744.1590979744.1&__utmz=114554307.1590979744.1.1.utmcsr%3Dgoogle%7Cutmccn%3D(organic)%7Cutmcmd%3Dorganic%7Cutmctr%3D(not%20provided)&_ga=GA1.2.1853020844.1590979744&_gid=GA1.2.1127487754.1600245823&lang=en&rows=10&tpl=un
- 11 https://search.un.org/results.php?query=United%20Nations%20Global%20Financial%20Fund&ICG&ie=utf8&output=xml_no_dtd&oe=utf8&__utma=114554307.1853020844.1590979744.1590979744.1590979744.1&__utmz=114554307.1590979744.1.1.utmcsr%3Dgoogle%7Cutmccn%3D(organic)%7Cutmcmd%3Dorganic%7Cutmctr%3D(not%20provided)&_ga=GA1.2.1853020844.1590979744&_gid=GA1.2.1127487754.1600245823&lang=en&rows=10&tpl=un
- 12 https://esango.un.org/civilsociety/displayConsultativeStatusSearch.do?method=search&sessionCheck=false
- 13 http://www.ungffs.org/bbs/?t=L
- 14 https://usa.embassy.gov.au/our-people/ambassador-and-permanent-representative-united-nations-new-york
- 15 https://belgium.embassy.gov.au/bsls/aboutus.html
- 16 https://www.humanrights.unsw.edu.au/node/192
- 17 https://freemandelusion.com/2020/10/02/swissindo/
- 18 https://freemandelusion.com/2020/10/02/pieta-morgan/
In conclusion, there are several aspects I have yet to add to this article for the sake of completion, one is the analysis of Anne Twomey in regard to James Bowes interpretation of her work, and two, a letter from the Governor of Queensland confirming he cannot as the representative of Her Majesty act as “Defender of the Faith” due to that being removed by the Royal Style and Titles Act 1973.
After first seeing this article, James Bowes substantiated my initial comment in this article regarding his tendency to disregard anything inconsistent with his personal beliefs, by posting the following screenshots on his Facebook page, quoting a repealed section from the UK Catholic Relief Act 1829, as if it is a current provision:
His conclusions that Catholic judges are prohibited completely disregards the intention of the enactment:
“And be it Enacted, That it shall be lawful for any of His Majesty’s subjects professing the Roman Catholic religion, to hold, exercise and enjoy all civil and military offices and places of trust or profit under His Majesty, His heirs or successors, and to exercise any other franchise or civil right, except as hereinafter excepted, upon taking and subscribing, at the times and in the manner hereinafter mentioned, the Oath hereinbefore appointed and set forth.“
The full passage that he quoted is:
“Provided also, and be it further Enacted, That nothing herein contained shall extend or be construed to extend to enable any person or persons professing the Roman Catholic religion, to hold or exercise the office of Guardians and Justices of the United Kingdom, or of Regent of the United Kingdom, under whatever name, style or title such office may be constituted; nor to enable any person, otherwise than as he is now by law enabled, to hold or enjoy the office of Lord High Chancellor, Lord Keeper or Lord Commissioner of the Great Seal of Great Britain or Ireland; or the office of Lord Lieutenant, or Lord Deputy, or other Chief Governor or Governors of Ireland, or His Majesty’s High commissioner to the General Assembly of the Church of Scotland.“
While the very next passage in the 1829 UK Act provides:
“And be it Enacted, That every person professing the Roman Catholic religion, who shall after the commencement of this Act be placed, elected or chosen in or to the office of mayor, provost, alderman, recorder, bailiff, town clerk, magistrate, councillor or common councilman, or in or to any office of magistracy or place of trust or employment, relating to the government of any city, corporation, borough, burgh, or district within the United Kingdom of Great Britain and Ireland, shall within One calendar month next before or upon his admission into any of the same respectively, take and subscribe the Oath hereinbefore appointed and set forth, in the presence of such person or persons respectively as by the charters or usages of the said respective cities, corporations, burghs, boroughs or districts, ought to administer the Oath for due execution of the said offices or places respectively.“
Clearly the 1829 UK Act also allows for Catholic magistrates and judges, without even taking into account the subsequent enactments which slowly repealed various sections of the 1829 Act until it was repealed in its entirety. But it seems the cherry-picked word “justices” sufficiently satisfies James Bowes confirmation bias so that the next section can be ignored. The explanation is relatively simple when one researches the positions in the previous section.
Office of Guardians and Justices of the United Kingdom
Office of Regent of the United Kingdom
Office of Lord High Chancellor
Office of Lord Keeper
Office of Lord Commissioner of the Great Seal of Great Britain or Ireland
Office of Lord Lieutenant
Office of Lord Deputy
Office of Chief Governor
Office of Governors of Ireland
Office of His Majesty’s High commissioner to the General Assembly of the Church of Scotland
After the Act of Settlement 1701 established Protestant Succession, it became likely that upon Queen Anne’s death the country would be without a monarch-in-residence. The Regency Act 1705 was passed requiring privy counsellors and other officers, in the event of Anne’s death, to proclaim as her successor the next Protestant in the line of succession to the throne. The seven great Officers of State named in the Act were called “Lords Justices”, who formed a regency. These “Lords Justices” even had the power to give royal assent to bills. Two years later, after the union of Scotland and England, the new Parliament of Great Britain passed the Succession to the Crown Act 1707, reaffirming the above procedure and modifying it slightly.
The second Act passed by the Parliament of Great Britain to deal exclusively with a regency was in 1728, the Regency During the King’s Absence Act 1728 (2 Geo. 2 c. 27). The Act specified that Queen Caroline would act as regent in the absence of her husband King George II rather than the Prince of Wales.
Then came the Minority of Successor to Crown Act 1751 (24 Geo. 2 c. 24).[a] This Act provided that George’s mother, Augusta, Dowager Princess of Wales, would act as regent. The Act also specified that a Council of Regency be put in place to rule alongside Princess Augusta. The Council of Regency was to act as a brake on the regent’s power; some acts of the royal prerogative, such as declarations of war or the signing of peace treaties, would require a majority vote of the council. Parliament again passed a Regency Act to provide for a regent in the event of the King’s death with the Minority of Heir to the Crown Act 1765 (5 Geo. 3 c. 27)[b] which provided that either the King’s wife, Queen Charlotte, or his mother, Augusta, Dowager Princess of Wales, would act as regent. This Act also required the formation of a Council of Regency.
The Regency Bill of 1789 was due to the King’s incapacity through mental illness to perform his duties. In the Care of King During his Illness, etc. Act 1811 (51 Geo. 3 c. 1) the King was again suspended from the personal discharge of the royal functions. The 1811–1820 period is known as the Regency era.
After the Regency Act 1830 (1 Will. 4 c. 2), Parliament passed the Lords Justices Act 1837 (7 Will. 4. & 1 Vict. c. 72, which provided only for Lords Justices, including such people as the Archbishop of Canterbury and the Lord Chief Justice, to take up some of the monarch’s duties and provide for the continuation of government.
Similarly with the Regency Act 1840 (3 & 4 Vict. c. 52) the Regency Act 1910 (10 Edw. 7 & 1 Geo. 5 c. 26), the Regency Act 1937, the Regency Act 1943, and the Regency Act 1953. According to the Regency Acts 1937 to 1953, presently in force, there is provision for the establishment of a regency either on account of the minority of the monarch or of the absolute incapacity of the monarch to discharge the royal functions.
The establishment of a regency carries with it the notion that the sovereign is not fit and able to administer the affairs of his own person, so that he needs a legal guardian. The guardianship of the monarch is provided for by the Regency Act 1937, presently in force.
When the Roman Catholic Relief Act mentions “the office of Guardians and Justices of the United Kingdom, or of Regent of the United Kingdom, under whatever name, style or title such office may be constituted…” it is referring to these positions, the Lords “Justices”, and the legal “Guardian” of the monarch, all of which come under the “Regency”. These offices are all ecclesiastical offices with connections to the Church of England, so the reasons for those professing the Catholic faith being excluded is self evident. However, the position of a magistrate or judge is a civil position, not an ecclesiastical position, so it does not apply.
In fact, these offices are, to this very day, required to take the oaths required by the Regency Act 1937, and cannot discharge any of the royal functions before taking them. The oaths are as follows:
“I swear that I will be faithful and bear true allegiance to [here insert the name of the Sovereign] his heirs and successors according to law. So help me God. I swear that I will truly and faithfully execute the office of Regent, and that I will govern according to law, and will, in all things, to the utmost of my power and ability, consult and maintain the safety, honour, and dignity of [here insert the name of the Sovereign] and the welfare of his people. So help me God. I swear that I will inviolably maintain and preserve in England and in Scotland the Settlement of the true Protestant religion as established by law in England and as established in Scotland by the laws made in Scotland in prosecution of the Claim of Right, and particularly by an Act intituled “An Act for Securing the Protestant Religion and Presbyterian Church Government” and by the Acts passed in the Parliament of both Kingdoms for Union of the two Kingdoms, together with the Government, Worship, Discipline, Rights, and Privileges of the Church of Scotland. So help me God.”
As an ecclesiastical office, this oath clearly includes obligations to the Protestant religion, unlike those oaths relating to civil offices such as that of a magistrate or judge in Queensland, which are obliged by the Oaths Act 1867 (Qld) to take the following oath:
“I A.B. do sincerely promise and swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, as lawful Sovereign of the United Kingdom, Australia, and her other Realms and Territories, and to Her Heirs and Successors, according to law.’; anything in the said Acts of Parliament or in any other statute Act or law notwithstanding.”
This oath replaces any oaths contained in the Catholic Relief Act as clearly stated:
“In every case where but for the passing of this Act it would be necessary for any person to take the oaths commonly called the oaths of allegiance supremacy and abjuration or any of them or the oath prescribed by the Act of Parliament commonly called the Roman Catholic Relief Act 1830 or to make the declaration prescribed by the Act of Parliament passed in the ninth year of the reign of King George IV chapter 17 and whensoever it shall be necessary for any person to take the oath of allegiance it shall be sufficient for such person to take in lieu of the said several oaths and declaration the following oath of allegiance…”
James Bowes then went on to post the Oath contained in the second paragraph as if it still valid and current, completely disregarding the fact the Oaths Act 1867 (Qld) explicitly states it replaces that Oath with the one contained in it:
“…the oath prescribed by the Act of Parliament commonly called the Roman Catholic Relief Act 1830 or to make the declaration prescribed by the Act of Parliament passed in the ninth year of the reign of King George IV chapter 17…”
These changes are further explored in the article The Roman Catholic Relief Acts
But to anyone who notices this article has contained in it references and citations to over 100 different cases in the higher courts in Australia, and relies purely on the ratios held in those cases, the following comment leaves very little doubt about my initial comment in this article regarding his tendency to disregard precedent: