Lacey v Earle [2014] ACTSC 397

In Lacey v Earle [2014] ACTSC 397, the appellant was convicted of driving offences, including using an unregistered and uninsured vehicle, exceeding the speed limit, and failing to provide her name. She challenged the jurisdiction of the courts to deal with the offences on the basis that she is an Aboriginal person over whom the courts of Australia could exercise no jurisdiction. She relied on a document entitled Notice of Rebuttal and Claim of Right, that closely resembles the indicia that Mark McMurtrie espouses.

The arguments contended the forcible settlement by the British of Aboriginal land and the absence of a treaty between the British settlers and Aboriginal peoples means that there is no power in the Commonwealth to make laws for Aboriginal peoples, that the Pacific Islanders Protection Act 1872 was designed to protect the sovereignty of tribes in the Pacific Ocean, including the Aboriginal people, that was never effectively repealed, that Aboriginal peoples are not recognised by the Commonwealth Constitution and therefore should not be subject to “corporate Crown law”, and that the Australian government is a corporation registered with the United States Securities and Exchange Commission, and it therefore had no power to deal with the appellant, who is, “not a corporation but a human being”.

The court noted that in R v Buzzacott (2004) 149 A Crim R 320 there was a similar challenge to jurisdiction, in which the relevant decisions of the High Court, including Coe v Commonwealth (1993) 68 ALJR 110Mabo v Queensland (No 2) (1992) 175 CLR 1 and Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767.were referred to. At 325, his Honour concluded:

Whatever argument the accused may have as to whether or not the conduct of the policy towards Aboriginal Australians by successive governments, Commonwealth, State or Territory, amounts to genocide, whether as understood under international law or as established now as a domestic offence under a law of the Commonwealth, this Court cannot bring into question the basic principle of law underlying its own existence that there is but one sovereignty over the geographic entity of Australia and that the exercise of that sovereignty is governed by the Constitution of Australia, so that in the case of an offence allegedly committed within the Australian Capital Territory, this court has jurisdiction to try the case no matter what the racial or ethnic origin of the accused.

The court also referred to another recent decision, of the Queensland Court of Appeal, R v Anning [2013] QCA 263 which considered a document entitled Notice of Rebuttal of Claim to Title to Land and Claim of Right, which resembled the applicants document. In Anning, the appellant asserted that the state of Queensland had no power to legislate in respect of the Yidindji tribe and that, as a Yidindji tribal man, the appellant was not subject to Queensland laws. The court relied on the previously cited decisions and Coe v Commonwealth of Australia (1979) 24 ALR 118 and Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 in which Gleeson CJ, Gummow and Hayne JJ said at 443–4:

But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law‑making system in the territory over which it asserted sovereignty.  To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible.

The court concluded:

“Courts at all levels have held that the Commonwealth and the states and territories have power to enact laws in relation to all the people of Australia, including Aboriginal peoples, and that the arguments to which the appellant refers in her notice of rebuttal and which she raised before Magistrate Dingwall are unmeritorious. For these reasons, the appeal is dismissed.”

Click to access lacey-v-earle-2014-actsc-397.pdf

Lacey v Yates [2014] ACTSC 398 was the second appeal by Ms Lacey against orders of the Magistrates Court that was listed before the court that morning.  The arguments were identical to those in the matter of Lacey v Earle, and likewise unmeritorious, contending that the courts lack jurisdiction to deal with Aboriginal people such as herself. The appeal was likewise dismissed.

Click to access lacey-v-yates-2014-actsc-398.pdf