Batten v Police No. Scgrg-98-630 Judgment No. S6778

[1998] SASC 6778

BATTEN v POLICE

Magistrates Appeal
Debelle J (ex tempore)

On 17 April 1998 the appellant appeared in the Magistrates Court at Murray Bridge, charged with driving a motor vehicle at a greater speed than 60 kilometres an hour.  It was alleged that on 30 April 1997 at Mannum, he had driven on the Mannum/Adelaide Road at a speed of 81 kilometres an hour. 

Before the hearing began, the appellant raised a preliminary point challenging the jurisdiction of the court to hear and determine the question whether he had been guilty of the offence with which he had been charged.  The appellant argued that the court was not validly constituted.  He argued that the State of South Australia is not a valid constitutional entity.  These arguments and others were derived from the appellant's view of the consequences of the Commonwealth of Australia being party to the Treaty of Versailles in 1919, its acceptance as a member of the League of Nations in 1920, and its subsequent membership of the United Nations. 

He further submitted that constitutional issues existed which required the court to give notice to the Attorney General of the Commonwealth and to the Attorney Generals of the States and Territories, pursuant to s78B of the Judiciary Act, 1903 (Cth).

The magistrate overruled the submissions and proceeded to hear and determine the complaint.  The prosecution led evidence.  The appellant offered no evidence.  He, in effect, relied on the arguments as to the constitutional propriety of the matter proceeding.  The magistrate was satisfied that the offence had occurred.  He convicted the appellant and ordered that he pay a fine of $174 and other costs.  The appellant appeals from that conviction. 

In his notice of appeal, the appellant reiterates much of what he had put before the magistrate and on the face of it appears to have added some further grounds.  The Notice of Appeal reads:

“By citing as his authority, legislation which is dependant on Letters Patent, and the Letters Patent themselves issued by the Government and a Monarch of a power (i.e. the United Kingdom of Great Britain and Northern Ireland) which is foreign to the sovereign independent Member State of the United Nations, Australia:

It is alleged that, in the terms of Article 14 of the International Covenant on Civil and Political Rights the Magistrate presided over an ‘incompetent Court’ thereby illegally victimising an Australian citizen.

It is further alleged that, since the stated Covenant is Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986 (Commonwealth) it is also Australian law and that the Appellant can rightly expect protection under it.

Despite the presentation of indisputable evidence to the contrary, the presiding Magistrate ruled that, contrary to both and (sic) British and International law there exists residual powers derived from the 1856 British colony of South Australia Constitution which gives powers to the South Australian legislature which enables the giving of Letters Patent from the Parliament and the Sovereign of the United Kingdom of Great Britain and Northern Ireland.  A power foreign to the sovereign independent nation of Australia.

It is alleged that in making this ruling the Magistrate contravened Article X of the Covenant of the League of Nations as well as Article 2, paragraph 1 and 4 of the United Nations Charter.  These treaties are binding on Australia.

In making this ruling the Magistrate needed to consider and make decisions in relation to the interpretation and application of International treaties to which Australia is a signatory.  Namely the Covenant of the League of Nations and the Charter of the United Nations.

In so doing it is alleged that the Magistrate exceeded the jurisdiction of his Court and that in so doing he contravened Article 36 of the Statute of the International Court of Justice.

Also by so doing he ignored High Court rulings in relation to expectations of protection afforded to Australian citizens by treaties to which Australia is a signatory. Additionally he contravened paragraph 75 of the Constitution.

This paragraph specifically states that “the High Court shall have original jurisdiction”...  “In all matters”... (I) arising under any treaty.”

Extensive evidence was presented which established that the British Colony of the Commonwealth of Australia Constitution Act 1900 (UK) of which the 9th clause is the Australian Constitution remains an Act of the Parliament of the United Kingdom of Great Britain and that as such became invalid at the time Australia ceased to be a colony of the United Kingdom.

It is alleged that in considering and making decisions in relation to questions relating to the Constitution and its validity in terms of International law the Magistrate not only exceeded his jurisdiction in relation to International law, he also exceeded his jurisdiction under the same domestic law that the Appellant maintains is invalid. In proceeding he in fact breached Section 78B of the Judiciary Act 1903 (Commonwealth) which indicates that in relation to such matters it is the duty of the court not to proceed until notice has been given to the Federal and all of the States Attorneys-General in relation to the question of their intervention or the removal of the cause to the High Court.”

The appellant has also given notice of the proceedings pursuant to s78B of the Judiciary Act to the Federal Attorney General and to the Attorneys General of the States and Territories.  The notice included a request that the Attorneys General intervene in the proceedings and remove the cause to the High Court for its consideration.  In his affidavit proving those notices, the appellant reiterates the grounds upon which he relies and elaborates upon them. 

The appellant has received a reply from the Australian Government Solicitor on behalf of the Federal Attorney General, advising that the Attorney General for the Commonwealth will not be intervening or applying to remove the cause to the High Court.  The letter goes on to state that, if the matter is taken further on appeal the Attorney General might then intervene.

During the hearing of this appeal, the appellant also produced letters from the Attorneys General of all the States and Territories. All have replied that they do not wish to intervene. Those letters will remain on the court file. Even if the Attorneys General had not responded, I would have proceeded with this matter since the issues which arose in this appeal do not in any sense relate to a matter arising under the Constitution or involving its interpretation as those words are understood. There was no occasion for the service of s78B notices. The only issues in this appeal are whether the appellant has committed this offence; whether the Parliament of this State has the legislative competence to enact the Road Traffic Act as a valid law of this State; and whether the law is enforceable.

The appellant does not contest the alleged speed. No issue as to that is raised in this appeal. The only question in the appeal is as to the validity and the enforceability of the Road Traffic Act and the authority and competence of the Parliament of South Australia to enact such a provision.

The arguments which have been advanced by the appellant display, I regret to say, a fundamental misunderstanding of both constitutional and international law. He misunderstands the constitutional framework of the Federation, which is the Commonwealth of Australia. He misunderstands the constitutional arrangements as between the Commonwealth and the States. He misunderstands the constitutional arrangements whereby the Constitution was enacted. He misunderstands the constitutional arrangements which had prevailed, so far as the States were concerned, prior to the enactment of the Commonwealth Constitution. It is clear also, that he misunderstands the consequences of the Commonwealth of Australia being party to international treaties. While, of course, the fact that Australia signs international treaties might, in certain circumstances, affect the municipal law of the country, that is not the situation in this case.

The effect of Mr Batten's argument is the mere fact that, by signing the Treaty of Versailles in 1919, Australia became party to an international treaty, with the consequence that it has somehow altered its nationhood, and has somehow altered the legislative competence, respectively, of the Commonwealth and the States. 

In short, the arguments have the hallmarks of a latter day Mr Justice Boothby.  Since the enactment of the Colonial Laws Validity Act in 1865, nothing has occurred which adversely affects the constitutional or legislative competence of the Parliament of South Australia to make laws relating to road traffic and their enforcement in the courts of this State.

The arguments which Mr Batten has so earnestly placed before the court,  regrettably, display such a misunderstanding of the issues involved and are sufficiently confused that it is sufficient answer to say that he completely misunderstands the issues and his arguments must fail.  It follows that the appeal must be dismissed. 

Any application for costs?

MS BRADSEN:                   Yes.  We seek the usual costs.  However, could I say that, the usual costs are minimal in these matters to reflect the justice of the matter.  The Crown has treated the appellant's argument seriously and given a considerable amount of time to it.  This is the second time that the appellant has put such arguments to this court.   It is the Crown's position, that if it were to happen again it would appear very much as an abuse of process, either by a back door attempt to appeal a previous judgment, or to find a forum for ideas which should be put elsewhere.  So that, I would like to make those remarks but ask for no more than the usual costs. 

HIS HONOUR:  As I understand it Ms Bradsen, the effect of your submission is, you seek the usual order of $150, which is, as I always understood to be a nominal amount?

MS BRADSEN:                   Yes. 

HIS HONOUR:  Because these are appeals from magistrates. 

MS BRADSEN:                   Yes. 

HIS HONOUR:  But, the leniency is being extended because there is a lot of work involved in this matter will not be repeated on a future occasion?

MS BRADSEN:                   Indeed. 

HIS HONOUR:  Mr Batten, Ms Bradsen correctly summarizes the position,  namely, that a nominal order to costs is made of $150.  She seeks no more than that on this occasion.  Have you any argument that you wish to advance in opposition to her applications?

MR BATTEN:  None whatsoever. 

HIS HONOUR:  I make the usual order, that the appellant pay the respondent's cost, which I fix in the sum of $150. 

Orders:

1. Appeal dismissed.

1. The appellant shall pay the respondent’s costs which I fix at $150.