Joosse v Coadys ( A firm) M117/1998 [2000] HCATrans 208 (2 May 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M117 of 1998

B e t w e e n -

WOLTER JOOSSE

Applicant

and

COADYS (A firm)

Respondent

Application for removal

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 2 MAY 2000, AT 9.31 AM

Copyright in the High Court of Australia

MS H. MASTOS: Your Honour, I appear for the respondent in this matter. (instructed by Coadys)

MR W. JOOSSE: Your Honour I am the applicant.

HIS HONOUR: Now, it is your application, is it not, Mr Joosse?

MR JOOSSE: It is indeed, your Honour.

HIS HONOUR: You are, I take it, familiar with what I said in the matter of Helljay v Deputy Commissioner of Taxation, are you, Mr Joosse?

MR JOOSSE: Indeed.

HIS HONOUR: What, then, is it that you want to say in support of your application?

MR JOOSSE: Firstly, your Honour, the last time I appeared before you on a similar notice of motion on the section 40 of the Judiciary Act 1919 in December 1998, you advised the Court that you had a duty to defend the current system. Hereby you implied that you could not be impartial and thus not only violated your oath of office but also violated my rights under Commonwealth and international law. Those rights, your Honour, are inviolable and are protected by virtue of the Statute of Monopoly 1623, the Habeas Corpus Act 1640, which is the law of the Commonwealth by virtue of the States Imperial Acts Application Acts and section 118 of the Australian Constitution which states that justices have no power to dispense with the law.

It was also in violation of the universal Declaration of Human Rights 1945, Articles 10, and the duty of justices of independence - that states that the duty of justices is to be independent and impartial and, as such, it is my submission that your ruling therefore is null and void. I seek that you, on the grounds of that, disqualify yourself from hearing this proceeding.

HIS HONOUR: Yes. Is there anything else you want to say in support of that application? As you will have seen from the decision in Helljay, a broadly similar, though differently expressed, application was made there. Is there anything further that you would wish to say in support of it?

MR JOOSSE: I certainly would, your Honour. As your Honour is well aware, in Helljay it was agitated that you had ruled on a matter of fact. The argument was, if you had ruled on a matter of fact or on the matter law. It is my submission that you have, by voicing that you had a duty to defend the current system, you voiced that you could no longer be impartial. And under international law I have the right to be heard by an independent tribunal established by law.

However, I would like to continue on this because since this notice of motion was lodged with the High Court a lot of things have happened and a lot of very important decisions have been made by the High Court of Australia. In particular, the decision in Sue v Hill. In this decision, as your Honour is aware, it was the opinion of the Court that the United Kingdom is a foreign power and that Australia is a fully independent sovereign nation. Now, it is my submission, sir, that at the moment we became independent there must be a change of sovereignty. That seems to imply that the Constitution by which we are being governed becomes null and void. Since the High Court is constituted under this Constitution, it has a vested interest in the outcome of this proceeding.

Therefore I seek that this Court adjourns and seek application to the Attorney-General of the Commonwealth of Australia to file this matter with the International Court of Justice who is empowered to hear these proceedings by virtue of the Statute of the International Court of Justice, Articles 34 to 36, and already has ipso facto jurisdiction given to it by the Commonwealth of Australia. This ipso facto jurisdiction is without any conditions thereto and therefore that appears to be the only independent tribunal established by law because, after the decision of Sue v Hill, it becomes arguable if, indeed, this Court can claim to be established by law.

HIS HONOUR: Yes, is there anything else you wish to say?

MR JOOSSE: I have a lot more to say and I would like to say a lot more but my immediate submission is that the Court adjourns and seek application from the Attorney-General.

HIS HONOUR: Yes. As I understand it, you also ask that I not determine the current application. So there are, as I understand it, two matters that you are asking me to do. One, that I should not sit; second, that the Court should adjourn for the reason you have just given. Do I understand what you are asking me to do?

MR JOOSSE: Yes. In the first instance, that is what I am asking your Honour.

HIS HONOUR: Yes. Is there anything else you wish to say in support of either of those applications?

MR JOOSSE: On the application of the second issue, that this Court - the validity of this Court is in doubt due to the question mark that now hangs over the Constitution, I actually have prepared a submission that I would like to present, but I personally believe that this is not the forum because, as your Honour understands, it cannot possibly rule on its own existence. In fact, it would be contrary to the Dr Bollen's Case of 1610 which stated that an authority cannot judge into its own course.

HIS HONOUR: Yes. At the moment, Mr Joosse, I am minded to deal first, and separately, with your application that I should not sit. Where we would go from there will depend upon the outcome of that application. Confining yourself for the moment to that first application, that is the application that I not sit, is there anything further you wish to say in support of it?

MR JOOSSE: Yes. I would like to say something further to that, indeed, sir. In your decision, you started to say that because there was not enough known about the individual cases that, in your Honour's opinion, was sufficient to fell the application. However, the application was made on the grounds that we question the validity of the Magistrates Court Act and we raise several matters relating to international treaties and matters that fall under the Constitution. These matters that we brought to the Court were not matters relating to the issues involved in the individual case and, therefore, your statement that that was sufficient to fell the application seems to verify your statement that you felt you had a duty to defend the current system.

HIS HONOUR: You have referred a number of times to that statement. Could you point me, please, to where, in the decision - - -

MR JOOSSE: Your Honour, I am very much aware that it was not in the transcript, but there were an awful lot of people in the Court at the time and the statement agitated me to no extent at the time.

HIS HONOUR: I am sorry, Mr Joosse, can I just understand what you are saying, for it is quite important. What is it that you are saying? Are you saying that something was said that is not recorded or what?

MR JOOSSE: I am saying, sir, that you said in the court at the time that you had a duty to defend the current system.

HIS HONOUR: Can you take me, please, to the record - - -

MR JOOSSE: Your Honour, it - - -

HIS HONOUR: Just a moment, Mr Joosse, let me finish. Would you be good enough, please, to point out to me where in the record this statement is to be found which you attribute to me.

MR JOOSSE: Your Honour, it is actually on the website itself. It even illustrates that the transcript is subject to edit.

HIS HONOUR: Yes.

MR JOOSSE: I still remain firm that this is what you said. But if I may go on, you also said that international law, because it is not into statute, does therefore not come into the courts of Australia. Now, by that ruling, you overruled the Full Bench of the High Court who 10 months earlier had ruled that international law prevails over domestic law. You had also overruled Parliament who had passed two Acts, namely the Treaty of Peace Act and the Charter of the United Nations Act 1945 , which specifically brought international law into the courts. You also ruled that section 5 of the Constitution was valid. I do not need to illustrate to your Honour that section 5 does not fall under the Constitution but is, indeed, an Act of what we presume to be a foreign power today. It would be in contravention of international law to have the laws of a foreign country to be applied in a sovereign independent nation, if indeed we are.

So, as I have illustrated to your Honour, there has been several statements made by you, including one where you said that the points agitated before the courts were unarguable. In my submission, I put it to you, sir, that for an argument you need two parties and the applicant had already put their argument before the Court. It appeared to me that if they were unarguable, it appeared that the Court had no answers to responding to these arguments. But it was implied that the argument had no merit. I put it to you, sir, that all the arguments that were put before the Court were backed with factual proof. They were not mere opinion.

HIS HONOUR: Yes.

MR JOOSSE: It is my humble submission to you, sir, that I feel that at the time I was not given a fair hearing and that I feel that you cannot be impartial on what has taken place.

HIS HONOUR: Yes. Is there anything else you wish to say?

MR JOOSSE: On this very matter?

HIS HONOUR: On this issue?

MR JOOSSE: No. On this issue, I think I have said enough, sir.

HIS HONOUR: Thank you, Mr Joosse. Ms Mastos, subject to anything you say, it seems to me that this immediate question of my disqualification or not is not an issue on which you would have any interest or standing to be heard. But do you seek to say anything about it?

MS MASTOS: Only, your Honour, that it appears to me that Mr Joosse appears to be fixated on the first application that he made some years ago which - - -

HIS HONOUR: Whether or not that is so, do you say that you have any basis on which, as the opposing party, you should be heard on whether I should hear, or not hear, Mr Joosse's application?

MS MASTOS: No, your Honour. I will abide by the Court's decision.

HIS HONOUR: Thank you.

This is the return of a notice of motion by Wolter Joosse seeking orders that part of a cause pending in the Magistrates Court of Victoria at Melbourne be removed into this Court pursuant to section 40 of the Judiciary Act 1903 (Cth). The basis of the application for removal is that there are questions arising under the Constitution, or involving its interpretation, and the contentions which it is sought to agitate in support of the application for removal are contentions concerning the effect of certain international arrangements upon the constitutional arrangements in this country. Put broadly, and necessarily therefore inaccurately, it is said that by reason of certain international arrangements which have been made, the Magistrates Court Act 1989 (Vic), the County Court Act 1958 (Vic), the Supreme Court Act 1986 (Vic), as well also as what are described as "the rules of tort, contract, negligence and damages as arising from the common law of the United Kingdom as affects Australia" and "the power magistrates purportedly have under laws in Australia as officers of the Crown" are either invalid or of no present effect.

But questions of a similar kind were agitated in another proceeding to which Mr Joosse was party and which led to my judgment in Joosse v ASIC [1998] HCA 77; (1998) 159 ALR 260 and were also agitated in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302 which I heard and determined in 1999. Mr Joosse now applies for me to disqualify myself from determining the application for removal. He has foreshadowed a further application that the Court should adjourn the application pending the Attorney-General for the Commonwealth being invited to submit a question for determination by the International Court of Justice.

For the moment, I confine my attention to the application that I not continue with the hearing of the application, that application for disqualification being founded on the contention that I will not bring an impartial mind to bear upon it. In the course of his oral submissions in support of his application that I disqualify myself Mr Joosse referred to what he understood to have been said in the course of argument in the earlier proceedings to which he was party. He contended that, in the course of those proceedings, I had expressed a view that I was, in effect, duty bound to "defend the current system". Mr Joosse did not, despite my invitation to do so, direct my attention to any passage of transcript or portion of reasons for judgment expressed in these terms and I put it to one side. His argument in support of his application depended upon assertions to the general effect that it would not be possible for him to have his application determined by an impartial tribunal were I to continue to deal with it rather than upon identified statements made on earlier occasions.

The principles concerning what has come to be called shortly, if not wholly accurately, the "appearance of bias" by judicial officers are, as I said in Helljay [1999] HCA 56; 166 ALR 302 at 306 to 307, well established. What must be demonstrated to the requisite degree is the appearance of prejudgment, not simply that a particular outcome of litigation is likely, or unlikely. As I said also in Helljay [1999] HCA 56; 166 ALR 302 at 307:

The principles about apprehension of bias must be understood in the context of a judicial system founded in precedent and directed to establishing, and maintaining, consistency of judicial decision so that like cases are treated alike and principles of law are applied uniformly. The bare fact that a judicial officer has earlier expressed an opinion on questions of law will therefore seldom, if ever, warrant a conclusion of appearance of bias, no matter how important that opinion may have been to the disposition of the past case or how important it may be to the outcome of the instant case. Fidelity to precedent and consistency may make it very likely that the same opinion about a question of law will be expressed in both cases. But that stops well short of saying that the judicial officer will not listen to and properly consider arguments against the earlier holding.

As was said by this Court in Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554, the fair and unprejudiced mind which must be brought to bear upon the determination of litigation is:

not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.

The question is whether the judicial officer concerned will listen to, consider and weigh whatever arguments are advanced in circumstances of the present kind arguments which tend against opinions earlier expressed or held.

The issues which it is sought to agitate in the present application for removal are issues which in large part, if not entirely, depend upon conclusions of law rather than of fact. I have, both in Joosse v ASIC and in Helljay Investments v Deputy Commissioner of Taxation previously expressed concluded views about those questions of law. I am, nevertheless, ready and willing to listen to any further argument that may be advanced against the views there expressed and to weigh them in determining the outcome of the present application for removal. In the circumstances, I do not think it right to conclude that I should not continue to hear the application. As Justice Mason said in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352:

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey [1983] HCA 17; (1983) 151 CLR 288 has led to an increase in the frequency of application s by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out b showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554;l Watson (1976) 136 CLR 248 at 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14; 32 ALR 47 at 50-51.

The application that I disqualify myself is therefore refused.

Now, Mr Joosse, you had foreshadowed an application that the Court should adjourn to allow application to the International Court of Justice. Do you seek to add anything in relation to that application?

MR JOOSSE: Yes, I do indeed, your Honour. By virtue of the decision in Sue v Hill, it must be evident that this great myth of evolution must have come to an end, and I quite clearly state "myth", because every expert on international and constitutional law, outside the Commonwealth, says quite the contrary, that is to say that the change to independent is instant. You either have it or you have not, and certainly not obtained by evolution or over a period of time. So, therefore, it must be established that the evolution has come to an end.

It is remarkable that this Court, being the highest legal Court in the country, cannot establish when or where it actually occurred. But one thing is for certain is that at independence, and there has been a vast number of examples over the last two decades, there has been a record number of countries gaining independence, a very established principle of positivi juris comes into effect. This international principle originally related to territory only, but since the break-up of the USSR, the unification of West and East Germany, the breaking up of the Balkan States and many other countries, there has been an extension, and the extension is that when there is a break of sovereignty there must be a clear break in the legal system because the legal system, the Constitution by which the countries were ruled prior to independence were contracts now of a foreign power. There must be, at the moment of succession, a brand new legal entity, a brand new nation comes into the world and that nation, where the sovereignty transfers to the people of that newly formed independent nation, has the right to determine its own contract.

HIS HONOUR: Does it follow from the argument which you are advancing that, for the moment, there is no legal system in this country?

MR JOOSSE: No, that is quite incorrect, sir. There is a legal system. It is just that the Constitution that we are applying cannot possibly be valid. I have prepared a submission relating to those issues but I still submit to you, sir, that because of the doubt, the huge doubt that exists around the validity of this Constitution, that this Court is not the venue that can impartially deal with it. In fact, the law specifically prohibits it to judge in its own cause. There is an alternative available and it is the International Court of Justice.

HIS HONOUR: To which States are party but not individuals.

MR JOOSSE: That is correct, and this is why I seek that this Court applies to the Attorney-General to move this matter - which is of utmost importance to all the peoples within Australia.

HIS HONOUR: And what issue do you say would be submitted to the ICJ?

MR JOOSSE: The validity of the Constitution which are, and will remain, Acts of the British Parliament.

HIS HONOUR: Yes.

MR JOOSSE: It is a Constitution which is a contract which was legislated and passed by the Parliament of what we call now a foreign power, namely the British Parliament, for British subjects residing in Australia at the time, namely 1900. There is no contract in place for Australian subjects. In my submission, if the Court refuses to take my submission to seek removal to the International Court, this very Court has held on numerous occasions that a Constitution is a very rigid document, it must be robust, it must be able to withstand time. The Australian Constitution Act is also such document. It can withstand changes that occur over years because we have the ability under section 128 to make changes to the Constitution. There is, however, one change that it cannot withstand and that is the change of succession or independence because it cannot possibly legally change the sovereign that is defined in the Constitution.

Now, there has been a ruling of this Court only very recent that the Constitution cannot be altered to suit the means, it must be construed and be taken as the makers intended it to be and this Constitution was to be, at all times, subordinate to the Parliament of the United Kingdom. It was never a Constitution for succession, for independence. It is not a sovereign document in its own right. It is, and remains at all times, section 9 of an Act to constitute the Commonwealth of Australia, an Act which is now an Act of a foreign power.

HIS HONOUR: Yes. Yes, is there anything you wish to add?

MR JOOSSE: If your Honour wants to go, I might as well go on all the way.

HIS HONOUR: No, no, Mr Joosse. You are making an application. I am asking you whether you wish to support it. If you wish to support it, I will hear you, within limits. But I will hear what you have to say.

MR JOOSSE: Thank you very much, your Honour, I will continue then. I hope your Honour excuse me that I actually read most of this because - - -

HIS HONOUR: Yes, if you just make such points as you wish to make, Mr Joosse.

MR JOOSSE: Thank you, sir. Sir, one can only wonder why there is such a discrepancy in advice between experts here in Australia and experts outside the Commonwealth. In Sue v Hill Justice Callinan stated the following:

The evolutionary theory is, with respect, a theory to be regarded with great caution. In propounding it, neither the petitioners nor the Commonwealth identify a date upon which the evolution became complete, in the sense that, as and from it, the United Kingdom was a foreign power. Nor could they point to any statute, historical occurrence or event which necessarily concluded the process. There were, they asserted, a series of milestones, for example, Federation itself, the Statute of Westminster Adoption Act 1942 (Cth), the Royal Style and Titles Act 1973 (Cth) and the Australia Acts but neither the last of these nor any other enactment was said to be the destination marker of the evolution.

The great concern about an evolutionary theory of this kind is the doubt to which it gives rise with respect to peoples' rights, status and obligations as this case shows. The truth is that the defining event in practice will, and can only be a decision of this Court ruling that the evolutionary process is complete, and here, as the petitioners and the Commonwealth accept, has been complete for some unascertained and unascertainable time in the past. In reality, a decision of this Court upon that basis would change the law by holding that, notwithstanding that the Constitution did not treat the United Kingdom as a foreign power at Federation and for some time thereafter, it may and should do so now.

Your Honour, of course the Constitution can never regard the United Kingdom as a foreign power because it is actually an Act of the Parliament of that foreign power and it was written for British subjects. Therefore the document can never look towards the Constitution - or the Constitution can never look towards the United Kingdom as a foreign power. But the very reverse is the most likely scenario, that the Constitution must look towards Australia and Australians as a foreign power and a foreign legal entity. Your Honour, therefore, if the United Kingdom is a foreign power - and I wish to stress "if" because there are arguments that can be raised to the contrary - then this evolutionary process must have come to conclusion. If so, then sovereignty must have changed and this Court has already held that sovereignty has changed and now lies with the people of Australia. However, a new sovereign, the people of Australia, were never advised at any time that all powers vested under the Constitution now belong to them. However, these powers lie and remain still today with the Crown of the sovereignty in the United Kingdom by virtue of section 2 of the Australian Constitution Act 1900 (UK).

Your Honour must agree that without informed consent and compliance with section 128 of the Constitution it cannot be seriously argued that sovereignty has evolved upon the people of Australia by operation of law for, indeed, the people of Australia handed back those powers without anyone knowing that this occurred. Indeed, in the referendum on this issue last November the people of Australia clearly indicated that they are not prepared to assume sovereignty in their own right, not without be fully informed and not with safeguards in place. A Constitution of a country is a contract and foundation upon which all law is built. The Australian Constitution is section 9 of the British Act created for British subject that resided in Australia at the time. It is and remains a British Act and can only be revoked and amended by the people of Australia agreeing, at referendum, to suspend the application of the Commonwealth Constitution Act 1900 and readopt the Constitution in its own right. There is no contract in place to transfer sovereignty from the Queen in the sovereignty of the United Kingdom to the people of Australia. A Constitution is, and must be, a very rigid document, a view already expressed by this Court, and I refer to the decision in Wakim of 17 June 1999 in which it was stated by Justice Gaudron:

However, the judiciary has no power to amend or modernise the Constitution to give effect to what the judges think is in the public interest. The function of the judiciary, including the function of this Court, is to give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention. That necessarily means that decisions, taken almost a century ago by people long dead, bind the people of Australia today even in cases where most people agree that those decisions are out of touch with the present needs of Australian society.

Justice Gaudron also stated that:

The starting point for a principled interpretation of the Constitution is the search for the intention of its makers.

Justice Windeyer in Ex parte Professional Engineers' Association stated this that:

in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We re not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.

In the same case your Honour said the following:

A federal constitution must be rigid. The government it establishes must be one of defined powers; within those powers it must be paramount, but it must be incompetent to go beyond them.

Justice Kirby said the following:

constitutions and the laws affording self-government to the mainland Territories are unchanged. ..... The Australian Constitution stands unaltered, resistant to formal change. No relevant change has been proposed to it. .....But the outcome demonstrates, with a starkness that I cannot remember in any previous decision of this Court, how an "accident of the Court's constitution" can profoundly change, in a very short interval, the outcome of an important constitutional controversy. That controversy is significant to the present parties. But it is also one of great importance for the nine governments and Parliaments of the Australian federation. Their collective voice was heard in this Court, in unique harmony, to urge that the constitutional status quo, achieved after the Court's earlier decision, be maintained.

He went on to say:

Sometimes the "terms and structure of the Constitution" require an outcome which is unwelcome to governments and Parliaments. Such outcomes may be criticised at the time as based upon an unduly rigid view of the Constitution, only to be vindicated later.

The Australian Constitution was a contract, or rather a subcontract, between the sovereign of the Parliament in the United Kingdom and the British subjects that resided in Australia at the time. It was never a document for independence, or succession as claimed by some, but always constitutionally subordinate to the Crown of the United Kingdom and Parliament of the United Kingdom. To illustrate the maker's intention I refer to the Annotated Constitution of the Australian Commonwealth. The author is Dr Quick and Garran, written in 1901. The quote is taken from page 367:

Imperial Relationship. By the preamble the Commonwealth is declared to be "Under the Crown;" it is constitutionally a subordinate, and not an independent Sovereign community, or state.

Now, your Honour, I must point out it says it very clearly. The intentions were for a - it was not a Constitution for independence. It does not contain any rights for the people. Those rights were contained under British law. Section 8 of the Australian Constitution further states clearly:

the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.

Now, if we assume that we cannot change what we are reading, and we have to take it in the spirit or in the context when it was written, and there is no doubt that this is not a Constitution for an independent sovereign nation, this is a Constitution for a sole governing colony. Your Honour, from what has been presented before this Court so far it is absolutely clear that the following statements cannot be possibly supported in law. These are just a couple of numerous statements that are being thrown about. This is from Adele Burn from the Office of Attorney-Generals - - -

HIS HONOUR: I doubt that I am going to much assisted by commentary of that kind, Mr Joosse.

MR JOOSSE: I shall skip that then, sir. May I then just - the Solicitor-General for South Australia prepared a discussion paper prior to the referendum. May I quote something that he - - -

HIS HONOUR: If it bears on these issues, yes.

MR JOOSSE: It certainly does, sir. He says, "It is now clear that Her Majesty the Queen of Australia is a separate legal body from Her Majesty the Queen of the United Kingdom. By virtue of the Australia Act 1903 and the fact of Australia's independence, the Commonwealth Constitution effectively has been rewritten and `Queen of Australia' inserted wherever `Queen of the United Kingdom' appears." Now, by the virtue of what I have quoted coming out of the High Court, that cannot possibly legally happen.

Your Honour, our present Constitution of the States and the Commonwealth are inconsistent with law in that they do not make express provisions for the sovereignty to be invested in the people of Australia as prescribed by international law when a nation is granted independence. The Constitution is inconsistent with the following international treaties and conventions and must be judged to be ultra vires: the United Nations

Charter, Articles 2.1 and 2.4 and Article 73; the Universal Declaration of Human Rights, Article 21; Declaration of Granting of Independence of Colonial Countries and Peoples, Articles 1, 2, 5 and 7, just to name a few. Your Honour, all those who tried to defend the current system have absolutely noting that supports them, either under domestic or under international law. They totally and utterly must rely on assumptive law.

HIS HONOUR: Sorry, rely on?

MR JOOSSE: Assumptive law.

HIS HONOUR: Yes.

MR JOOSSE: It appears we must assume that the Constitution is legally ours and we must assume that the Queen of Australia is the Queen referred to in the Constitution. Assumptive law works only due to the fact that the people of Australia were totally held ignorant of their sovereign rights which they obtained at independence. At the time of independence, which happened a lot earlier than anyone wishes to acknowledge, our politicians grabbed, however, the sovereign power for themselves before the people of Australia even knew that it belonged to them.

The myth of representative government flies out of the window by virtue of the illegal and forced adoption of party line voting within Parliaments of the States and the Commonwealth. The people of Australia are becoming very rapidly aware of their rights and can no longer be governed by assumptive law. Over the decades our Parliaments have consistently passed legislation, irregardless if it was lawful or not. Only too often the legislation violates international law, abrogates the rights of the people or has been in direct conflict with existing laws. No longer can the people of Australia tolerate or accept such legislation and with their gained knowledge, the people of Australia are standing up for their rights. They must now look to their courts and to their judges and magistrates to honour their oath of office and uphold valid law and the people's rights there within.

As a responsible citizen it is my duty to bring this matter for determination and I humbly request that you grant the application and make application to the Attorney-General to move the proceeding for determination in the International Court. Sir, in conclusion, I stress again the Australian Constitution Act 1900 was an Act which was passed by the Parliament of the United Kingdom, which is now declared a foreign power of Parliament. It therefore is foreign legislation. It was prepared for the citizens which were British citizens at the time, British subjects. At the moment of independence there had to be a change of sovereign, which this Court has already acknowledged, but the Constitution that we are using does not recognise that sovereign. It only recognises the sovereign in the sovereignty of the United Kingdom.

If, indeed, Australia is not an imperial sovereign nation and if, indeed, sovereignty has changed to the people, I submit to this Court that legally under international law the people of Australia have the right to enter into their own contract. At the last referendum the people overwhelmingly showed that the document that we are using is not to their liking. There is no power in the document for the people, mostly due to the fact that our parliamentarians, who are supposed to be the peoples' representatives, turn out to be the party representatives.....enter into the proceeding.

Sovereignty lies with the people. The people have the power. Yet the Constitution does not recognise any of that. It is an Act of a foreign power. Its intentions were as a subordinate to the United Kingdom and therefore, by virtue of what this Court has already held, we cannot read that the sovereignty that lies under the Constitution with the Crown of the United Kingdom should now read "to belong to the Australian people".

Your Honour, I hope I have expressed sufficient, and sufficient grounds, for you to accept that we have a very difficult problem and that this problem must be, and can only be, resolved by a totally impartial court that is vested with the jurisdiction to hear and determine this matter and this court, it is the only court, is the International Court of Justice and I seek that you uphold my application and ask the Attorney-General to move the proceedings to that court.

HIS HONOUR: Yes, thank you, Mr Joosse. Ms Mastos, do you support or oppose the application to adjourn?

MS MASTOS: The application is opposed, your Honour.

HIS HONOUR: Yes. I need not trouble you further on it.

The applicant asks that I adjourn the further hearing of his application for removal under section 40 of the Judiciary Act (Cth) pending invitation to the Attorney-General for the Commonwealth to submit a question or dispute to the International Court of Justice. The question which the applicant contends should be submitted to the International Court of Justice is the question of the validity, or perhaps applicability, of the Constitution of the Commonwealth in this country. It is not self-evident to me that the question which the applicant would have submitted to the International Court is a question of a kind which can, under the statute of that Court, be submitted to it but I will, for the purposes of consideration of the immediate application assume that it is.

In aid of his argument that I should proceed no further with the section 40 removal application pending submission to the International Court, the applicant deployed many of the arguments in support of the contention which, as I understand it at the moment lies at the heart of his section 40 removal application, namely that because Australia is now a sovereign nation and because the Constitution of the Commonwealth is contained in section 9 of the Commonwealth of Australia Constitution Act 1900 (Imp), that Constitution no longer binds in Australia. The applicant, by reference to the decision of the Court in Sue v Hill [1999] HCA 30; (1999) 163 ALR 648 and by reference to certain provisions of the Constitution, contended that the Constitution is not apt for an independent nation but is apt for a self-governing colony.

It followed, so he submitted, that the Constitution either no longer binds or no longer has application and that this Court, owing as it does its origin to Chapter III of the Constitution, cannot be an impartial tribunal in determining the contentions which he makes. There is, so the argument continued, an impartial tribunal available in the form of the International Court and, that being so, the present application should be adjourned until the question is submitted to that body.

In the course of his submissions, the applicant made frequent reference to questions of sovereignty. In particular, he referred to whether Australia is now, whether by a process of evolution or otherwise, to be regarded as an independent and sovereign nation.

As Professor Wade pointed out in his seminal article "The Basis of Legal Sovereignty" 1955 13 Cambridge Law Journal at 172:

Sovereignty is a concept that legal scholars not only have spent much time examining but it is a concept which is used to refer to some very different legal concepts.

As Professor Hart pointed out in "The Concept of Law" 1961 at page 218:

An uncritical use of the idea of sovereignty has spread confusion in the theory both of municipal and international law.

For present purposes, the critical question which is raised in the section 40 removal application is a question about recognition of laws as laws which bind both the courts of this country and its citizens. Mr Joosse seeks to contend that certain Acts of principally State, rather than Commonwealth, Parliaments are Acts which are not to be recognised as laws which bind the courts or the citizens of the country. That invites attention to what is the rule that is to be applied by a court in this country to recognise commands which are to be treated by it, and by citizens, as binding upon it and them.

The question of identification of the rule of recognition of legal validity is, in my opinion, not a question which depends upon whether, for political or international purposes, Australia is properly to be described as either sovereign or independent or both. Nor, in my opinion, is it a question the answer to which is affected by whatever process of evolution may have occurred in Australia's standing in international relations. Rather the question which confronts this Court, as any other court in this country, is the basal question of what rule is it to apply in order to recognise a valid and enforceable command to it and to others within the nation.

Once the nature of the question is identified in that way it follows inevitably, in my view, that no question of partiality arises, let alone requires the Court to avoid confronting and dealing with the issue by confiding its decision to another tribunal, whether an international tribunal such as the International Court of Justice or otherwise. The central issue is, as I say, an issue about how a court recognises what is a valid law. That is a question for the Court to decide and the Court alone. Accordingly, the application for adjournment is refused.

Now, Mr Joosse, do you seek to be heard further in relation to your application for removal of the cause or part of the cause pending in the Magistrates Court into this Court?

MR JOOSSE: Sir, I do indeed.

HIS HONOUR: How long do you expect your submissions on this aspect of the matter to take?

MR JOOSSE: A couple of minutes.

HIS HONOUR: I inquire simply for the advantage of other parties who are waiting. But you proceed.

MR JOOSSE: Thank you very much, your Honour. Your Honour, if it is the decision of the Court to proceed, I should submit to you that you are in breach - the Court is in breach of law, that it cannot judge in its own case - in its own course, I should say, and it also violates international law because I am entitled to be heard before an independent tribunal established by law. This Court cannot, following Sue v Hill, establish that it is actually established by Australian law, the sovereign of Australia, the Australian people, and therefore the question of the legal validity of this Court is highly in question. This question must be resolved. The only court that can resolve it and has the jurisdiction to deal with it, because it has the question - that has under Article 36(2)(b) - it can deal with any question of international law.

HIS HONOUR: This, I think, is to hark back to issues upon which I have already ruled, Mr Joosse. My concern now is to hear arguments you wish to make in support of your application that I order that part of the cause now pending in the Magistrates Court be removed into this Court.

MR JOOSSE: I misunderstood you, sir. With all due respect, I thought that you were asking me if I had any further submissions to make to your ruling that - - -

HIS HONOUR: No. I have moved now to the question of removal under section 40. Is there anything you wish to say in addition to the submissions we have earlier heard on that issue?

MR JOOSSE: Yes, there is. I just want to sort of recap on what I have possibly said earlier in a different way, that is, that the Victorian Constitution is a colonial constitution which, at the time whenever it happened, that this - - -

HIS HONOUR: The Victorian Constitution Act 1903 was re-enacted in 1958 and the Constitution Act Amendment Act I cannot bring to mind the date but was, I think, re-enacted either in the 1950s or sometime after that, was it not?

MR JOOSSE: Yes. It certainly was, sir, but, you see, it is the question of matter of fact and matter of law. I can come to your house as a matter of fact and rob you but as a matter of law I can certainly not do that. Now, it is my submission, sir, that whatever happens in Victoria in relation to our Constitution, it certainly was not done with the approval of the sovereign of this country, namely, the people of Australia. We were not given at any time notification that new constitutions by which we were to be ruled and governed should be legislative. The people of Australia, the sovereign had no say in this whatsoever.

HIS HONOUR: Well, you omit reference in that to the Federation referendums at the end - - -

MR JOOSSE: Your Honour, with all due respect, we have already established that at Federation only a very small percentage of the people were entitled to vote. Those that voted were British subjects, these were not Australian subjects and, in most cases, people had up to six votes. It was only - less than 10 per cent of the population actually had a vote and they never and certainly did not vote on the Constitution that was designed for independence.

As Quick and Garran quite clearly stated, it was to be at all times subordinate to the United Kingdom. The people that resided and voted on that Constitution were British subjects and were protected under the Crown of the United Kingdom.

At the change of sovereignty and, you know, unless this Court can explain how the change could possibly have taken effect whilst our Constitution still read - the sovereign in the Commonwealth of Australia is the sovereign of the United Kingdom and not the sovereign of the Australian people. It has been established that we cannot alter the constitutions to our likes. They have to be taken in the concept in which they were taken and if, indeed, the government of Victoria repealed the colonial legislation and re-enacted it, that would have to be ultra vires because changes can only be made by virtue of referendum. It is just totally inconceivable that, you know, such major changes that affects all Australians can be made without the approval of the sovereign of this country.

Most people would not even know that these changes have occurred. Now, I say if they have occurred, they have occurred for convenience of very few but certainly not for the convenience of the people and certainly not with the consent of the sovereign which are the people of Australia. There is no mechanism whatsoever in place under the Constitution to change the sovereign. So, it is inconceivable that, on the one hand, this Court rules that sovereignty lies with the people and yet we must obey with the letter of the law, the black letter written in the Constitution, and those constitutions clearly state that the sovereignty lies with the Queen, the Crown of the sovereignty in the United Kingdom. It is inconceivable to have two sovereigns ruling the Commonwealth of Australia.

Sir, at times you refer to international laws like it is a far distant relation. Let me remind you that on numerous occasions, and you mentioned, for instance, Chief Justice Mason in the Teoh Case, you very clearly stated that it is up to our legislators to ensure that all legislation falls within the framework of international law, because if it is not, if it is in conflict, it must yield to the international instrument.

Now, it is not only international law by which our laws have to confer, our laws cannot violate a right of the people, and these actions that you described by governments revoking and a re-enacting in our constitutions is a gross violation of these rights. These are violations under imperial law, colonial law that is certainly under international law, being an independent sovereign nation. It states very clearly that the sovereignty must change immediately following independence to the people.

Now, this has not happened. The people have never been given their sovereignty, they have never been advised that they have obtained sovereignty or that they had the powers to enact a new set of rules, a new Constitution by which they wish to rule. They have never given their inalien rights to self-determination. They have the right to choose their own political and judicial system. The citizens of Australia, in contrast to British subjects - the Australian subjects have never been given or been allowed to utilise their purported and newly obtained sovereignty and therefore, you know, with all due respect, this is not violation with international law. It has already been held by this Court that if there is a conflict between domestic and international law, the domestic law must yield. The international instrument must prevail.

The people of Australia can only look towards our courts to uphold their rights and their rights, I submit to you, sir, are grossly violated by the very acts that you have just mentioned, namely, that State governments can just, at the whim, revoke or re-enact their constitutions by which they have, again, all the powers and the people have none. It is not for them to give. It is up to the people to give the powers away. The people are the sovereign.

So, unless you believe it can be done other than by way of law, it is my submission that it cannot legally be done because both the rights of the people forbid any legislation to be passed that abrogates our rights. That legislation would be instantly null and void and, once more, if a government violates the fundamental rights of the people, then the government abdicates. That is my submission, sir.

HIS HONOUR: Yes, thank you, Mr Joosse. Ms Mastos, do you oppose or support the application for removal?

MS MASTOS: It is opposed, your Honour.

HIS HONOUR: Yes. I need not trouble you further on it.

The applicant seeks an order under section 40 of Judiciary Act (Cth) removing part or all of a proceeding pending in the Magistrates Court of Victoria at Melbourne in which Coadys, a Firm, has sued him.

The arguments which are advanced in support of the application for removal are arguments to identical effect to those which I considered in Joosse v ASIC [1998] HCA 77; (1998) 73 ALJR 232; 159 ALR 260 and Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 74 ALJR 68; 166 ALR 302. The arguments today were stated in different form from the form in which they were deployed in those earlier cases but their statement was, in the end, to no different effect.

Central to the applicant's contention is the proposition that certain Acts are invalid or inapplicable now because there has been an unremedied break in sovereignty in this country by reason of Australia's evolution or alteration in status to that of a sovereign independent nation rather than that of a colony subject to British imperial power.

As I sought to explain in Helljay, I consider that the contentions that are advanced confuse questions of political sovereignty with the question of identifying the supreme legislative authority recognised in this legal system and the rules for recognising its valid laws. The questions which the present application seeks to agitate are questions that are resolved by covering clause 5 of the Constitution when it says that:

"This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth notwithstanding anything in the laws of any State" -

and, given the reference that is made in this matter to State laws, by the provisions of section 106 of the Constitution that:

"The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State."

For the reasons which I gave, both in Joosse v ASIC and Helljay, the questions which it is sought to agitate in this matter are untenable. The application for removal is therefore refused.

Yes, Ms Mastos?

MS MASTOS: I see an order for costs, your Honour.

HIS HONOUR: Yes. Are you able to resist an order for costs, Mr Joosse?

MR JOOSSE: I certainly do, sir.

HIS HONOUR: Yes. Upon what basis?

MR JOOSSE: Sir, when this application was made other applications were already before the Court and I felt it unethical for me to proceed in a proceeding which I most likely will be successful in and thereby accepting the Court's ruling whilst at the same time I had application before the High Court denying its jurisdiction.

Furthermore, sir, the issues that I have raised are not personal issues. These are issues that have a user fact to all the people of Australia and it appears that the more answers come from the courts when these arguments are agitated or these points are agitated. The more answers are given that only more questions arise. It appears very much that either we not sort of presenting the argument properly or there has to be a bias somewhere because the statements that you make on your rulings - - -

HIS HONOUR: There is a third view, Mr Joosse, and that is that the argument is untenable.

MR JOOSSE: Yes. The Constitution - all these rules of the Constitution, of course, were valid at the time when the sovereign was the sovereign of the United Kingdom.

HIS HONOUR: Mr Joosse, I am concerned only now with the question of costs. Why should you not pay the costs of this application?

MR JOOSSE: Because, sir, I have actually a duty to bring these matters to the Court. I have a duty - - -

HIS HONOUR: Yes. Anything else you wish to say in support of your proposition?

MR JOOSSE: I have a duty because I have sworn allegiance to the Crown of the United Kingdom and somewhere, somehow, somebody has stripped me of that status but they cannot take my oath of allegiance away. Therefore I have the right and I have the duty to come to this Court and seek clarification on these issues.

HIS HONOUR: Yes. Is there anything else you wish to say?

MR JOOSSE: This Court has held that Australia is an independent sovereign nation.

HIS HONOUR: We have been round this before, Mr Joosse.

MR JOOSSE: But this Court has never actually shown the people of Australia any proof.

HIS HONOUR: Mr Joosse, just be quiet. Mr Joosse, be quiet and listen to me. You are to confine your submissions to the question of costs. That is the only question I have before me. Is there anything else you wish to say on the question of costs?

MR JOOSSE: Sir, I would find it most unreasonable if you award costs against me.

HIS HONOUR: Yes, thank you. The application will be dismissed with costs.

MS MASTOS: Your Honour, before you leave the Bench, these costs I seek are indemnity costs.

HIS HONOUR: Yes. Why should indemnity costs be ordered, Ms Mastos?

MS MASTOS: Your Honour, I have an affidavit here which - - -

HIS HONOUR: Well, has Mr Joosse seen this?

MR JOOSSE: No.

HIS HONOUR: Well, I am not having it served in Court, Ms Mastos. If you want to make application for indemnity costs, it should be made on proper notice. I am not having an unrepresented party put in this position on the spot.

I may say, Ms Mastos, I am familiar with the decision of, I think it is Justice Hill in an earlier matter involving these issues in which indemnity costs have been ordered. I am familiar also with the fact that but for the way in which the matter was presented in Helljay, it was likely I would have made an order of that kind in that case but why should Mr Joosse now have to face an affidavit that is handed to him across the Bar table?

MS MASTOS: In October of last year, your Honour, I forwarded a letter to Mr Joosse referring to the matter of Helljay and asking him that in light of your Honour's decision in that matter would he or is he intending to continue with this particular application. I received no response to my letter. In a case, your Honour, where an opportunity was given to the applicant to withdraw this application in light of a decision in which issues raised were identical to those issued today, I submit that an order for indemnity costs is appropriate in this instance also. That is the extent to which my affidavit - - -

HIS HONOUR: What is going to be the practical effect in a case of this kind, Mr Mastos, between party/party and indemnity costs?

MS MASTOS: There was a large number of - - -

HIS HONOUR: You are an associate of the firm, are you not?

MS MASTOS: That is correct.

HIS HONOUR: So, it is the firm's time that is being used up.

MS MASTOS: That is correct, your Honour.

HIS HONOUR: As a matter of practical reality, what consequence would follow if indemnity costs were ordered?

MS MASTOS: There were a number of attendances with the Registry of the High Court which I do not believe would be payable under an order for party/party costs only. There were a number of searches of High Court files undertaken which, again, I do not believe would be payable under an order for party/party costs, and photocopies also, your Honour. The difference is probably about $150. However, it does make a difference to my firm.

HIS HONOUR: I understand that. I think for that amount of money, I will not delay the matter further, Ms Mastos. The application will be dismissed with costs.

AT 11.10 AM THE MATTER WAS CONCLUDED