Anderson v Kerslake

[2013] QDC 262

DISTRICT COURT OF QUEENSLAND

CITATION:

Anderson v Kerslake [2013] QDC 262

PARTIES:

NERISSA MARGARETE ANDERSON
(appellant)

v

DAVID KERSLAKE
(respondent)

FILE NO/S:

D2/13

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Charters Towers Magistrates Court

DELIVERED ON:

18 October 2013

DELIVERED AT:

Roma

HEARING DATE:

9, 19 August 2013 and 27 September 2013

JUDGE:

Irwin DCJ

ORDER:

Appeal against conviction and sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – JURISDICTION – OTHER MATTERS – where appellant convicted on single count of failure to vote at an election without a valid and sufficient excuse – where the appellant submitted the court had no jurisdiction because she was not bound by Australian law – where part of the evidence was an enrolment claim form – where the appellant submitted she was not offered any alternatives or advised of any rights if she refused to sign the form – where the appellant submitted her date of birth on the form was altered without her knowledge or approval by someone unknown – whether the State of Queensland has power to legislate in respect of the Ngadjon Tribe.

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the appellant convicted on single count of failure to vote at an election without a valid and sufficient excuse – where the appellant was sentenced to a fine of $100 – where no conviction recorded – where $100 was the maximum penalty which could be imposed – whether the sentence was manifestly excessive.

Australia Act 1986 (Cth)

Commonwealth of Australia Constitution Act 1901 (Cth), s 41, s 51 (xxvi), s 127.

Commonwealth Electoral Act 1918 (Cth), s 93, s 100, s 101, s 102, s 103, s 104, s 111.

Commonwealth Franchise Act 1902 (Cth).

Corporations (Queensland Act) 1990 (Qld).

Criminal Code 1899 (Qld), s 603.

Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth), Sch 2.

Electoral Act 1992 (Qld), s 2, s 64, s 66, s 106, s 134, s 136, s 186.

Evidence Act 1995 (Cth), s 155A.

Judiciary Act 1903 (Cth), s 78B.

Justices Act 1886 (Qld), s 139, s 142A, s 222, s 223, s 225(1).

Pacific Islander Protection Act 1873 (35 & 36 Victoria, ch 19).

Pacific Islander Protection Act 1875 (38 & 39 Victoria, ch 51).

Penalties and Sentences Act 1992 (Qld), s 12.

Queensland Investment Corporation Act 1991 (Qld).

Coe v Commonwealth of Australia (1979) 24 ALR 118; 53 ALJR 403, cited.

Coe v Commonwealth of Australia (1993) 118 ALR 193, cited.

Faderson v Bridger (1971) 126 CLR 271, cited.

Fox v Percy (2003) 214 CLR 118, cited.

Graham v Queensland Nursing Council [2009] QCA 280, applied.

House v The King (1936) 55 CLR 499, applied.

Judd v McKeon (1926) 38 CLR 380, applied.

Krosch v Springell, ex parte Krosch (1974) QdR 107, cited.

Mabo v Queensland (No 2) (1992) 175 CLR 1, cited.

Mbuzi v Torcetti [2008] QCA 231, applied.

New South Wales v The Commonwealth (1975) CLR 337, cited.

Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, applied.

Post Office v Estuary Radio Ltd [1968] 2 QB 740, cited.

R v Anning [2013] QCA 263, applied.

R v Briese (1997) A Crim R 75, applied.

R v Buzzacott (2004) 149 A Crim R 320, applied.

R v Pearson; Ex parte Spika (1983) 152 CLR 254, discussed.

R v Whye [1997] QCA 320.

Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, applied.

Salaman v Secretary of State In Council of India [1906] 1 KB 613, cited.

Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, cited.

The Australian Workers’ Union of Employees of Queensland v State of Queensland; State of Queensland v Together, Queensland, Industrial Union of Employees & Anor [2012] QCA 353, cited.

Walker v New South Wales (1994) 182 CLR 45, cited.

COUNSEL:

The appellant appeared on her own behalf

L.C. Ling for the respondent

SOLICITORS:

The appellant appeared on her own behalf

Crown Law for the respondent

Background

1. On 4 June 2013, the appellant was convicted after a summary trial of one count of failure to vote at an election without a valid and sufficient excuse, contrary to s 186(1) of the Electoral Act 1992 (Qld) (“EA”).

1. No conviction was recorded and she was fined $100, together with an order she pay court costs of $75 and professional costs of $500.  These sums were referred to the State Penalties Enforcement Agency.

1. This appeal has been brought pursuant to s 222 of the Justices Act 1886 (Qld) (“JA”) against both conviction and sentence. The grounds of appeal are set out in Attachment 1 to the notice of appeal. This attachment is in the following terms:

   
   
   

“I Nerissa of the Ngadon-Jii Tribe desire to appeal to a District Court Judge against the order of Richard Lehnann made at Charters Towers Magistrates Court on Tuesday 4 June 2013.

I am appealing the fact the court failed to take into consideration which jeopardised my individual status.

1.I did not make a plea and a plea was entered on my behalf against my will.

2.As part of the evidence the Commonwealth of Australia and the State Government of Queensland, Commonwealth of Australia Document 2000 reference number 12177067 suggested that I signed to be enrolled on the electoral.

3.At the time I was not offered any alternatives nor was I advised of any rights that I may have if I refused.

4.On document reference number 12177067 my Date of Birth was altered without my knowledge or approval by someone unknown.  I did not give my authority to do this.  And the severity of the fine issued against me.”[1]

[1]The correct name of the acting Magistrate whose decision is the subject of the appeal is Lehmann.

1. I note that although in giving her contact details and signature in the notice of appeal the appellant has written “Nerissa of the Ngadjon-Jii Tribe” and “Nerissa of the Ngadjon Tribe” respectively[2] she has written “Nerissa Anderson” as the name of the defendant.  She has also written “Nerissa Anderson” as the person who desires to appeal.  She has written her address as “3 Ann Street Malanda QLD 4885”.

   [2]She has written her email address as “[email protected]”.

Appeal against conviction

Legal approach to this appeal

1. It has been held that:

“The central task of an appellate court in an appeal by way of rehearing is not to analyse the correctness or otherwise of the decision below, although an analysis may sometimes be helpful. It is to decide the case for itself. Often it will do so by considering only the evidence admitted at first instance. That is usually the position in appeals under s 222 of the Justices Act 1886. … That requires an appellate court to draw its own inferences from the facts established by the evidence while respecting the advantage of the court or tribunal at first instance in seeing and evaluating witnesses. This is particularly relevant when issues of credibility arise.”[3]

[3]Graham v Queensland Nursing Council [2009] QCA 280 per Fryberg J at [69]-[70] (with whose reasons the Chief Justice agreed) discussing the dictum of McMurdo P in Stevenson v Yasso [2006] 2 Qd R 150 at 162; [2006] QCA 40 at [36].

1. As has also been said:

“On such an appeal the Judge should afford respect to the decision of the Magistrate and bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence, but the Judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions.” [4]

[4]Mbuzi v Torcetti [2008] QCA 231 at [17] with reference to Fox v Percy (2003) 214 CLR 118 at [25] and Rowe v Kemper [2009] 1 Qd R 247 at 253; [2008] QCA 175 at [5].

1. Therefore a Judge hearing an appeal under s 222 of the JA must conduct a real review of the evidence drawing his or her own inferences and conclusions.[5]

   [5]Rowe v Kemper at [5].

The charge

1. The appellant was charged:      

   
   
   

“that between 2 March and 6pm Saturday 24 March 2012 at Charters Towers … in the said State NERISSA MARGARETE ANDERSON, an elector, did fail to vote at an election without a valid and sufficient reason in contravention of s 186(1) of the Electoral Act 1992.”

Particulars

1. The complaint included the following particulars:      

   
   
   

“1.Nerissa Margarete Anderson was enrolled on the Electoral Roll.

2.        A General Election was held on 24 March 2012.

3.        Nerissa Margarete Anderson did not vote at that election.

4.Nerissa Margarete Anderson was issued with a notice of failure to vote by the Electoral Commission Queensland pursuant to s 134 of the Electoral Act 1992 on 27 July 2012.

5.Nerissa Margarete Anderson advised the Electoral Commission Queensland that the reason she did not vote was that she believed she had a constitutional reason for not voting on the basis of her race.”

Proceedings before the Magistrates Court

1. When the appellant, who represented herself, was asked how she pleaded to the charge she replied:

“I’m not entering a plea”

She gave as a reason that she was not an Australian citizen but appeared under protest as an “intermediate civilian, international law”.  As such she submitted the court had no jurisdiction because she was not bound by Australian law.  She asked the court to show the legal relationship between “the Federal Constitution of the Commonwealth and myself as a sovereign person.”

1. She submitted a printed argument as a “sovereign Nudgen [sic] tribal woman”.[6]  This is a 25 page document.[7]  Mr Ling, the respondent’s counsel, also provided a written submission.  Similar submissions were provided for the purpose of the appeal.[8]

   [6]T. 1-4, ll 39-40. Consistent with her notice of appeal the appellant describes herself in the document as “Nerissa, the Sovereign Tribal Woman of Ngadjon-Jii” and as a “Ngadjon Tribal Woman”.

   [7]This document was headed “Response to PUBLIC OFFICER And a Rebut of Contract To the following:” and includes a section under the heading “NOTICE OF REBUTTAL OF CLAIM OF TITLE TO LAND AND CLAIM OF RIGHT”.  She described it as her “witness evidence submitted on paper in written form”.

   [8]Because similar submissions were made by the parties for the purposes of this appeal, I will refer to the relevant aspects of these submissions in the discussion of the issues which arise on the appeal.

1. His Honour dismissed the appellant’s challenge to the court’s jurisdiction.  He found no basis in law for any of the objections raised by the appellant in the 25 page document.  Mr Ling’s submissions were accepted.  He said the cases contained in the submission were binding on him; and found there was no doubt about the validity of Queensland’s constitutional arrangements and the Queensland Parliament’s power to make laws concerning state elections.  He entered a plea of not guilty.

1. The only witness called on behalf of the respondent was Mr Huey, a principal elections officer of the Electoral Commission of Queensland. Before he gave evidence Mr Ling tendered a Certificate under s 186(4) of the EA signed by the Acting Electoral Commissioner that:

   
   
   

“(a)The 2012 Queensland State General Election happened on 24 March 2012.

(b)Nerissa Margarete Anderson, an elector within the meaning of Electoral Act 1992, failed to vote.

(c)A notice was sent by the Electoral Commission of Queensland to Nerissa Margarete Anderson under section 134 of the Electoral Act 1992 on 27 July 2012.

(d)A form mentioned in section 134(1) was not received by the Commission from the elector by the date stated under the subsection.”

This certificate was admitted as Exhibit 1 without objection by the appellant.[9]

[9]The acting Magistrate asked her if she wanted to object.  She responded in the negative.

1. Pursuant to s 186(4) of the EA this certificate was evidence that the appellant, an elector, failed to vote at the 2012 Queensland General State Election which happened on 24 March 2012. It was also evidence of the matters certified in paragraphs (c) and (d) with the consequence under s 134(5) that it was evidence the elector failed to vote at the election without a valid and sufficient excuse.

1. Mr Huey was called as a witness, despite the fact the certificate established the elements of the offence against s 186(1)(a). Although he gave additional evidence about the reason the appellant gave for not voting.

1. Mr Huey supervised the 89 returning officers across Queensland during the election and assisted in following up all electors who appeared to have failed to vote.  He was duly authorised to speak on behalf of the Commission.  During his evidence he identified a copy of the writ for the election issued on 19 February 2012.[10]  This appointed 24 March 2012 to be the polling day.

   [10]Exhibit 2.  The appellant said she had no objection to it being admitted into evidence.

1. Mr Huey explained the process for the creation of consolidated rolls after the election through optical scanning.  A copy of a page from the consolidated roll for the electoral district of Dalrymple in the election was tendered as Exhibit 3.[11]  There was a blank space beside the appellant’s name which indicated she was not issued with a ballot paper for the election.  The appellant’s name and address appears as:

“ANDERSON Nerissa Margarete………..…...….3 Ann St Malanda”

[11]The appellant said she had no objection to this.

1. He said that on 27 July 2012 an Apparent Failure to Vote Notice was sent to the appellant. This is the notice under s 134 of the EA. A template of the covering letter and notice used for this purpose was Exhibit 4.[12]  The contents were the same as what was issued to the appellant.  The standard notice contains three options.  The second is:

“I have a reason for not voting.”

A space is provided for the reason to be stated.

[12]Again the appellant said she had no objection to this.

1. Consistently with the certificate he said no reply was received from the appellant.  As a result she was sent an Infringement Notice which was returned to the Commission with an election for a court hearing.  This was admitted as Exhibit 5.[13] Following the return of this document, Mr Huey believed he spoke to the appellant by telephone about the matter and she responded that she was not bound by the laws of Queensland on the grounds of race. This must be the basis of the fifth particular as set out in paragraph [9].

   [13]The appellant also said she had no objection to this document being admitted into evidence.

1. Mr Huey said that in order to go onto the electoral roll at the time the appellant enrolled it was necessary to fill out and submit a paper form to an electoral authority. This form ultimately ended up with the Australian Electoral Commission which maintains the roll so it is not necessary to maintain separate electoral rolls for every jurisdiction. A copy of the appellant’s enrolment claim form which was submitted to put her name on the electoral roll was provided under a certificate of the Australian Electoral Officer for Queensland pursuant to s 155A of the Evidence Act 1995 (Cth) that it was extracted from the computer records of the Australian Electoral Commission relating to the joint electoral roll for Queensland kept in accordance with s 111 of the Commonwealth Electoral Act 1918 (Cth) (“CEA”). By virtue of s 155A(2) the document is presumed, unless evidence that is sufficient to raise doubt about the presumption is adduced, to be:

“(a)… the … extract from the Commonwealth document, that it purports to be;”.

The document was Exhibit 6.[14]  It is number 12177067.  Therefore it is the document referred to by the appellant in grounds 2 and 4 of her appeal, and to which ground 3 relates.

[14]The appellant again did not object to the document being tendered.

1. This document has been completed with a residential address of “3 Ann Street, Malanda, QLD, 4885”.  It is signed by “N. Anderson”[15] on “020502”.  The document states she had lived at this address since “20 04 02”.  It is witnessed by “Isobelle F Anderson” or “Isabelle F Anderson” of “18 Ward Street, MBA 4850” on the same date.  The spelling of the given name of the witness is unclear from the printing and signature.  I take “MBA” to be a reference to Mareeba.  A daytime phone number for contact is given together with a postal address which is stated to be “same as above”.  An occupation of “Old aged carer” is given.  There is a tick against “Female”.  The date of birth is shown as “100202”.  However there is a circle around this with the date “100285” written in what appears to be different writing.[16]  The place of birth is given as “Mareeba” and “Australia”.  Importantly there is a tick against the question “Are you an Australian citizen?”  The section under “If you are an Australian citizen by naturalisation, please supply the following details” is left blank.  As are “Former Surname/family name”, “Former given names” and “Former enrolled address”.  The signature, “N. Anderson” is immediately below statements that “I am eligible to enrol for Federal and Queensland elections.  I declare that all the information I have given in this form is true and complete.”  Immediately above the witness’s signature are the statements, “I saw the applicant sign this form.  I am satisfied that all statements in it are true.”

   [15]The appellant told me during the appeal she did not deny completing and signing this document.  She said she was 17 years of age when she signed the form.  According to her, this was when she was still in high school when the electoral people came there and she was told that is what she must do.

   [16]She further advised that everything in the document was in her writing with the exception of “100285”.  She had made an error when she filled it out and had actually meant to put “85” on the document.

1. The appellant elected not to cross-examination Mr Huey and not to call evidence.

1. Mr Ling relied upon written submissions on behalf of the respondent.  On the issue of the meaning of “valid and sufficient excuse” he referred to Judd v McKeon[17], Krosch v Springell, ex parte Krosch[18] and Faderson v Bridger[19].

   [17](1926) 38 CLR 380.

   [18](1974) Qd R 107.

   [19](1971) 126 CLR 271.

1. In Krosch v Springell the Full Court of Queensland held that these words had to be determined in accordance with the law laid down by the High Court of Australia in Judd v McKeon[20].  Particular emphasis was placed on the judgment of Isaacs J where he said:

“In my opinion, a ‘valid and sufficient reason’ means some reason which is not excluded by law and is, in the circumstances, a reasonable excuse for not voting.  If it be, as in this case case, an open challenge to the very essence of the enactment, it is of course excluded by law and not valid.”[21]

[20](1974) Qd R 107 at 108.

[21](1926) 38 CLR 380 at 386.

1. In Faderson v Bridger Barwick CJ (with whom McTiernan J agreed) quoted this passage with approval.[22]  His Honour then said:

“In my opinion the argument in this case really amounts to this:  that this elector says he was under no duty to vote because in fact no candidate met his approval; all of them met equally with his disapproval.  That to my mind, is what Isaacs J. refers to as ‘an open challenge to the very essence of the enactment’.  Therefore what I have just read from his Honour’s judgment in Judd’s Case seems to fit this case.”[23].

Owen J added that the point raised by the appellant was concluded against him by the judgments in McKeon v Judd and in particular by the judgment of Isaacs J.[24]

[22](1971) 126 CLR 271 at 274.

[23]Ibid.

[24]Ibid at 275

1. As set out in Mr Ling’s submission, as Barwick CJ said with reference to the equivalent Federal legislation, it places a duty on every elector to record his vote.  This is done by attending at a polling booth, accepting a ballot paper, marking it and depositing it in a ballot box.  A failure to vote therefore involves a failure to attend, accept a ballot paper and having marked it, to put it in the ballot box.[25]

   [25]Ibid at 272.

1. Mr Ling based his submissions on the propositions that the appellant appears to suggest she is not required to vote under the law; and she appeared to be challenging the statutory requirement to vote.

1. He argued the complainant’s submission was not sustainable because:

(a)        based on the ordinary course of events, the appellant, on her own accord, enrolled herself as an elector, resulting in the entry of the defendant’s name in the electoral roll;

(b)        on 7 May 2002, the appellant did enrol herself for the Federal and Queensland elections;

(c)        the appellant indicated in the enrolment form that she was born in Mareeba and ticked “yes” to the question “Are you an Australian citizen?”;

(d)        the appellant did indicate in the enrolment form she was eligible to enrol for Federal and Queensland elections and accordingly signed to declare that all the information she had given in the enrolment form was true and complete; and

(e)        there is no evidence from the defendant as to any excuse for the failure to vote.

1. The appellant said she did not wish to address the court.  She again relied on the 25 page document.

1. His Honour was satisfied beyond reasonable doubt on the basis of the certificate under s 186(4) and Mr Huey’s evidence[26] that an election happened on 24 March 2012, the appellant failed to vote at the election, she was sent a notice under s 134 on 27 July 2012, and a form mentioned in s 134(1) was not received by the commission from her by the date stated under the subsection. He observed that under s 134(5) the last mentioned matter is evidence the elector failed to vote at the election without a valid and sufficient excuse. His Honour regarded this as relevant because he took the view, the prosecution had the burden of proving beyond reasonable doubt the elector did not have such an excuse. He therefore accepted beyond reasonable doubt the appellant failed to vote at the election without a valid and sufficient excuse.

   [26]His Honour noted that while Mr Huey’s evidence was not challenged by the appellant it did not in any way add to the prosecution case:  see Decision, page 2 l 34; Decision, page 3 ll 39-40.

1. The learned acting Magistrate considered the appellant did not seek to challenge she did not have such an excuse, but based on her 25 page submission, her defence to the charge was, she is not subject to the laws of Australia or Queensland and those laws were invalid.  He observed he had already dealt with this argument in deciding the jurisdictional issue.  The written submissions of the prosecutor were accepted.  His Honour considered himself bound by the authorities mentioned in the submission, and in particular Coe v Commonwealth of Australia[27]; Walker v New South Wales[28]; The Australian Workers’ Union of Employees of Queensland v State of Queensland; State of Queensland v Together Queensland, Industrial Union of Employees & Anor[29]; Mabo v Queensland (No 2)[30].

   [27](1979) 24 ALR 118 at 128-129; 53 ALJR 403 at 408.

   [28](1994) 182 CLR 45 at 48.

   [29][2012] QCA 353.

   [30](1992) 175 CLR 1.

1. He concluded these cases firmly establish the validity of Queensland’s constitutional arrangements and Queensland Parliament’s power to make laws concerning state elections.  This establishes the laws of Australia and Queensland were not invalid as submitted by the appellant, and she is subject to the laws of Australia and Queensland.  For these reasons he found her guilty.

1. Mr Ling then submitted that the acting Magistrate impose the maximum fine for the offence of one penalty unity ($100). He informed his Honour the appellant had no previous history. He left it to his Honour’s discretion as to whether to record a conviction without making a submission either way.  He then addressed the issue of costs.  When asked by his Honour as to what she would like to say in relation to penalty, the appellant replied “Nothing sir”.  She added “At this time, no” and asked “Is this time to say that I would be appealing?”

1. His Honour concluded the maximum penalty was appropriate because of the appellant’s absence of cooperation and remorse, and the defence relied on was unarguable.  Because she had no previous convictions and her relative youth he exercised his discretion not to record a conviction.

Appellant’s submissions on the appeal

1. The appellant confirmed that the four grounds of appeal set out in paragraph [3], including the appeal against sentence, are the only grounds of appeal.

1. On 10 July 2013 she filed a four page document titled “David Kerslake v Nerissa of Ngadjon-Jii Tribe – Appellant Brief.”  On 22 July 2013 she filed a document headed “Submissions of Appellant” with accompanying attachments.  The attachments included a 23 page document which was similar to the 25 page printed argument which she relied on before the acting Magistrate.

1. During oral argument before me she advised the first of these documents was only a draft and she was relying on the matters raised in the second document rather than those raised in the first.  Accordingly I determine this appeal only on the basis of the second document containing her written submissions and the additional matters she raised orally during the appeal.[31]

   [31]Although I note that the substance of these draft submissions are repeated in the second document.

1. When asked what she wanted to say in addition to the written submissions the appellant replied:

“Captain James Cook was instructed by the British Admiralty to take possession of the land if peopled, with their consent, on behalf of the King.  At no material time did the new settlers’ society recognise Aboriginal rights including the new courts. 

The colonies, including Queensland, failed to adhere to Queen Victoria's Order‑in‑Council in 1876 and 1872 to be read as one.  This failure to adhere was to reject a law created by the Monarch.  All subsequent instructions were to offer protection under English law of the people of the Aboriginal race.  But my people never ceded to the British nor had the British declared war against my people. 

Furthermore, the original concept of terra nullius declared that Aboriginal people were not human beings.  Under the State Protection Laws Aboriginal peoples became wards of the states.  Prisoners confined by law to restricted areas within the States and subsequent territories set aside for Aboriginal people.  White people were, by law, prevented from associating with and wandering with Aboriginal people. 

Aborigines of Australia had no citizen or civil rights.  Aboriginal people were ‑ who were free from the reserves and who were not provided rations and earnt their own money were deemed free people, but if they choose to exercise their right to vote.  Under normal circumstances they had to be seen as franchised people under the State or territory laws. 

It is important to note that Aboriginal people have always had a choice as to whether they wanted to cast a vote.  It was not compulsory for Aborigines to vote.  Under the Commonwealth of Australia Constitution excluded our people and we were not counted as people in 1967, witness as a successful amendment that gave the Commonwealth National Government the right to include Aborigines in their law‑making process of Australia and to include them in the Australian Census.

The 1967 referendum was about freeing Australia from international embarrassment considering the international scrutiny that was occurring at the time.  The constitutional amendment did not give the Government specific rights for the National Government to pass laws for Aborigines.  The power to pass laws come under the new section that reads, ‘For any race it deems necessary.’

At what point in time did Aborigines become a citizen with or without his or her consent?  If Aboriginal people became citizens, under what law of Australia were they granted citizenship?  My people had never been offered naturalisation in Australia nor have we ever agreed to become recognised as Australian.  How did the Australian colonies and Federal Government acquire my people's patrimony? 

Given that there are ‑ the Crown's case is solely based on the assumption that I'm a citizen of Australia, that I seek the right to be heard on my argument that there is a constitutional question that must first be determined.  My constitutional question is two‑fold:  under what section of the Commonwealth of Australia Constitution did Australian Executive Government acquire Sovereignty over my ‑ over me considering my people were wards of the State of Queensland under the protection of the Crown?  And Mabo judgment 2 in 1992 confirmed that my people’s law and customs continue as a matter fact, and of law. 

Having held that this is the case, then the High Court of Australia creates a separation of rights and obligations.  That is my identity is of my people's nation.  I am not an Australian citizen.”[32]

[32]Transcript of the appellate proceedings, 1-10 to 1-11.  I have amended the submission as set out in the transcript where necessary to reflect the appellant’s actual words.

1. In essence her argument is that she is not an Australian citizen and as a result the court has no jurisdiction, she is not required to vote and she cannot be the subject of any penalty for failing to do so.  She confirmed in discussion with me during the appeal hearing that this is her position.

1. The appellant advised me that she had given notices of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth) to the several Attorneys-General. It subsequently became apparent that these notices related only to the proceedings in the Magistrates Court. I concluded it was prudent to delay my decision until such notices were given in relation to the appeal. Ultimately none of the Attorneys-General elected to intervene in the appeal.

1. In paragraph 1 of the introduction of the appellant’s submissions she states:

“… The submissions sets out below the constitutional grounds that s 186(1)(a) of the Electoral Act 1992 … does fail.”

1. In paragraph 2 she states:

“The Appellant’s constitutional challenge is based on the attached ‘NOTICE OF REBUTTAL OF CLAIM OF TITLE TO LAND AND CLAIM OF RIGHT’ with accompanying attachments.”

The notice referred to is part of the 23 page document mentioned in paragraph [36].

1. She continues, inter alia:

“· The above provides broad grounds of constitutional challenge. The desired outcome would be a clear and definitive interpretation of The Commonwealth Constitution, Part V, s 51(xxvi).[33]

·   The proper significance of the 1967 Referendum which has been obscured to some extent by popular myths.  It is, for example, widely believed that the Referendum was wholeheartedly supported by both sides of politics, that it ended legal discrimination, conferred the vote, equal wages and citizenship on Indigenous peoples, and that it permitted for the first time Commonwealth involvement in Aboriginal Affairs.  None of this was the case.”

She also asserts the referendum has not led to parity between Indigenous and non‑Indigenous people in social, economic and health status.

[33]Section 51 of the Commonwealth of Australia Constitution Act 1901 (Cth) provides:

“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:

(xxvi)the people of any race for whom it is deemed necessary to make special laws.”

1. It is submitted that:

“The Aborigines were barely mentioned in the deliberations of the Federal Conferences and Conventions of 1890, 1891 and 1897-98 … The resulting Constitution of 1901 mentions Aboriginal people only twice, and on both occasions it does so in a negative fashion.  Section 51, in its original form, provided that:

‘The Parliament shall, subject to this Constitution, have powers to make laws for the peace, order and good government of the Commonwealth with respect to:
     …

(xxvi)The people of any race, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws.’

Section 127 provided:

‘In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, Aboriginal natives shall not be counted.’

Terra Nullius said that the land was vacant and un-inhabited (did this mean that we aboriginals did not exist?) What was our relationship to the Commonwealth Constitution?”

1. The submission then sets out three explanations for the wording of s 51 before stating, “The Commonwealth in its early years repeatedly passed legislation (for invalid benefits, voting franchise, etc.) which explicitly excluded Aboriginal people from its provision.”

1. The appellant goes on to ask, “What explanation could be offered for the wording of s 127?”  She answers this with the following question:

“Aboriginals had been exempt from inclusion in the census and it was intended that Aboriginal people have no role in Federal politics, and as the census was the basis of how many seats a State had in the Senate, was this the reason decided not to count, for this purpose, the Aboriginal people?”

1. The submission sets out the following “Statement of Argument” under the heading “Constitutional arguments”:

“·  Our argument is that Part VI … of the Commonwealth Electoral Act 1918 (Commonwealth) says that no aboriginal native of Australia shall be entitled to have his name placed on or retained on any roll or to vote in any Senate or House of Representative election unless so entitled under s 41 of the Federal Constitution.

·   This is under Part VI – Qualifications and Disqualifications for enrolment and for voting.

· 41 of the Constitution says – No Adult person who has or acquires a right to vote at elections for the more numerous House of Parliament shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either house of the Parliament of the Commonwealth.

· s 127 of the Constitution (which is now deleted) said:- In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, Aboriginal Natives shall not be counted.

·   Remember Terra Nullius said that the land was vacant and un‑inhabited so therefore we the Aboriginals did not exist.

·   Given the nature of the times and the fact that the Commonwealth in its early years repeatedly passed legislation for invalid benefits, voting franchise, etc., which explicitly excluded aboriginal people from its provisions, the assumption that we did not exist because of Terra Nullius sounds compelling.

· Remember the Commonwealth of Australia Constitution Act commences with the words … ‘Whereas the people…’ thus the legitimacy of the Australian Constitution derives its origins as an instrument approved directly by the people who held allegiance to the British Crown. This fundamental aspect of its legitimacy is confirmed by the provisions for change contained in s 128, which insist that the Constitution may be changed by the people, acting by Referendum. The reference to ‘the people’ recurs in other sections.

·   The Constitution currently does not recognise the status of ‘Australian citizen’ or acknowledge the notion of separate citizenship of Australia.  People are recognised as subjects of the British Monarch.  The Annotation of 1901 recognises the people as ‘citizens of the Commonwealth’ equal to British subjects.

·   It was intended that Aboriginal people have no role in Federal politics and as the census was the basis of how many seats a State had in the Senate, it was decided not to count, for this purpose, the Aboriginal people.

· Before Federation, both women and Aborigines had been entitled to vote in South Australia and in order to preserve the rights of South Australian women, s 41 of the new Commonwealth Constitution provided that ‘no adult person’ entitled to vote at State elections should be prevented from voting at Federal Elections. The Commonwealth Franchise Act 1902 (Commonwealth) extended the Federal Franchise to women. A proposal to include in that Act an extension of Franchise to Aborigines was put, but many in the House of Representatives argued against it [examples of Isaac Isaac and H.B. Higgins are quoted]. The proposal was defeated and, in the end, section 4 of the 1902 Act specifically denied the voting rights of ‘Aboriginal natives of Australia … unless so entitled under s 41 of the Constitution.’

·   In R v Pearson; Ex parte Spika (1983) 152 CLR 254, Justice Murphy argued that s 41 of the Constitution provided that as other states extended the franchise to Aborigines, Aborigines would automatically become entitled to vote in Federal elections as well. The majority in the above case, however, along with legal commentators earlier this century, accepted a narrower interpretation of s 41 – it was purely a transitional provision relevant to the first federal election in 1901, of no import after the Commonwealth Franchise Act 1902. Further evidence that the Commonwealth was intent at the beginning of the century on excluding Aborigines from their sphere of responsibility might be found in the Invalid and Old-Age Pensions Act 1908, s 16 of which explicitly lists ‘Aboriginal natives of Australia’ among those people who ‘shall not be qualified to receive an old‑age pension.’

· It is clear that most Aborigines were simply not being allowed to vote in State elections. Some Aborigines even lost their voting rights in the 1920s and 1930s. Even South Australian Aborigines enrolled before 1902 were having their right to vote taken away. In 1921 South Australia adopted a joint Federal-State Electoral roll, as did other states during the 1920s, and the wording of the new enrolment form, implied no Aborigines, Asians, or Pacific Islanders could vote in Commonwealth Elections. On the new, joint roll a small circle beside any name indicated ‘not entitled’ to vote for the Commonwealth. Although many exclusions of long enrolled voters were almost certainly unlawful under any interpretation of s 41 of the Constitution, exclusions multiplied in the 1930s.

·   In 1945 the Chief Electoral Officer had declared that to vote in Federal Elections an Aboriginal must not only have obtained State enrolment before the Franchise Act of 1902 was passed but must have ‘retained that enrolment continuously since’.  In the early – 1940s Professor Elkin at the University of Sydney questioned the Electoral Officers’ interpretation of the law and his case was taken up by Group Captain Thomas White … The then Minister for the Interior, Herbert Johnson, declared that he was interested in extending the Franchise ‘as early as possible to Aborigines whose education has reached a standard that they are able to appreciate its value’.  Sir Robert Garran, Solicitor‑General from 1916-1932, had instructed the Electoral Officer to interpret s 41 as he did.  Remember, Sir Robert Garran was one of the 2 authors of the 1901 Annotation of the Federal Constitution …”

1. The submission concludes:

“In response to you ‘Courts of a state cannot interfere with or question an ‘act of state’ or of ‘sovereign power’ – Under international law, sovereignty is the most extensive form of jurisdiction, in general terms it denotes full and un-challengeable power over a piece of territory and all persons from time to time therein.

We are asking that the proof be given to us that we agreed to forfeit our sovereign status through out prior consent to swear allegiance to a British Monarch/Crown willingly.  And show us the laws to enact such judicial control, whether these laws are/were Imperial, Colonial or Legislative.

We want to end the confusion of the contradictions and have Part V, 51, s(xxvi) clarified with a clear and precise and proper interpretation (which can only be done in The High Court of Australia).”

1. As was the case with the documentary submission relied on in the Magistrates Court, the 23 page submission relied on by the appellant in support of this appeal is headed:

“           

Response to
PUBLIC OFFICER
And a Rebut of Contract
To the following: ”

The respondent is identified by name as the person acting as “PUBLIC OFFICER”.

1. By this document which is dated “20 May 2013”[34] she gives notice that “I, Nerissa, the Sovereign Tribal Woman of Ngadjon-Jii, is waiving my right to be recognised as an ‘entity’ in the eyes of the law.”  She then declares all and any persons (which are identified by reference to “Nerissa Anderson”) that were created for her to hold as trustee by the State of Queensland, the Commonwealth of Australia, the Commonwealth or the Holy See, any corporate governance in the purported right of the Crown, the city of London, the Vatican City, District of Columbia, the United Nations, or any Corporate trusts, subsidiaries or agents of above corporations, have been revoked and returned unclaimed by her to the Governor-General of the Commonwealth of Australia on 17 April 2013.

   [34]I note the 25 page document relied on in the Magistrates Court proceedings was dated 4 June 2013, which was the date of the proceeding.

1. She goes on to give notice that she is not an entity in any corporate society as defined under the Corporations (Queensland) Act 1990 or the Queensland Investment Corporation Act 1991[35], and she is not a citizen or resident in any state or district the Crown purports to administer.  She proceeds to give various forms of notice concerning “any State owned Entity, Nerissa ANDERSON, the Queensland Birth Instrument Entity, Nerissa ANDERSON 85/53615 or any other fictitious person, Nerissa ANDERSON”.

   [35]This is repeated subsequently in the document.

1. Further she gives notice:

“I am never performing any function of government, or acting in any other capacity other than in the capacity of the Ngadjon Trial woman, living peaceably on Tribal land as a member of the Ngadjon Tribe as applicable under Ngadjon Tribal Lore.

…

The 1967 Referendum did not confer citizenship to me.   Aboriginals had an optional right to vote if they wished to and they were not obliged to serve the country of Australia when conscription was compulsory.

The 1901 Federal Constitution said we could not be counted for reasons of determining the population and the constitution at that time also said that laws could not be made for the Aboriginal people.

The 1967 Referendum said that the Federal Parliament could make laws until whence we returned to our country of origin, which my people did after they were released from the missions in 1967, so therefore, the federal parliament cannot make special laws for my people.

Mabo 2 ruling we have property rights under common law according to our law and custom.

I, Nerissa Anderson, herein state that I am a Spiritual Being and a true Ngadjon Tribal Woman.”

1. The reference in the heading to “a Rebut of Contract” is identified in terms of “your offer of contract (Summons to Appear at Charters Towers Magistrates Court …) for alleged failure to vote.”

1. The appellant concludes her giving of notice with:

“this offer to/of contract was forced upon me due to my alleged refusal to follow an order to vote under Section 142A of the Justices Act 1886 and s 186(1)(a) of the Electoral Act 1992 on 24 Marc (sic) 2012 (these acts are not applicable to me) without my Consent.”

1. To adopt the language of Morrison JA in R v Anning[36] there are aspects of this document which suggest a haphazard approach to its compilation and suggest it has been assembled by a random cutting and pasting from some other documents which have nothing to do with this appeal.[37] 

   [36][2013] QCA 263 (Fraser JA and McMurdo J agreed with these reasons). The appeal was coincidentally held on the first day of the appeal before me. Judgment was delivered on 17 September 2013.

   [37]Ibid at [33] and [35].

1. Anning is of particular relevance to the present appeal because the Queensland Court of Appeal was also concerned with a response which included the heading “NOTICE OF REBUTTAL OF CLAIM TO TITLE TO LAND AND CLAIM OF RIGHT” which advanced similar arguments to those advanced in the document relied on before me.[38]  A further similarity is that court was concerned with an appeal by a person with a connection to Mareeba and evidence was given by his aunt, Isobelle Anderson.  It seems beyond coincidence that the name of the witness to the appellant’s electoral claim form is either Isobelle or Isabelle Anderson and this person gives a Mareeba address.  The limited level of understanding exhibited in argument before me by the appellant as to the contents of the document relied on strongly suggests it has been compiled by another person on her behalf or has been adapted from a document prepared by another person.

   [38]I have read the document filed in the Court of Appeal.  It contains the same 141 paragraphs with the exception of the insertion in the document before me of reference to the Ngadjon Tribe and related terms for the Yidinji Tribe and related terms.

1. Despite this heading, as was the case in Anning no aspect of the appeal concerns a claim of right to the title of land.   Also as in Anning, another part of the document[39] seems to include an argument based upon the operation of the “Acts Interpretation Act 1989 NSW”[40] without identifying in any way why that New South Wales statute would have application in Queensland.[41]

   [39]As with the response in Anning this commences at [116] of the document.

   [40]As Morrison JA noted in Anning at [36] it is assumed this was intended to refer to the Interpretation Act 1987 (NSW).

   [41]Anning at [36].

1. Further as was the case in Anning, another part refers to the “Queensland Corporations (Queensland) Act 1990” in order to develop an argument expressed in these terms:

“The following ‘Act’ clearly states that no private person is subject to any rules of this Private Corporation, which is called ‘Queensland Government’ registered in Washington DC as ‘STATE OF QUEENSLAND’; CIK: 0001244818,

…

Private Natural People are NOT within the Corporation Seal of the Queensland Government and the Queensland Government Copyright”[42]

[42]This was pages 3-4 of 23 of the document before me.  See Anning at [37].

1. I adopt his Honour’s observation that this part of the submission is a meaningless jumble of ideas.[43]

   [43]Anning at [38].

1. Yet another feature identified by his Honour in Anning which is common to the document in the present appeal is the development of an argument against “the Crowns’ claims to any and all forms of interest in the lands.”  In that case it was the lands of the ‘Yidindji people’.”[44]  In the present case it is the lands of the Ngadjon people.  In each case it is asserted that “absolute title over the lands on this continent has remained with the Sovereign Tribes of this continent” and goes on to make an argument against the forcible removing of the Yidindji/Ngadjon Tribal sovereignty over their tribal lands.  Again his Honour’s observation that no aspect of the appeal concerned a claim to land or to remove anyone from their land is applicable.[45]

   [44]As with the response in Anning this argument commences at [17] of the document.

   [45]Anning at [39].

1. Other examples of the haphazard cut and paste approach to the document relied on in this appeal are the repetition of most of the terms of paragraph [34] in paragraphs [98]-[105] of the document; and the reference to the Bar-Barum Tribes’ lands or Tribal Moiety at paragraphs [123]-[124] instead of the Ngadjon Tribe.

1. Of more relevance to the present appeal is the argument that the Queensland Government does not have the lawful right to summons the appellant to appear in a local Magistrates court.  It is asserted “The JUSTICES ACTS, 1886 TO 1932, THE JUSTICES ACT OF 1886 … have been made illegal and invalid by Mabo 2 as it is a colonial act.”

1. The appellant advances the argument that all authorities and powers provided by any statute which has been given royal assent by the Monarch of the UK Parliament, the Governor-Generals of the Commonwealth of Australia and by the Governors of the States of the Commonwealth apply in respect of British subjects only; and the Tribes of this Pacific Island continent, particularly the Ngadjon, are not British subjects.

1. It is then argued that the Pacific Islanders Protection Act 1875[46] limited the UK Monarch’s jurisdiction for Australia, to applicability in respect of British subjects; and the intention of this legislation was to prevent the unlawful usurpation of the Tribes’ sovereignty. It is submitted the legislation remains enforceable “in respect of the Crown and British subjects and THEIR administrative parliaments and THEIR agents and agencies on this Pacific Island continent when the PARLIAMENT OF THE COMMONWEALTH made an unlawful attempt to repeal [it]” by Schedule 2 of the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth).

   [46]The document identifies the Pacific Islanders Protection Act 1873 and the Pacific Islanders Protection Act 1875 as the PIP Acts.  The appellant incorrectly refers to each as the Pacific Islander Protection Act.  I have chosen to cite them throughout these reasons by their correct title.

1. In any event, it is asserted that whether or not this legislation has been lawfully repealed, there has been no knowing informed act of acquiescence of sovereignty by the Ngadjon Tribal Moiety, before or after the attempted repeal.  The Crown’s parliaments have never sought or obtained from the Tribes their fully informed knowing consent to legislate on their behalf.  Accordingly, the right of the Tribes to have their sovereignty and dominion over their land protected from usurpation by the Crown or its agents is not affected by this, and the State parliaments must comply with this. 

1. The appellant submits the 1967 referendum did not affect the independence nor sovereign or legal status of the Tribes. This is because it is argued the referendum was reserved exclusively for the participation in, and determination of the proposed Constitutional amendments by, those British subjects present upon the Pacific Island continent of Australia to whom the Constitution, as a UK statute, applied. On the other hand, it is asserted the Constitution, did not apply to Tribes either to their benefit or detriment.

1. It is also argued that the Australia Act 1986 (Cth) has no legal effect in respect of the Tribal peoples of Australia as it is a statute which binds the UK people only.

1. Accordingly it is said, no authority that is an authority vested in the Monarch of the UK parliament or is an authority created by or vested in the purported Queen of Australia is valid, legal or binding on the Sovereign Tribes of the Pacific Island Continent of Australia.

1. It is asserted that the Queen of Australia is an illegal person; but neither this title or “Queen of the United Kingdom in Australia” extends a right of sovereignty over the Tribes.

1. It is also submitted the Queen cannot, under UK law, bestow any commissions of appointment, including Writs of Commission for “Australian” magistrates etc, without approval of UK Parliament. It is said the last purportedly valid appointments made by a British Monarch were made by Queen Victoria who died in 1901; and all bills presented to Australian parliaments since that time have never received “Royal Assent” as required by the Commonwealth Constitution, and have never become Acts.

1. The document includes the following submissions:

“94:The Constitution does not contain any element/s of Sovereignty as it was never meant to grant or provide for any claim by the UK to sovereignty over this Pacific Island Continent as to do so would be an attempt to usurp the Sovereignty of the Tribes that had previously been statute barred by the UK Parliament.

…

97:The Tribes of this Pacific Island continent are not, and never have been, legally required to acknowledge, be subservient to, or be in anyway obliging to or governed by either:

97.1the monarch of the UK, and or

97.2any of their ‘heirs and successors’;

97.3any agent nor agency, for or of the Collective Crown jointly or severally, whether as the Monarch of the Parliament of the UK or the purported monarch of the Commonwealth of Australia.

…

106:The statutory limitations to the Crowns’ right to extend or construe to extend it’s UK parliaments’ Sovereignty or dominion over the Tribes and the Tribal lands remains binding on the Crowns’ Australian Parliaments as despite the claim that the parliaments of Australia have attained political/parliamentary sovereignty they cannot claim sovereignty over the Tribes and Tribal lands as that Sovereignty has never vested in the UK parliament in order for it to pass any form of sovereignty onto ANY ‘Australian’ parliament.

107:The Crowns parliaments have never sought nor obtained from the Tribes their fully informed knowing consent to legislate on the Tribes’ behalf.  It being trite fact that the vast majority of Tribal people have no competent comprehension of the statutes nor their implication, let alone having ever legally, knowingly acquiesced to the same.

108:The Collective Crown has acted on the presumption to have had the right to legislate for and in respect of the Tribes without the Tribes’ consent and competent comprehension of the Collective Crowns’ true nefarious intentions.

109:The presumption is rebutted by the Tribes and is unsustainable at law.

110:The Tribes, jointly and severally, have rebutted the presumption made by the Collective Crowns’ parliaments that they have now, or at any time have had, a consent or any other authority to legislate for and or in respect of the Tribes through Public Notice and Ceremony.

…

115:… the right of the Tribes to have their sovereignty and dominion over their lands protected from usurpation by the Crown and its’ agents is not affected by the repeal of the PIP Acts.

…

117:… the parliament does not have a right to exceed the statutory limitation of the PIP Act in any construction of any instrument nor in the performance nor exercising of ANY powers, including the granting of such powers to parliaments agents, namely police, magistrates, Departmental officers etc, to act beyond such limitations.

…

119:… the States’ parliament does not have a right to exceed the statutory limitation of the PIP Act in any construction of any instrument nor in the performance nor exercising of any power nor authority, including the granting of such power/authority to the parliaments agents including but not limited to police, magistrates, Departmental officers etc, …

…

121:… the States’ parliament must comply with the underlying construction and intent of the PIP Act which was clearly to protect Tribal Sovereignty, particularly given the stated limitations of the parliaments powers being over British subjects only, and the VERY clearly stated protection of sovereignty and dominion to the Tribes within the text of the PIP Act.

122:The Published Report on the Enquiry Into Aboriginal People Wherever British Settlements Were Made … held by the UK parliaments’ House of Commons, clearly states the UK parliament knew and accepted it did not have Sovereignty over this Pacific Island continent as at 1840.

123:There is no legal instrument in existence which evidences a knowing and lawful acquiescence of Sovereignty, title nor dominion over the BAR-BARUM Tribes’ lands or people by the Bar-Barum Tribe Elders Council, whether on so called ‘just terms’ or otherwise.

124:The Collective Crown, jointly and severally has no lawful title or ownership rights to or in respect of the lands which lands remain the indisputable Real Estate of the Bar‑Barum Tribal Moiety and subject to their laws only.

…

126:… given the Religious Spirituality of the Ngadjon Tribal Moiety is centred upon the possession and occupation of Tribal lands as an integral part of the Tribes’ spirituality, it is an understood and trite fact that the Ngadon Tribal Moiety view themselves as the inalienable and permanent Sovereigns of their area of this Pacific Island continent in accord with their status provided by the Creator.

127:No UK monarch has the right under any statute to steal that which is not His/Hers.  This includes a prohibition from stealing from the Tribes what was given to them by their Creator Spirit, including the people themselves.

128:It is not the lawful prerogative of the UK parliament nor its subsidiary Australian parliaments to usurp the sovereignty of the Tribes or to otherwise dictate the status of the Tribes unless the UK and or Australian parliaments are presuming a right of ownership of the Tribes jointly and severally.

…

134:If any legal right of Sovereignty over the Tribes on the behalf of the UK parliament, its’ monarch or the Crown in any capacity or right does or did not exist, there has never been any lawful reassignment of such purported right of Sovereignty from the UK parliament, monarch or the Crown to the Australian parliaments.

135:The law of the Tribes is still, to this day, recognised by the Commonwealth as evidence by Form ‘b’ at question 16 on page 4 of the current (AS AT 7^th September 2011 at 12:19:55 AM) Australian Government CENTRELINK ‘Claim for ABSTUDY’ form … - the question asks:

What is your CURRENT relationship status?

and the check box answer number 7 is:

‘married or recognised as married under Aboriginal/Torres Strait Islander law.’

136:This request by the Commonwealth parliament (whether or not vicariously through its’ government) for this information in respect of the recognition of a marriage Created by the authority of Tribal law, is a public record of the acceptance and recognition by the Crown of the fact of the continued existence of Tribal law, with full faith and credit being necessarily due to the provisions of that Tribal law by all courts and judges of the Commonwealth and States in the right of the crown.

…

139:At no time has there been provided to the Ngadjon Tribal Moiety a competent and truthful expose’ true intention of the Crown and its’ fraudulent attempt to usurp the Sovereignty of the Ngadjon Tribal Moiety.

140:The Collective Crown has at all material times, through the use of threats, intimidation and genocidal actions, held the Ngadjon Tribal Moiety in a comparatively poor, uneducated (in the Crowns ways) and indefeasible state, rendering the Ngadjon Tribal Moiety incapable of comprehending or answering the Collective Crowns’ claims with those claims being made variously on the part of the Crown in various rights and capacities and in such a manner as to confuse the Ngadjon Tribal Moiety as to exactly which legal ‘person’ or capacity the Ngadjon Tribal Moiety should challenge the Collective Crown.

141:To remove or attempt to remove the status of Sovereignty from the Ngadjon Tribal Moiety and the records is to ethnically cleanse or attempt to ethnically cleanse the Ngadjon Tribal Moiety from the record.”

1. To again adopt the approach of Morrison JA in Anning in stating the effect of a similar document, the point of the document is to assert that the State of Queensland has no power to legislate in respect of the Ngadjon Tribe, and since the appellant is a member of that Tribe, she is not subject to those laws.[47]

   [47][2013] QCA 263 at [41].

1. As was also the case with the submission in Anning the final aspect of the document relied on by the appellant is a declaration that she does not consent “for this matter to be heard in any court other than a Ngadjon Tribal Council of Elders Court or Common Law court de-jure with a jury of 12 peers.”[48]  She went on:    

   
   
   

“No invitation to attend any other court will be accepted.  No legal jurisdiction other than the Ngadjon Tribal Council of Elders Court or Common Law will be recognised or understood.”[49]

[48]Ibid at [8] where the reference was to the “Jidindji Tribe”; see page 23 of 23 of the document before me.

[49]Ibid.

1. The appellant then, having declined “any invitation to attend any other court other than that of Ngadjon Council of Elders Court or Common Law jurisdiction”[50], expressly stated she did not consent to any plea made on her behalf, to any judgment against her and did not consent to any hearing without her being present.

   [50]Page 23 of 23 of the document before me.

1. As she conceded during the hearing of the appeal the logical extension of her argument is that she is not subject to any laws of Australia, including for example the criminal laws.  Therefore her position is that politically and legally she cannot be prosecuted before an Australian court for breaking the laws of the Commonwealth or the States of Australia at least for offences created after 1901.  For example, she could not be prosecuted under Queensland law for assaulting another person.

Respondent’s submissions on the appeal

1. In relation to ground 1 of the appeal that the appellant did not make a plea and or a plea was entered on her behalf against her will, Mr Ling notes the basis on which she did not enter a plea was she was not an Australian citizen, but an intermediate citizen under international law.  This is a plea to the court’s jurisdiction.

1. He submits in line with s 603 of the Criminal Code 1899 (Qld)[51] the learned acting magistrate considered the fact the appellant did not enter a plea and was satisfied the court had jurisdiction.

   [51]This provides: “On a plea to the jurisdiction of the court, the court is to proceed to satisfy itself in such manner and upon such evidence as it thinks fit, whether it has jurisdiction or not, and may ascertain the fact by the the verdict of a jury or otherwise.”

1. It is submitted his Honour validly considered this plea to jurisdiction, the submission she is not subject to the laws of Australia and whether the laws of Queensland and Australia are valid.  Mr Ling argues the ruling was correct based on the respondent’s submissions and authorities.

1. In his submission Mr Ling observes the logical effect of the applicant’s argument that as a member of the Ngadjon Tribe, she is not an Australian citizen and not subject to the laws of Queensland is any claim of sovereignty or jurisdiction over her by an Australian court, is of no effect.

1. He submits there is a long line of authority for the proposition that an “act of State”, including a declaration of sovereignty is a matter which “cannot be challenged, controlled or interfered with by municipal Courts”[52].

   [52]Salaman v Secretary of State In Council of India [1906] 1KB 613 at 639, see also at 640.

1. Reference is made to New South Wales v The Commonwealth[53] in which Gibbs J (as he then was) approved the following remarks of Diplock LJ in Post Office v Estuary Radio Ltd:       

   
   
   

“It still lies within the prerogative of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction.  For such extension the authority of Parliament is not required.”[54]

[53](1975) 135 CLR 337 at 388.

[54][1968] 2 QB 740 at 753.

1. Gibbs J went on to say with reference to Salaman v Secretary of State In Council of India:[55]

“The acquisition of territory by a sovereign state for the first time is an act of state which can not be challenged, controlled or interfered with by the courts of that state.”[56]

[55][1906] I KB 613.

[56](1975) 135 CLR 337 at 388.

1. Reference is made to the decision of Coe v Commonwealth of Australia[57] in which the High Court rejected the possibility of a subsisting Aboriginal claim to sovereignty.[58]  Gibbs J stated:

“The annexation of the east coast of Australia by Captain Cook in 1770, and the subsequent acts by which the whole of the Australian continent became part of the dominions of the Crown, were acts of state whose validity can not be challenged: see New South Wales v The Commonwealth (1975), 135 CLR 337 at p 388, and the cases there cited. If the amended Statement of Claim intends to suggest either that the legal foundation of the Commonwealth is insecure, or that the powers of the Parliament are more limited than is provided in the Constitution, or that there is an aboriginal nation which has sovereignty over Australia, it cannot be supported.  In fact, we were told in argument, it is intended to claim that there is an aboriginal nation which has sovereignty over its own people, notwithstanding they remain citizens of the Commonwealth; in other words, it is sought to treat the aboriginal people of Australia as a domestic dependent nation.

…

The aboriginal people are subject to the laws of the Commonwealth and of the States and Territories in which the respectively reside.  They have no legislative, executive or judicial organs by which sovereignty might be exercised.  If such organs existed, they would have no powers, except as the law of the Commonwealth, or of a State or Territory might confer on them.  The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.”[59](my emphasis).

[57](1979) 24 ALR 118; (1979) 53 ALJR 403.

[58]See R v Anning [20013] QCA 263 at [46] where part of the statement of Gibbs CJ is cited.

[59](1979) 24 ALR 118 at 128-129; 53 ALJR 403 at 408, Aickin J concurred. This was also referred to until approved in R v Buzzacott (2004) 149 A Crim R 320 at 322 and 325 where Connolly J said at [19] in the Supreme Court of the Australian Capital Territory:

“… as Gibbs J said in Coe, that a person of Aboriginal decent is subject to the jurisdiction of this court in respect of an alleged crime committed within the confines of the Australian Capital Territory in the same manner as any other person.”

In Coe v Commonwealth of Australia (1993) 118 ALR 193 at 199 Mason CJ cited the judgment of Gibbs J in the 1979 decision of Coe in observing that decision lends no support whatsoever to a subsisting Aboriginal claim to sovereignty, a claim which he said was rejected by all 4 Justices.  The judgment was again applied by Mason CJ in Walker v New South Wales (1994) 182 CLR 45 at 48.

1. Mr Ling refers also to the statement by Mason CJ in Coe v Commonwealth of Australia[60] that “Mabo (No 2) denied that the Crown’s acquisition of sovereignty over Australia can be challenged in the municipal courts of the Commonwealth.”[61]

   [60](1993) 118 CLR.193.

   [61]Ibid at 200.

1. In any event, he submits, it is not possible to apply to a court within a legal system to make a finding that he laws which legally establish it as a court are themselves invalid.  In support of this he refers to R v Buzzzcott[62] where after applying the principle set out in paragraphs [81]-[83] and [85] Connolly J said:

“Any legal system is based on a fundamental proposition that establishes the authority of the law… in any legal system there must be a starting point that cannot itself be challenged within the system. In our system the starting point is the sovereignty vested by the people in “the Crown” and set out in the Constitution of the Commonwealth of Australia. It is clearly not possible, in a court established pursuant to the constitution, being a court created to exercise part of the sovereignty vested in the Crown (in this case, being the sovereignty inherent in an assertion of criminal jurisdiction relating to an alleged theft occurring within the geographical jurisdiction of this court) to challenge the sovereignty of the court.  That much is established by Coe (1979), Coe (on behalf of the Wiradjuri tribe and Mabo, and from basic principles.”[63] (my emphasis).

[62](2004) 149 A Crim R 320.

[63]Ibid at 234 [14]. The reference to Coe (on behalf of the Wiradjuri tribe) is to the decision reported in (1993) 118 ALR 193.

1. Therefore it is submitted it follows this court has no power to make an order finding that the Crown’s acquisition of sovereignty over Australia is invalid and of no effect on the appellant.

1. Mr Ling next submitted that the sovereignty and the laws of the Commonwealth and State parliaments extends and applies to Indigenous persons.

1. In support of this proposition he first relies on the rejection by Gibbs J in Coe v Commonwealth of Australia[64] of the assertion that Indigenous people are not subject to the laws of the Commonwealth and of the States or Territories in which the reside as set out in paragraph [83].

   [64](1979) 24 ALR 118; 53 ALJR 403.

1. It is submitted that in the decision of Coe (on behalf of the Widadjuri tribe)[65] the High Court rejected any claim that Mabo v Queensland (No 2)[66] overturned this position.  As Mason CJ stated:

“Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia.  The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are a ‘domestic dependant nation’ entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law.”[67] (my emphasis)

[65]Coe v Commonwealth of Australia (1993) 118 ALR 193.

[66](1992) 175 CLR 1.

[67]Ibid at 200 (internal references omitted), cited in R v Anning [2013] QCA 263 at [48]. Mason CJ stated as set out in [84] that “Mabo (No 2) denied that the Crown’s acquisition of sovereignty over Australia can be challenged in the municipal courts of this country.”

1. Mr Ling submits this position was affirmed by the High Court in relation to New South Wales specifically and more generally in relation to other States in Walker v New South Wales[68] where as observed in Anning Mason CJ once again had to consider assertions of the sovereignty of particular Aboriginal people and rejected that assertion.[69]  Mr Ling relies on the following statements by his Honour:

   [68](1994) 185 CLR 45.

   [69][2013] QCA 263 at [50].

“The legislature of New South Wales has power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever.  The proposition that those laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected.  As Gibbs J (with whom Aickin J agreed) said in Coe v The Commonwealth:

‘The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside’.

In that case all the justices on appeal upheld the view which I had taken at first instance rejecting the plaintiff’s claim that sovereignty resided in the Aboriginal people.  There is nothing in the recent decision in Mabo v Queensland [No 2] to support the notion that the Parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent.  Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people.  Indeed Mabo [No 2] rejected that suggestion”[70] (my emphasis)

[70](1994) 182 CLR 45 at 48 (internal references omitted).

1. In Anning in addition to citing the highlighted passage of his Honour’s judgment set out in paragraph [90] reference was made to the following statement by Mason CJ:

“It is a basic principle that all people should stand equal before the law… The general rule is that an enactment applies to all persons and matters… just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose.”[71]

[71]Ibid at 49-50 (internal references omitted), referred to in R v Anning [2013 QCA 263 at [50].

1. It is submitted that in The Australian Workers’ Union of Employees, Queensland v State of Queensland; State of Queensland v Together Queensland, Industrial union of employees & Anor[72] the Queensland Court of Appeal affirmed that the same principles concerning the plenary powers of State Parliaments apply to the Queensland Parliament.  Particular reference is made to the judgment of the court (Holmes, Muir and White JJA) that:

   [72][2012] QCA 353.

“Chapter 5 of the Commonwealth Constitution concerns the States and preserves the former colonies as States of the Commonwealth as they were, with their laws ‘subject to this constitution’.

…

The Privy Council in McCawley v The King made abundantly plain that the Constitution Act 1867 (Qld) conferred unlimited constitutional power on the Queensland legislature … The legislature of Queensland was described by their Lordship as ‘the master of its own household’ except in so far as its powers in special cases were restricted: a reference to the Colonial Laws Validity Ad 1865 (Imp) concerning repugnancy with certain Acts of the British Parliament.

The passage of the Australia Act 1986 in both the United Kingdom and Commonwealth Parliaments removed any fetters remaining by virtue of the Colonial Laws Validity Act on the legislative reach of the State Parliaments save to the extent that the manner and form requirements relating to the constitution, powers or procedure of the Parliament of the State were required to be followed.

The Constitution Act 1867 (Qld) established and maintains the Legislative Assembly which is endowed with power ‘to make laws for the peace, welfare and good government of all the colony in all cases whatsoever…”[73]

[73]Ibid at [17] – [20]. (Internal references omitted).

1. On the basis of these authorities it is submitted, there can be no doubt about the validity of Queensland’s constitutional arrangements and the Queensland Parliament’s power to make laws concerning the elections in Queensland, and there is no constitutional basis for a defence against the charges brought against the defendants.

1. Mr Ling also submits the applicant’s arguments as to the invalidity of the EA on constitutional grounds are misconceived because:

(a)        she based her submissions on sub-s 51 (xxvi) of the Constitution Act as it stood prior to 1967.  The words upon which she relies (“other than the aboriginal race in any State”) have been removed; and

(b) she also based her submissions on s 127 of the Constitution as it stood prior to 1967. The whole section has been removed.

1. Further, it is submitted the appellant has misconstrued the effect of the amendment of sub-s 51(xxvi) of the Constitution, because:

(a)        prior to the amendment, the provision did not have the effect that the Commonwealth Parliament could not legislate generally, in respect of persons of the Aboriginal race, but only that it could not enact race specific laws in respect of such persons;

(b)        the removal of the words “other than the Aboriginal race in any State” permits race specific legislation in respect of persons of the Aboriginal race to be enacted;

(c)        sub-s 51(xxvi) now allows the Commonwealth Parliament to make special laws relating or applying to people of any race (including enacting laws for the benefit of Aboriginal people[74]); and

(d)        sub-s 51(xxvi) does not operate in anyway to remove any constitutional rights of people of any race (including Aboriginal people).

[74]Lumb & Moens, The Constitution of the Commonwealth of Australia, 7^th Edition, 2007, Butterworths at 161[322].

1. It is submitted prior to its repeal s 127 of the Constitution did not have the effect that the aboriginal natives to which it referred were not subject to the laws of the Commonwealth Parliament.

1. Therefore it is asserted that the appellant’s submissions relying on these provisions are not relevant to the determination of the current appeal.

1. Mr Ling also refers to the argument that most Aborigines were not allowed to vote in State elections. He addresses the appellant’s submissions concerning s 41 of the Constitution[75] and the effect of its interpretation by the High Court in R v Pearson; Ex parte Spika.[76] He submits this decision does not assist the appellant’s argument because it simply held that s 41 was intended only to preserve the right of persons to vote at elections for either House of the Parliament of the Commonwealth which was in existence when the Commonwealth Franchise Act 1902 was passed. There after it was this legislation which determined who could vote at elections of the Commonwealth Parliament, and s 41 is of little utility.[77]

   [75]Section 41 of the Constitution provides as follows:

   “No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues be prevented by any law of the Commonwealth from voting at elections for either House of Parliament of the Commonwealth.”

   [76](1983) 152 CLR 254.

   [77]Particular reliance is placed on pages 260 and 279 of the decision.

1. It is submitted that s 41 cannot be construed to be the source of a right to vote.[78]

   [78]This in accordance with the decision of Gibbs CJ, Mason and Wilson JJ in R v Pearson; Ex parte Spika (1983) 152 CLR 254 at 260 where it is said “Section 41 does not in terms confer a right to vote.”; and it is also in accordance with the judgment of Brennan, Deane and Dawson JJ at 278.

1. Mr Ling also argues that as s 41 operates to preserve a person’s right to vote at Commonwealth elections, it has no operation concerning the right to vote in State elections, and as such neither it nor R v Pearson; Ex parte Spika is relevant for consideration in the present appeal which relates to the EA of the State of Queensland.

1. Mr Ling also addressed the appellant’s references to the CEA. It is submitted this is not relevant for consideration in this appeal because it has no effect on State elections which are regulated by the EA in Queensland.

1. He also submitted that the appellant’s references to the Commonwealth Franchise Act 1902 (Cth) are not relevant to the appeal because it was repealed in 1918 and replaced by the CEA.[79]

   [79]Section 3 of the CEA.

1. With reference to the appellant raising the issue of her status as a citizen and seeking to be shown where she has ceded her sovereignty, the respondent emphasises on the basis of the appellant’s enrolment claim form (Exhibit 6) there is evidence that on 2 May 2001 she made a declaration she is an Australian citizen. It is submitted there is no evidence she has taken the requisite steps to give up or renounce her Australian citizenship, including completing and lodging a Form 12B (Application for Renunciation of Australian Citizenship) with the Department of Immigration and Citizenship.

1. Accordingly it is submitted the appellant’s argument she is only a Spiritual Being and sovereign person and not an Australian citizen is misconceived.

1. In relation to ground 3 of her appeal the respondent notes the appellant does not dispute her identity as the declarant on the enrolment claim form but relies on a failure by the learned acting magistrate to consider that she was not offered any alternatives and was not advised of any rights she may have if she refused to sign it.

1. The respondent observes the appellant did not object to the tendering of the enrolment claim form as Exhibit 6, elected not to cross-examine the witness about it, and elected not to adduce any evidence to put forward any excuse by way of defence to the charge in relation to it.

1. It is also submitted:

(a)        this appeal is not the proper forum to explore the alleged existence of any wrongful omission at the signing of the appellant’s enrolment claim form, some 11 years ago;

…

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.’”

1. Consequently Anning’s appeal from his conviction on a single count of unlawful use of a motor vehicle was dismissed.

1. One of the decisions referred to by his Honour as having adopted the decision of Mason CJ, in what he described as the later edition of Coe[91], was R v Buzzacott.[92]

   [91](1993) 118 ALR 193.

   [92](2004) 149 A Crim R 320.

1. In Buzzacott the appellant’s argument that the Supreme Court of the Australian Capital Territory lacked jurisdiction to deal with him because of his status as an Aboriginal Australian related to an allegation of theft contrary to Commonwealth law.  This was based on the assertion that courts and governments of Australia have no sovereignty over persons of Aboriginal origin.  As was the position in Anning[93] Connolly J recognised this argument had been repeatedly rejected by the courts.[94]

   [93][2013] QCA 263.

   [94](2004) 149 A Crim R 320 at 322 [5].

1. In the course of his decision Connolly J identified the reasons why the discredited legal doctrine of terra nullius which is relied on by the appellant in both her oral and written submissions is irrelevant to the determination of this appeal.  After referring to the statement by Brennan J in Mabo (No 2)[95] that “the fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country”[96] Connolly J said:

“While Mabo established the basis for continuing native title claims under Australian law, it clearly stands as authority contrary to the proposition that there is some form of continuing ‘sovereignty’ contrary to the sovereignty vested in the Commonwealth of Australia over the whole of the geographical entity of Australia, and indeed the surrounding seas.”[97]

[95](1992) 175 CLR 1.

[96]Ibid at 42; see R v Buzzacott (2004) 149 A Crim R 320 at 322 [5].

[97]R v Buzzacott (2004) 149 A Crim R 320 at 322 [6].

1. Justice Connolly went on to state:

“The established legal doctrine is that the acquisition of sovereignty by the Crown is not subject to challenge in a domestic court. It is a proposition both of clear authority and logical necessity. Any legal system is based on a fundamental proposition that establishes the authority of the law.

…

The underlying concept is the same - in any legal system there must be a starting point that cannot itself be challenged within the system. In our system the starting point is the sovereignty vested by the people in ‘the Crown’ and set out in the Constitution of the Commonwealth of Australia.”

1. Of relevance to the appellant’s reference at paragraph 140 of her submission[98] to the Collective Crown’s genocidal actions towards the Ngadjon Tribal Moiety, Connolly J said:

“Whatever argument the accused may have as to whether or not the conduct of 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.”[99]

[98]See paragraph [71] of this judgment. See also the related references to ethnically cleansing the Ngadjon Tribal Moiety at paragraph 142 of the submission.

[99](2004) 149 A Crim R 320 at 325.

1. The crux of the appellant’s argument that she is not an Australian citizen bound by Australian law and as such the Magistrates Court had no jurisdiction to try the case against her of failure to vote at an election without valid and sufficient excuse, contrary to s 186(1) of the EA, having no substance for these reasons, I conclude that the court did not lack jurisdiction for the reasons advanced by her.

1. Further the enrolment claim form, which by virtue of s 155A(2) of the Evidence Act 1995 (Cth) is presumed to be the extract from the Australian Electoral Commission computer records which it purports to be, is evidence that on 2 May 2002 the appellant completed and signed it and thereby stated she was an Australian citizen and eligible to enrol for Federal and State elections. This document was tendered without objection. She did not deny that she was the person who completed and signed it. She adduced no evidence to the contrary. The manner in which she has expressed grounds 3 and 4 of her appeal involve an implied acceptance that she did so.

1. For these reasons the learned acting magistrate having proceeded in accordance with s 603 of the Criminal Code 1899 (Qld) to determine the jurisdictional issue was correct to dismiss the appellant’s challenge to the court’s jurisdiction and to proceed to enter a plea of not guilty on her behalf.

Grounds 2 to 4 – issues concerning the enrolment claim form number 12177067

1. Count 2 is not in reality a ground of appeal.  It is a statement of fact that the enrolment claim form was part of the evidence before the learned acting magistrate.

1. Grounds 3 and 4 are the real basis of the appeal in relation to this document.

1. For completeness I observe the last sentence of ground 4 addresses a different issue by raising the severity of the sentence imposed.

1. Although the appellant states in ground 3 that she was not offered any alternatives and was not advised of any rights she may have if she refused to complete and sign the form she gave no evidence of this before the Magistrates Court.

1. The document was tendered without objection by her.  When the acting Magistrate asked her, “Is there any objection, Ms Anderson?” she replied, “No sir”.  She elected not to cross-examine the witness who produced the document in relation to it.  She also elected not to adduce any evidence.  She did not address the court but again relied on the 25 page document which she had submitted to the court as her printed argument on the jurisdictional issue.  This document makes no reference to the issue raised by ground 3.

1. The document containing the submissions she relies on in support of the appeal also makes no reference to the issue raised by this ground.

1. The only reference to the basis of this ground occurred during the following exchange with me during the hearing of the appeal:

“APPELLANT:  Well, I don’t consider myself as an Australian citizen.  I consider myself as a citizen of my Njulnjul (sic) tribe.

HIS HONOUR:  Well, that’s not the effect of the electoral document you filled out, is it, in 2002, where you tick ‘yes’ to the question, ‘Are you an Australian citizen?’  So, in 2002 you must have considered yourself an Australian citizen.

APPELLANT:  Yes, at that time I was still in high school and the electoral people came into the high schools and it was told to us at that time this is what you must do.  So, being underage in high school, I thought that’s what I must do.  And now I am of age, I’ve realised I had the right.  I did not have to sign any forms.

HIS HONOUR:  All right.  You were 17 years of age when you signed that form, weren’t you?

APPELLANT:  Yes, sir.

HIS HONOUR:  All right.  Is there anything else you want to say to me in support of your argument that the conviction should be set aside?

APPELLANT:  No, thank you, sir.”

1. However beyond this statement from the bar table, the appellant did not adduce any evidence to this effect before me. No leave was sought under s 223(2) of the JA for fresh, additional or substituted evidence (“new evidence”) to be adduced. Therefore the appeal proceeded on the evidence before the Magistrates Court.

1. In this case my review of the evidence does not require me to weigh conflicting evidence in order to draw my own inferences and conclusions.  The evidence consists of he unchallenged documentary evidence and the unchallenged evidence of Mr Huey.

1. There is no evidence before me of any omission to offer any alternatives or advice about any rights the appellant may have had if she had refused to complete and sign the form in 2002.  There is only the unsworn statement which she made from the bar table.

1. Therefore this ground of the appeal has not been established.

1. For completeness I observe that the appellant was entitled to be enrolled as an elector when she was 17 years of age.  This is a provisional enrolment.

1. As set out above a person is entitled to be enrolled for an electoral district under s 64(1)(a)(i) of the EA if the person is entitled to be enrolled under the CEA for the purposes of that Act.[100]

   [100]See paragraph [113] of this judgment.

1. Section 100(1) of the CEA provides that a person who has turned 16, but is under 18 years of age, and would be entitled, in respect of residence at an address to be enrolled for a subdivision if he or she were 18 years of age may send or deliver a claim to have his or her name placed on the Roll for that subdivision to the Electoral Commissioner.[101] As I have observed the electoral claim form is evidence the appellant stated she was an Australian citizen and eligible to enrol for Federal and State elections. Further I have rejected her argument as to why she asserts she is not an Australian citizen but an “intermediate citizen, international law” who is not subject to the jurisdiction of the Magistrates Court. As such she was at the time of completing and signing the electoral claim form an Australian citizen, so as to meet that criteria for enrolment under the Commonwealth legislation as required by s 93(1).[102]

   [101]See paragraph [115].

   [102]See paragraph [114].

1. In these circumstances, although as the legislation demonstrates, contrary to Mr Ling’s submission her enrolment on the Commonwealth electoral roll was not compulsory, she was nonetheless entitled to be enrolled under s 64(1) of the EA on the basis of a provisional enrolment as provided for by s 66 and as such entitled to vote upon turning 18 years of age.[103]

   [103]See paragraph [116].

1. As was the case in relation to ground 3, for the purpose of ground 4 she gave no evidence in support of the proposition that her date of birth was altered without her knowledge or approval by someone unknown.  The position is the same as set out in paragraph [145] in relation to ground 3.

1. As was the case for ground 3 the document containing the submissions she relies on in support of the appeal also makes no reference to the issues raised by ground 4.

1. Again the only reference to the basis of this ground occurred during the following exchange with me during the appeal:

“HIS HONOUR:  All right.  Now, the second and third grounds of appeal relate to the enrolment document that’s been signed.  As I read those grounds of appeal, you’re not denying that you completed and signed that document?

APPELLANT:  That’s right, sir.

HIS HONOUR:  All right.  I want to be clear thought that, as I would understand it, from looking at the document, that everything in that enrolment document is in your writing except for the date, the 10^th of February ’85; is that right?

APPELLANT:  That’s right.

HIS HONOUR:  All right.  And do I take it that you filled in your date of birth as what appears to be the 10^th of February 2002?

APPELLANT:  Yes, sir.

HIS HONOUR:  But the other date has been added subsequently?

APPELLANT:  Yes, sir.

HIS HONOUR:  Do I take it that that date, the 10^th of February 1985, is your correct date of birth?

APPELLANT:  Yes, sir.

HIS HONOUR:  So, did you just make an error when you completed that document because you were filling it out in 2000‑‑‑‑‑

APPELLANT:  Yeah.

HIS HONOUR:  ‑‑‑‑‑and you wrote 2002 rather than ’85?

APPELLANT:  Yes, sir.

HIS HONOUR:  So, you meant to actually put ‘‘85’ on the document but you wrote ‘‘02’?

APPELLANT:  Yes, sir.”

1. However, as with ground 3, the appellant did not adduce any evidence to this effect before me that this change occurred without her knowledge and authority by a person unknown.

1. Again no leave was sought under s 223(2) of the JA for new evidence to be adduced, and the appeal proceeded on the evidence before the Magistrates Court. The position is the same as set out in paragraph [149] in relation to ground 3.

1. There is no evidence before me of the appellant’s date of birth being altered without her knowledge or approval by someone unknown.  There is only the unsworn statement which she made from the bar table, which does not go as far as this proposition advanced by ground 4.

1. Therefore this ground of appeal has not been established.

1. In any event, I agree with Mr Ling that even if the appellant had adduced evidence to support the unauthorised alteration of her enrolment claim form, it would not amount to a valid and sufficient excuse under s 186(1)(a) for her failure to vote at an election. At the most the alteration would be a correction of an error made in the filing in of the enrolment claim form.

1. The offence is for an elector to fail to vote at an election without a valid and sufficient excuse. By virtue of the certificate under s 186(4) there was evidence that the appellant was an elector within the meaning of the EA and as an elector she failed to vote.[104]

   [104]See paragraph [13](b) of this judgment.

1. Further by virtue of s 2 of the EA an elector means a person entitled to vote under it.[105] Then under s 106(1)(a) a person enrolled on the electoral roll for an electoral district is entitled to vote at an election for the District.[106] 

   [105]See paragraph [111].

   [106]See paragraph [112].

1. A copy of the page from the consolidated roll for the electoral district of Dalrymple in the relevant election was tendered without objection.  The appellant’s name and address appears on that roll.[107]  This is the same address as appears on the enrolment claim form and as the appellant’s address on her notice of appeal.

   [107]See paragraph [17].

1. This is sufficient evidence that the appellant was an elector for the purpose of s 186(1)(a). The fact that she made an error in filling in her date of birth in the electoral claim form does not alter this. Nor does it alter the fact that notwithstanding this error her correct date of birth at the time of completing the form entitled her to provisional enrolment which subsequently took effect when she turned 18. She was 27 years of age at the date of the election.

1. The relevance of tendering the enrolment claim was not to establish she was an elector for the purpose of s 186(1)(a). The above analysis shows this was established by other evidence. It was tendered as proof that in completing the form she stated she was an Australian citizen and eligible to enrol for and vote at Federal and State elections.

Review of the evidence

1. As I have already said this appeal proceeded on the evidence before the Magistrates Court.  This is the unchallenged documentary evidence and the unchallenged evidence of Mr Huey.  It does not require me to weigh conflicting evidence in order to draw my own inferences and conclusions.

1. Like the acting magistrate I am satisfied beyond reasonable doubt on the basis of the uncontradicted certificate under s 186(4) of the EA:

(a)        the 2012 Queensland State Election happened on 24 March 2012;

(b) the appellant, an elector within the meaning of the EA, failed to vote at the election;

(c) a notice was sent by the Electoral Commission of Queensland to the appellant under s 134 of the EA on 27 July 2012; and

(d) a form mentioned in s 134(1) was not received by the Commission from the elector by the date stated under the subsection.

1. Paragraphs (a) and (b) of the certificate establish the elements of the offence against s 186(1)(a) that at the relevant time the appellant, an elector, did fail to vote at an election. By virtue of s 186(5) the combination of paragraphs (c) and (d) provide evidence that the appellant failed to do this without a valid and sufficient excuse.

1. I am inclined to agree with his Honour that the prosecution had the burden of proving beyond reasonable doubt the appellant failed to vote at the election without a valid and sufficient excuse. However as indicated on the basis of the application of s 186(5) to the unchallenged certificate the prosecution discharged this onus.

1. I am also inclined to agree with his Honour that the appellant’s submission was not directed to this issue, but was directed to the proposition that the charge was invalid because she is not subject to the laws of Australia and therefore s 186(1)(a) of the EA is invalid insofar as they purport to apply to her. As such in reality she was saying she was not required to vote under the law.

1. As I have said consistently with the view taken in Anning[108] of the identical submissions, the appellant’s point is the State of Queensland has no power to legislate in respect of the Ngadjon Tribe and since she is a member of that Tribe, she is not subject to those laws.[109]

   [108][2013] QCA 263 at [41].

   [109]See paragraph [72].

1. However for the reasons I have given in rejecting the appellant’s challenge to the court’s jurisdiction, the laws of Queensland, in particular s 186(1)(a) of the EA are not invalid as they apply to her and she is subject to those laws. Therefore she is required to vote. As put by Morrison JA in Anning[110] she is not beyond the reach of the Queensland criminal law.

   [110][2013] QCA 263 at [53].

1. In any event if the appellant’s argument was to be regarded as an assertion that the prosecution have not established she did not have a valid and sufficient excuse, I consider the basis advanced as an excuse is what Isaacs J referred to as “an open challenge to the very essence of the enactment” in Judd v McKeon.[111]  As such it is excluded by law and not valid.[112]

   [111](1926) 38 CLR 380 at 386.

   [112]Ibid.

1. For these reasons I am satisfied beyond reasonable doubt on the basis of the uncontradicted evidence that the defendant is guilty of the offence of failure to vote at an election without a valid and sufficient excuse, contrary to s 186(1) of the EA.

1. In coming to this conclusion, I note in addition to the appellant’s arguments which I have addressed in considering the jurisdictional issue, the appellant advanced a number of other constitutional arguments which I reject because they are based on legislative principles which have since been amended or repealed.

1. The argument that Part VI of the CEA says no Aboriginal native of Australia shall be entitled to have his name placed on or retained on any roll or to vote in any Senate or House of Representative election unless so entitled by under s 41 of the Commonwealth Constitution (the Constitution) is based on the then s 39(6) of the CEA which dealt with the circumstances in which an Aboriginal native of Australia was not entitled to enrolment. However in the following year this provision was omitted. Since this time there has been no legislative provision disqualifying such persons from enrolment on the basis of their race. Part VI no longer deals with “Qualifications and Disqualifications for enrolment and voting”. This was the part in which the now repealed s 39 appeared when the legislation was originally enacted. Part VI of the legislation is now concerned with “Electoral Rolls”. Part VII deals with the subject matter which was previously the concern of Part VI. Part VII includes s 93 which as set out in paragraph [114] provides:

“(1)Subject to subsections (7) and (8) and to Part VIII, all persons:

(a)who have attained 18 years of age; and

(b)who are:

(i)Australian citizens; or

…

shall be entitled to vote.”

As also observed subsections (7) and (8) and Part VIII are inapplicable in the present case.  In particular they do not qualify the right to enrolment of Aboriginal people under the legislation.

1. As the appellant recognises in the submission s 127 of the Constitution has been deleted following the 1967 Referendum. I therefore agree with the respondent’s submission that the appellant’s arguments as to the invalidity of the EA on constitutional grounds are misconceived in basing her submissions on this section. Further I agree that her argument to this effect based on s 51(xxvi) of the Constitution is misconceived because it is based on words which have been removed from it following that Referendum.

1. I also agree with the respondent’s submission that there was nothing in the language of s 127, prior to its repeal, having the effect that the Aboriginal natives to which it referred were not subject to the laws of the Commonwealth Parliament.

1. Further I agree with the respondent’s submission that the appellant has misconstrued the effect of the amendment to s 51(xxvi). As is submitted, the provision in its original form did not have the effect that the Commonwealth Parliament could not legislate generally, in respect of persons, including persons of the Aboriginal race, but only prevented it enacting race specific laws in respect of persons of the Aboriginal race. The removal of the words “other than the Aboriginal race in any state” does not have the effect that the Commonwealth Parliament cannot now legislate generally in respect of persons of the Aboriginal race, but allows it to enact special laws relating or applying to people of any race (including enacting laws for the benefit of Aboriginal people). This is the plain meaning of the words that constitute s 51(xxvi). I further agree with Mr Ling that it does not operate in any way to remove any constitutional rights of people of any race (including Aboriginal people).

1. Therefore I accept the respondent’s argument that the appellant’s submissions based on s 127 and s 51(xxvi) of the Constitution are irrelevant to the determination of this appeal.

1. I also agree with Mr Ling that neither s 41 of the Constitution nor R v Pearson; Ex parte Spika[113] is relevant to the issues which arise for consideration for the purpose of this appeal.  It is not a case concerned with the right of Aboriginal people to vote.  It is a decision limited to whether the applicants were entitled to enrol for and vote at a federal election by virtue of s 41.  Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ held that the right to vote in s 41 was that possessed under a State law when the Federal franchise was established.  Section 41 did not confer a right to vote in a federal election on any person who from time to time had the right to vote at a State election.  As is implicit in the appellant’s submission, Murphy J delivered the dissenting judgment.

   [113](1983) 152 CLR 254.

1. Gibbs CJ, Mason and Wilson JJ said:

“Section 41 does not in terms confer a right to vote.

…

It prevents the Commonwealth Parliament from taking away a right to vote; it does not create an entitlement which does not otherwise exist.

…

By virtue of s 41, the Commonwealth law which first established the franchise could not have prevented any person who then had a right to vote at elections for the more numerous House of the Parliament of a State from voting at elections for either House of the Parliament of the Commonwealth. But once a Commonwealth law had been passed completely establishing the franchise, no person, not already qualified to vote at Commonwealth elections, could become so qualified by virtue of the Constitution alone. No future law could be said to prevent such persons from voting, since there was nothing in the Constitution or in the law that gave them a right to vote. This construction, which requires that the right to vote to which s 41 refers must have been acquired by the persons concerned before the federal franchise was established, gives a narrow effect to s 41.”[114]

[114]Ibid at 260-261.

1. Their Honours concluded:

“… we hold that s 41 preserves only those rights which were in existence before the passing of the Commonwealth Franchise Act 1902. It follows that none of the prosecutors can succeed in the present case. None of them had acquired any right to vote at a State election before the federal franchise was established. None, therefore, is prevented from voting, within the meaning of s 41, by the Commonwealth Electoral Act.”[115]

[115]Ibid at 264.

1. As Brennan, Deane and Dawson JJ held:

“The purpose of s 41 is clear from its constitutional context: it was to ensure that those who enjoyed the constitutional franchise should not lose it when the statutory franchise was enacted. The statute was to govern the subsequent acquisition of the right to vote at federal elections. The persons to whom s 41 applies are the persons who acquired the right to vote pursuant to ss 30 and 8. After the Parliament enacted the Commonwealth Franchise Act 1902, which was entitled "An act to provide for an Uniform Federal Franchise", no person could acquire the right to vote at federal elections save in accordance with its terms.

However, the provisions of successive Commonwealth Acts relating to the franchise (and in particular provisions relating to disqualification) have expressly acknowledged the existence of a franchise protected by s 41 …

…

It follows, of course, that the practical effect of s 41 is spent. Most of the electors who acquired a right to vote at federal elections under ss 30 and 8 of the Constitution would have died. Since 12 June 1902, when the Commonwealth Franchise Act came into force, no person has acquired a right to vote the exercise of which is protected by s 41.  None of the present applicants is a person to whom s 41 applies.  None of them is therefore entitled to enrol or to vote by reason of s 39B of the Act.”[116]

[116]Ibid at 279-280.

1. Accordingly the right of Aboriginal people to enrol for and vote at a federal election is governed by Part VII of the CEA which repealed and replaced the Commonwealth Franchise Act 1902 (Cth).

1. As such I agree with the respondent’s submission that the appellant’s references in her submission to the Commonwealth Franchise Act 1902 are irrelevant to this appeal.

1. I note that although the appellant refers to the dissenting judgment of Murphy J in that case, she fails to recognise that despite her reliance on the terms of s 39(5) of the CEA in support of her argument, consistently with the analysis in paragraph [179] his Honour also said:

“Following the Report of the Select Committee the disqualification of Australian Aborigines was removed in 1962 by amendment of the Commonwealth Electoral Act No 31 of 1962 (s 2).  Until then, the only right of Australian Aboriginals to vote in federal elections was derived from the guarantee in s 41.”

This emphasises that the right of Aboriginal people to enrol and vote at federal elections is now derived from the Commonwealth Electoral Act 1918 (Cth). For the reasons given by Brennan, Deane and Dawson JJ the practical effect of s 41 is spent. As such neither it nor the decision in that case have relevance to the issues arising on this appeal.

Conclusion

1. Accordingly the appeal against conviction for the charge of failure to vote at an election without a valid and sufficient excuse, contrary to s 186(1) of the EA is dismissed, and pursuant to s 225(1) of the JA the conviction is confirmed.

Appeal against sentence

Appeal principles

1. The appeal is brought against the severity of the fine, i.e. on the ground the sentence is manifestly excessive.  Before an appellate court will interfere with the exercise of a sentencing discretion, the appellant must demonstrate the judicial officer acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect him or her, mistook the facts, or did not take into account some material consideration.[117]  It is therefore relevant to consider whether the sentence appealed against was outside the sound exercise of the sentencing court’s discretion.[118]

   [117]House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504-505.

   [118]Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250 per Dearden DCJ at [29].

The sentencing process

1. The respondent’s submissions on sentence are set out in paragraph [33]. As indicated Mr Ling submitted for the imposition of the maximum fine of one penalty unit ($100). He left it to his Honour’s discretion as to whether to record a conviction. The appellant responded to his Honour that she had nothing to say at that time.

The sentencing decision

1. As indicated at paragraph [34] his Honour concluded the maximum penalty was appropriate because of the appellant’s lack of co-operation and remorse, and the unarguable defence relied upon.  Because of the appellant’s lack of previous convictions and her relative youth he exercised his discretion not to record a conviction.

Appellant’s submissions on the appeal

1. The appellant’s ground of appeal is simply stated as concerning “the severity of the fine issued against me”.  When asked to expand upon this during argument on the appeal she gave as her reason:

“Because I believe I’m not an Australian citizen.  I believe those penalties don’t apply to me as a sovereign person.  I believe that the … Crown Court had no jurisdiction to prosecute those penalties on myself.”

Accordingly as she agreed her argument on this issue is the same as her argument as to why she should not have been convicted.

Respondent’s submissions on the appeal

1. The respondent submitted that for the reasons stated by the acting magistrate this was an appropriate case for the maximum penalty to be imposed.

Discussion

1. For the reasons I dismissed the appellant’s challenge to the court’s jurisdiction I conclude there is again no substance in the point raised on the issue of severity of penalty.

1. Although his Honour imposed the maximum penalty, this penalty by comparison with the maximum penalty for other offences was a moderate one.  I do not understand his Honour to have aggravated the penalty by having regard to the appellant’s lack of co-operation and remorse and reliance on an unarguable defence.  In my view he proceeded on the basis she did not have the benefit of co‑operation with the administration of justice and remorse as circumstances in mitigation.

1. The appellant appropriately received the benefit of having attained the age of 28 years without a previous conviction in the exercise of the sentencing Magistrate’s discretion not to record a conviction.

1. In determining whether the penalty is manifestly excessive regard must be had to the combined effect of the penalty and to the non recording of a conviction, which together constitute the sentence. This follows from the judgment of Thomas and White JJ in R v Briese.[119] As their Honours said it is impossible to consider the exercise of the discretion involved under s 12 of the Penalties and Sentences Act 1992 as to whether to record a conviction in isolation from the particular sentencing option being considered and it is likewise inappropriate to consider those sentencing options in isolation from the circumstances whether the conviction is recorded or not. It is the combined effect of the orders which needs to be looked at before the court decides that a sentence is appropriate.

   [119](1997) 92 A Crim R 75, with particular reference to 77. I note that Dowsett J differed on this point.

1. When the combined effect of the orders are considered in the present case the appellant has not demonstrated to me that his Honour acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect him, mistook the facts, or failed to take into account some material consideration. The sentence imposed was not outside the sound exercise of his sentencing discretion. Although the maximum penalty was imposed, a realistic assessment of the nature of the offence is that there are unlikely to be such variations in offences committed against s 186(1) of the EA that this could not be said to be representative of the worst type of case one would expect to be caught by it.[120]

   [120]See for example R v Whye [1997] QCA 320.

Conclusion

1. Accordingly the appeal against sentence is dismissed.  The sentence at first instance is confirmed.

Order

1. The appeal against conviction and sentence is dismissed.

1. I will hear the parties in respect of the costs of the appeal.