Lamont v Bright C6/2002 [2002] HCATrans 292 (17 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Registry No C6 of 2002

B e t w e e n -

DAVID SAMUEL LAMONT

Applicant

and

ROCHELLE FLORENCE BRIGHT

Respondent

Application for removal

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 17 JUNE 2002, AT 1.49 PM

Copyright in the High Court of Australia

MR D.S. LAMONT appeared in person.

HIS HONOUR: I hold a certificate from the Deputy Registrar of this Court who certifies that she holds a letter from McGuinness Eley, solicitors for the respondent, Rochelle Bright, who advise that the respondent does not intend to file a summary of argument and will submit to any order of the Court, save as to costs.

Mr Lamont, I have read your submissions. My practice is that applicants on these interlocutory matters are not entitled to any more time than they are entitled on a special leave application and ordinarily I confine oral clarification of the written submissions to 10 minutes. Do you wish to put any oral argument?

MR LAMONT: I do, sir, yes.

HIS HONOUR: Very well.

MR LAMONT: Further to my filing of a section 40 application after proceedings in the Family Court of Australia and the comments and remarks of various justices in that court, I have asked that the matter be raised to this Court to hear certain part of that matter pertaining to constitutional issues which I believe are applicable.

Further to that, under section 78B of the Judiciary Act 1986 I have forwarded notices to the Commonwealth and States Attorneys-General and the Territories, to which date I have received back some four responses, that being effective from 22 May, some three weeks ago. My understanding is that sufficient time should be given for the Attorneys-General to respond and I would need your Honour to give me some direction as to whether you intend issuing further time for that to occur or not.

HIS HONOUR: No, I do not. You proceed with your argument at the moment.

MR LAMONT: Very good. The law, as I understand it in Australia, derives its authority from the Commonwealth of Australia Constitution Act of 1900. My perception of the law is one of exactness where each word has a specific intended meaning, like an express term of a contract. Over time, laws are amended to reflect the change in our society and international relations and in some instances a major shift in community expectations through our politicians in the legislature. The law is enforced by certain bodies administered by others and, where thought to be incorrect, challenged in the courts; thus my application here.

The law is defined by each sentence of every Act, and the Act that I am referring to particularly is the Commonwealth of Australia Constitution Act of 1900, which is British law, the law of the United Kingdom. That is fact. Clause 2, and the preamble of that Act, identify that the Crown of the United Kingdom of Great Britain and Ireland under the Constitution has been hereby established. Secondly, clause 2 of that Act, an "ACT TO EXTEND TO THE QUEEN'S SUCCESSORS", provides:

The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.

Thus the appointment of the Governor-General at that time, Lord Hopetoun I believe, to oversee the British interests in Australia. It is to this document, the legislation, that I submit my application is superseded by Australia's recognition as an independent sovereign nation. The Queen has identified in the Commonwealth of - - -

HIS HONOUR: I have read your argument, but do you have anything further to add to what you have in your written submissions, Mr Lamont?

MR LAMONT: I understand that the oral argument was also for clarification, sir, which I am attempting to move towards.

HIS HONOUR: Yes.

MR LAMONT: The Queen identified in the Commonwealth of Australia Act was Queen Victoria. At the time of the Act being implemented the Queen was Queen of the United Kingdom, of Great Britain and Ireland. However, since 1900 the Monarch's title has undergone change in the United Kingdom and in Australia to the point where the Queen of Australia has been the only title used by the Queen for use in relation to Australia and its territories since September 1973, where the Royal Style and Title Act under section 2 changed the recognition of the Queen removing the Queen of the United Kingdom.

This evolution was the result of an earlier change to the Queen's title in Australia in 1952 by Prime Minister Menzies, where the title "Australia" was adopted in connection with the Queen of the United Kingdom, Australia, its other realms and territories. This was also in the Act of 1953, Royal Style and Titles Act. It was correctly identified that the title "Ireland" was to include the area of Northern Ireland since the independence of Ireland in 1927.

The United Kingdom Parliament recognised this change in the significance of the monarchs, changed the correct title, gaining independence of Ireland, and changed in their 1927 Act of the United Kingdom Parliament, where it refers to - and I quote section 2 of that Act, "Parliament shall hereafter be known as and styled the Parliament of the United Kingdom of Great Britain and Northern Ireland", thereby changing the emphasis of "Ireland" to "Northern Ireland". No such amendments were ever made to the United Kingdom Legislation applicable to the Constitution of Australia Act - still an Act of the United Kingdom Parliament.

The amendment to this Act by the Australian people, provided for in section 128 of clause 9 of that Act was only applicable to clause 9 and not the previous eight clauses. These have only ever been permitted to be amended by the Parliament which created the Act initially, the United Kingdom Parliament.

To this day we, the Australian people, cannot amend clauses 1 to 8 of this Constitution which provides a defined authority for the creation and administration of law within Australia.

HIS HONOUR: That may be a debatable question since the passing of the Australia Acts.

MR LAMONT: Further, my notice of motion of 27 March seeks to have this Court answer a number of questions applicable to the Queen's title, role and authority as identified in the Commonwealth of Australia Constitution Act 1900 . It is my submission that the Queen of Australia is not a recognisable entity within the Commonwealth of Australia Constitution Act and at no time since that Act's implementation has the United Kingdom Parliament suitably amended that Act so as to recognise a Queen of Australia.

HIS HONOUR: But the Constitution does not refer to the Queen of Australia; it refers to the Queen.

MR LAMONT: The Queen, her heirs and successors.

HIS HONOUR: That is so.

MR LAMONT: In the preamble to the Constitution it identifies the Queen as the Crown of the United Kingdom of Great Britain and Ireland.

HIS HONOUR: Yes.

MR LAMONT: But furthermore, in relation to the authority vested in the Governor-General by section 61 of clause 9 of that Act, the Queen so referenced is the Queen identified in the preamble and clause 2 of the Act under the Crown of the United Kingdom of Great Britain and Ireland, as I have just referred. The letters patent of 1984 signed by Prime Minister Hawke identifies only the Queen of Australia and the Great Seal of Australia, both having no nexus to the Commonwealth of Australia Constitution Act 1903 and are so ultra vires. It is to this end that I have applied to this Court to have the current proceedings before the Family Court removed, in part, to this Court so that the matters arising under the Constitution and certain treaties to which Australia has ratified our acceptance can be dealt with more fully and appropriately.

I ask this Court to act with the courage required to deal with the issues raised in my application for the benefit of my son and myself primarily and for Australia as a whole. I find it very difficult when I look at the Family Court of Australia - I find it difficult to comprehend the law works on fact, but even today the Family Court identifies the Commonwealth of Australia Constitution Act as Commonwealth legislation, as identified in their documents. That basically, sir, is my application.

HIS HONOUR: Thank you, Mr Lamont.

The applicant seeks an order under section 40 of the Judiciary Act (Cth) that proceedings pending in the Family Court of Australia be removed into this Court on the ground that there are questions in those proceedings that arise under the Constitution or involve its interpretation. According to paragraph 26 of the applicant's summary argument, the position of Governor-General "has been commissioned and occupied since at least 24 October 1945 without power and authority." As a result, so the applicant asserts, the Governor-General had no power to assent to the Family Law Act 1975 of the Commonwealth. Consequently, the Family Law Act 1900 , he asserts, is invalid.

In paragraph 12 of his summary of argument, he submits that, from that date "of the signing of the United Nations Charter on behalf of the people of the Commonwealth of Australia, the laws of their former colonial master, the United Kingdom, become ultra vires. For it to be otherwise is to offend both common sense and the first principle of international law, the right to self-determination."

Paragraph 17 of an affidavit filed by the applicant in the family law proceedings goes somewhat further. It asserts that from 1 October 1919, when Australia signed the Treaty of Versailles, that:

`An Act to Constitute the Commonwealth of Australia' became ultra vires, with regard to Australia.

The written arguments of the applicant in his oral submissions today are based on the premise that since 1945, by reason of international law and various international events, treaties and statements, the Queen and her Australian representative, the Governor-General, have had no power under the Commonwealth of Australia Constitution Act to assent to any Bills passed by an Australian Parliament, including the Family Law Act 1975 . It would seem to follow that the federal Parliament has not passed a valid law since 1945, that no member of the federal Parliament has been validly elected since that time and that no member of the federal judiciary, including members of this Court, has been validly appointed since 1945.

The argument of the applicant, in my view, fails to recognise that international treaties and events are not part of the domestic law of this country unless, by legislation, they are made part of the domestic law. The argument also fails to recognise that Parliament can legislate in breach of the rules of international law. More importantly, the argument fails to distinguish between sovereignty in international law or as a political concept, and sovereignty within the domestic legal system. Sovereignty in the domestic system describes, as Professor Hart has said, "the supreme legislative authority recognised in this system". see the "Concept of Law" (1961) at page 218 and Joosse v ASIC [1998] HCA 77; (1998) 159 ALR 260 at 266.

Covering clause 5 of the Constitution makes the Constitution "and all laws made by the Parliament of the Commonwealth . . . binding on the courts, judges, and people of every State and of every part of the Commonwealth". In Hartian terms, it is the rule of recognition that the courts of Australia follow and apply.

The Family Law Act was enacted under sections 51(xxi) and (xxii) of the Constitution in accordance with section 1 of the Constitution and was assented to in accordance with section 2 of the Constitution. Except to the extent that any particular provision of the Family Law Act 1975 is beyond the powers conferred on the federal Parliament, it is binding on the courts and people of this country, including this Court and the applicant and the respondent to this application.

Arguments similar in principle but not in detail to those now relied on by the applicant were considered and rejected by Justice Hayne of this Court in Joosse v ASIC in a judgment with which I fully agree. The questions that the applicant seeks to argue do not, in my view, have sufficient prospects of success to warrant removal into this Court and taking up the time of the Justices of the Court. Even if I thought that the applicant had an arguable case, which I do not, I would not order the removal of the Family Court proceedings.

It is of the utmost importance that whenever possible this Court, before making a decision, should have the benefit of reasoned judgments from the lower courts before determining legal issues, including constitutional issues. It is also of the utmost importance that this Court should not deal with or should not decide constitutional issues until it is necessary to do so. Even though I think the applicant's arguments on the validity of the Family Law Act will almost certainly fail in the Family Court, he may succeed on the merits. If he does, the constitutional issue will become moot. If he is dissatisfied with the decision of the Family Court and the Full Court of that court, it is open to him to file a special leave application to raise the questions in this Court that he wishes to raise. For the reasons I have given, I would not think that such an application has any real prospects of success. But it is a course open to him.

Accordingly, I dismiss the application. The Court will now adjourn to hear the other two matters.

AT 2.03 PM THE MATTER WAS CONCLUDED