Cameron v Peter D Beattie in his capacity as Premier

[2001] QSC 115

SUPREME COURT OF QUEENSLAND

CITATION:              Cameron v Peter D Beattie in his capacity as Premier & Ors

[2001] QSC 115

PARTIES:                 DONALD GORDON CAMERON

(plaintiff/respondent)

v

PETER D BEATTIE IN HIS CAPACITY AS PREMIER

(first defendant/first applicant)

DESMOND J O’SHEA ELECTORAL COMMISSIONER

(second defendant/second applicant)

THE ATTORNEY GENERAL FOR QUEENSLAND

(third party/third applicant) FILE NO/S:  S 2235 of 2001

DIVISION:               Trial Division

DELIVERED ON:    18 April 2001

DELIVERED AT:     Brisbane

HEARING DATE:      5 April 2001

JUDGE:  Philippides J

ORDER:  Judgment is given for the defendants

CATCHWORDS:       CONSTITUTIONAL    LAW    –    THE    NON-JUDICIAL ORGANS  OF  GOVERNMENT  –  THE  LEGISLATURE  – whether election pursuant to  Electoral Act  1992 (Qld) was inconsistent with Electoral Act 1918 (Cth) – whether oath of allegiance to Sovereign of Australia prescribed to be taken by members  of  the  Legislative  Assembly  conflicts  with  High Court  decision  in  Sue  v  Hill  –  whether  there  is  a  lawful Sovereign of  Australia.

PROCEDURE     –     MISCELLANEOUS     PROCEDURAL MATTERS  –   OTHER   MATTERS   –   where   proceeding discloses no reasonable cause of action and is frivolous and vexatious.

Commonwealth Constitution, s 44(i)

Constitution Act 1867, s 4

Electoral Act 1918 (Cth)

Electoral Act 1992 (Qld), s 83(1)(b)

Royal Style and Titles Act 1973 (Cth)

Uniform Civil Procedure Rules 1999, r 293

Nolan v Minister for Immigration and Ethnic Affairs (1988)

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165 CLR 178

Pochi v Minister for Immigration & Ethnic Affairs (Macphee)

(1982) 151 CLR 101

R v State Secretary; Ex parte Indian Association of Alberta

[1982] QB 892

Sue v Hill (1999) 199 CLR 463

COUNSEL:                Plaintiff self represented

M D Hinson SC for first and second defendants, and third party.

SOLICITORS:          Plaintiff self represented

Crown Solicitor for first and second defendants, and third party.

[1]     PHILIPPIDES J:   This is an application pursuant to r 293 of the Uniform Civil Procedure Rules 1999 for an order that judgment be given dismissing the claim on the grounds that the proceeding discloses no reasonable cause of action and is frivolous and vexatious.

[2]     The plaintiff in his claim seeks a declaration that the election of 17 and 24 February

2001 pursuant to the  Electoral Act 1992 (Qld) be declared inconsistent with the provisions of the Electoral Act 1918 (Cth).

[3] A number of matters are raised in the statement of claim, however, the plaintiff Mr Cameron, who is self represented, seeks to confine the claim solely to one of the matters raised in the statement of claim. That concerns the issue of whether the oath of allegiance prescribed by s 4 of the Constitution Act 1867 (Qld) to be taken by members of the Legislative Assembly “conflicts with the Ruling of the High Court” in Sue v Hill (1999) 199 CLR 463: see statement of claim pp 1-2, 6-7. It therefore appears that the plaintiff no longer intends to pursue the other issues raised in the statement of claim.

[4]     The plaintiff’s written submissions concerning the issues going to the question of the “oath of allegiance” are summarised as follows:

1.Pursuant to s 4 of the Constitution  Act  (1867)  (Qld),  members  of  the Legislative Assembly take an oath of allegiance to  “a lawful sovereign of Australia”.

2.This is said to be a fraud because Australia does not have a sovereign that is lawful, in that Australian citizens, pursuant to s 128 of the Commonwealth Constitution, did not approve “a lawful sovereign of Australia”.

3.In 1973, the  Royal Style and Titles Act 1973 (Cth) changed an Act of the British Parliament of Westminster fraudulently in substituting the Queen of Australia for the Queen of the United Kingdom.

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4.That the Queen of Australia is a fraud is settled in the United Kingdom by the decision of the English Court of Appeal in R v State Secretary; Ex parte Indian Association of Alberta [1982] QB 892, which lays down at 928 that, in matters of law and government, there is only one person who is sovereign, the Queen of the United Kingdom and Northern Ireland, defender of the faith within the British Commonwealth.

5.        The High Court in Sue v Hill adopted the ruling in R v State Secretary.

[5] The plaintiff alleges that s 4 of the Constitution Act 1867 (Qld) compels elected members to breach s 44(i) of the Commonwealth Constitution and claims a declaration that the members of the government “are disqualified” on “the Ruling of the High Court of Australia HCA30 23rd June 1999”, i.e. Sue v Hill.

[6] Section 4 of the Constitution Act 1867 (Qld) provides that no member of the Legislative Assembly shall be permitted to sit or vote therein until that member has taken and subscribed the oath of allegiance to the Sovereign of Australia as set out therein.

[7]     Pursuant to the  Royal Style and Titles Act 1973 (Cth), the Queen adopted as her Royal Style and Titles in relation to Australia that of “Queen of Australia and Her other Realms and Territories, Head of the Commonwealth”.

[8] Mr Hinson SC, counsel for the defendants, submitted that the swearing of an oath of allegiance to the “Queen of Australia” is not an acknowledgment of allegiance to a foreign power within the meaning of s 44(i) of the Commonwealth Constitution. As Mr Hinson SC correctly identified, the plaintiff proceeds on an erroneous assumption, that because the Queen is also the Queen of the United Kingdom, and the United Kingdom is a foreign power for the purposes of s 44(i) of the Commonwealth Constitution, the swearing of an oath of allegiance to the Queen of Australia involves the swearing of an oath of allegiance to the Queen of the United Kingdom. The error in the assumption is that it fails to recognise that the Queen of Australia is entirely independent and distinct from the Queen of the United Kingdom in matters of law and government: Sue v Hill at 489-490. In this regard, the plaintiff’s claim is premised on a misunderstanding of Sue v Hill.

[9]     The allegiance which Australians owe to the Queen is owed as subjects of the

Queen of Australia:  Pochi v Minister for Immigration & Ethnic Affairs (Macphee)

(1982) 151 CLR 101 at 109 and Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 186. By s 83(1)(b) of the Electoral Act 1992 (Qld) only a person who is an Australian citizen may be elected as a member of the Legislative Assembly. An Australian citizen owes allegiance to the Queen of Australia. Section 4 of the Constitution Act 1867 (Qld) merely provides for an Australian citizen elected as a member of the Legislative Assembly to swear an oath of allegiance to the Queen of Australia to whom that citizen already owes allegiance.

[10]     As I have already mentioned, the plaintiff did not seek to proceed with any of the other  matters  raised  in  the  statement  of  claim,  but  confined  himself  to  the allegations relating to the oath of allegiance to the Queen of Australia.  Those allegations raise no reasonable cause of action and are frivolous and vexatious.  In

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the circumstances judgment is given for the defendants.  I shall hear the parties on the question of costs.