This is an application before the High Court in the United Kingdom by Rodney Culleton and Ors. The stated Orders sought by the applicants are:
- (a) To declare the status of the validity of the Australia Act 1986 (UK) and the status for recognition of the Australia Act 1986 (Cth).
- (b) To declare the validity of a jurisdiction under Queen of Australia within the State of Western Australia.
The main submissions are:
(1) The reliance in points 4 and 5 on Challis’s Real Property , 3rd edition (1911) as defining a title of fee simple for all of eternity is a moot point, considering the State governments are empowered to “make laws for the peace, welfare and good government of the colony in all cases whatsoever.” These words have traditionally been used to confer “the widest legislative powers appropriate to a sovereign”. (See the Privy Council in Ibralebbe v The Queen 1964 AC 900 (at 923) and Union Steamship Co of Australia Pty Ltd v King (1998) HCA 55 (at 9-10). Such words permit the parliaments to pass laws restricting, modifying or even removing the common law rights mentioned. (See Bone v Mothershaw  QCA 120 leave to appeal rejected in Bone v Mothershaw  HCATrans 779)
(2) Point 5 also misunderstands the effect of the title Queen of Australia, and the allegiance owed to the monarch. It has been a principle since the Privy Council decision in Re Stepney Election Petition; Isaacson v Durant(1886) 17 QBD 54 which established the rule that references to “the Crown” do not mean the monarch in a personal capacity, but that of the body politic. Lord Coleridge CJ 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.” The body politic of each State is different, as is the body politic of Australia different from the body politic of the United Kingdom. “The Queen” or “the 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, who by fact of their power to elect representatives in Parliament or change parts of the Constitution, hold the sovereignty. (See Singh v Commonwealth of Australia  HCA 43)
Besides, comparing the change in title to the restrictions on fee simple freedoms is misplaced, considering that these restrictions began long before 1986, when the title first applied to the States. Prior to that it only applied to the Commonwealth, as recognised in Commonwealth v Queensland  HCA 43 (the ‘Queen of Queensland Case’).
(3) Point 6 relies on sections 16, 3 and 23 of the Supreme Court Act 1935, which do absolutely nothing to assist the argument, as they merely relate to the Supreme Court having the same powers as those in England. The assertion that the judges are sitting “coram non judice” is unintelligible, as a superior court has authority conclusively to determine the existence of its own jurisdiction, and an order of a superior court, even if made in excess of jurisdiction, is at most voidable and has effect unless and until it is set aside, as held in Parisienne Basket Shoes Proprietary Limited & Ors v Whyte (1938) HCA 7. The comment “laws of the Commonwealth” also shows a misunderstanding of the division of legislative powers, as this is not a matter under the laws of the Commonwealth but the laws of a State.
(4) Point 7 appears to engage the oaths argument rejected in Balwyn Nominees Pty Ltd v Culleton  FCA 1578, regarding the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), that swearing an oath “to the people of Western Australia” as opposed to the Crown is contrary to law, as also rejected in Glew v Shire of Greenough  WASCA 206 (from 16), Glew v The Governor of Western Australia  WASC 14 (from 48), and Shaw v Jim McGinty in his capacity as Attorney General & Anor  WASCA 231 upholding Shaw v Attorney General for the State of Western Australia & Anor  WASC 149. The “change in terminology is entirely consistent with constitutional reality”, given the definition of allegiance as described in my second point above.
(5) Point 8 and 9 describe a belief that damages arise, and that the United Kingdom is responsible for oversight, when complete independence was achieved in 1986 via the passage of the Australia Acts, and the Commonwealth itself was independent from 1942 with the passage of the Statute of Westminster Adoption Act.
(6) Point 10 describe a belief that the High Court has a responsibility to intervene in Australian matters, contrary to their own decisions. In Fitzgibbon v HM Attorney General  EWHC 114 (Ch) the UK High Court held that the Commonwealth Constitution “…has no significance or consequences in this country … the connection with the United Kingdom is only historical in the sense that the 1900 Act was passed by the legislature here. … As soon as Australia became independent, the 1900 Act ceased to have any effect as an exercise of sovereign power of the United Kingdom, and whatever effect it then and thereafter had was as part of the law of the sovereign state of Australia, into the validity of which this court has no jurisdiction to inquire…” citing Buck v. Attorney General  Ch 745 at 771 per Diplock LJ, and a decision of the Privy Council, R v. Foreign Secretary ex parte Indian Association of Alberta  1 QB 892 at 916G-917D, 921 C-G and 928 A-B.
(7) Point 11 again describes a belief that the Queen is being “denied her rightful title” in Australia, contrary to the principle of the divisibility of the Crown upheld by the Privy Council in R v. Foreign Secretary ex parte Indian Association of Alberta  1 QB 892.
In Fitzgibbon v HM Attorney General  EWHC 114 (Ch) the UK High Court held that: “Even if this court did have jurisdiction, as a matter of international comity it should not entertain this case, for to grant the declarations sought would amount to an unwarranted interference in the affairs of an independent member of the British Commonwealth…” citing Buck v. Attorney General  Ch 745 at 768F-G per Harman LJ and 770H per Diplock LJ.
(8) Regarding the Coronation Oath, as held in BarrettLennard -v- Bembridge  WASC 353: “None of the Bible, God’s law or the coronation oath overrules the laws made by the Parliament of Western Australia. In England, that has been so since 1688. In what became the State of Western Australia, it has been so since the advent of the Parliament of Western Australia. … Nothing in the coronation oath detracts from the supremacy of Parliament or from the efficacy of laws passed by Parliament..” 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.”
Both cases referred to the principle which was applied in the Privy Council by Lord Reid in British Railway Board v Pickin (1974) AC 765 in which he said (at 782): “In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded insofar as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.”
This passage was also referred to by the High Court in Kable v DPP (NSW)  HCA 24 (Dawson J. at 11-12), also citing Kirby P. in BLF v Minister for Industrial Relations (1986) 7 NSWLR 372 (at 384) who expressed his agreement with Lord Reid: “I agree with Lord Reid‘s conclusion. I do so in recognition of years of unbroken constitutional law and tradition in Australia and, beforehand, in the United Kingdom. That unbroken law and tradition has repeatedly reinforced and ultimately respected the democratic will of the people as expressed in Parliament. It has reflected political realities in our society and the distribution of power within it.”
In Little v State of Victoria  VSCA 113 the applicant contended that the coronation oath impresses upon the Attorneys-General a duty to ensure that none suffer injustice from abuses of judicial power, which was rejected by the court. This decision was later upheld by the High Court in Little v State of Victoria  HCATrans 226. Also in the High Court in An application by Stanbridge  HCATrans 175 it was stated: “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.”
(9) There was nothing explicitly stated in the submissions regarding the Australia Acts 1986 for which a declaration was sought, but I will elaborate on this point. The validity of the Australia Acts were upheld in Attorney-General (WA) v Marquet (2003) HCA 67 and in Shaw v Minister for Immigration and Multicultural Affairs (2003) HCA 72 and accepted as valid in Sue v Hill  HCA 30. It was held by a majority in the first case, and unanimously in the second, that it was sufficient that the Act had been passed in reliance on section 51(xxxviii) of the Constitution, which gives the Commonwealth parliament power to legislate at the request of the State parliaments.
In the United Kingdom, Queen Elizabeth II personally assented to the Australia Act 1986 (UK) on 17 February 1986, and on 24 February 1986 she proclaimed that the Australia Act 1986 (UK) would come into force at 0500 Greenwich Mean Time on 3 March. It was passed in the United Kingdom as part of the laws of the United Kingdom. On this point, I must again refer to the decision of the Privy Council in British Railway Board v Pickin (1974) AC 765 in which Lord Reid said: “When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the Courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the statute book at all.” Therefore, “the status of the validity of the Australia Act 1986 (UK) and the status for recognition of the Australia Act 1986 (Cth).” is a certainty, and cannot be challenged by the courts of the United Kingdom.