Cardinia Shire Council v Kraan

[2017] VMC 18

IN THE MAGISTRATES’ COURT OF VICTORIA

AT DANDENONG

CRIMINAL DIVISION

Proceeding No. F13189056

BREWER, ANDRE	Informant
v
KRAAN, RONALD	Accused

MAGISTRATE:	MAGISTRATE MACCALLUM
WHERE HELD:	DANDENONG MAGISTRATES’ COURT
DATES OF HEARING:	30 MARCH 2017; 30 MAY 2017
DATE OF DECISION:	13 JULY 2017
CASE MAY BE CITED AS:	CARDINIA SHIRE COUNCIL V KRAAN
MEDIUM NEUTRAL CITATION:	[2017] VMC018

REASONS FOR DECISION

APPEARANCES:	Counsel	Solicitors
For the Prosecution	NATALIE SHERIDAN-SMITH	RUSSELL KENNEDY
For the Accused	IN PERSON	N/A

HER HONOUR:

1. The Accused, Ronald Kraan, is charged with four contraventions of the Building Act 1993.

2. The Accused makes various submissions challenging the validity of the proceeding brought against him by the Cardinia Shire Council. Mr Kraan informed the Court that he is illiterate. He raised these submissions by tendering a document dated 12 September 2016 and filed with the Court on 30 March 2017 (Attachment A). On 30 March 2017, the Court ordered written submissions from the Council in response to each of the points raised by Mr Kraan. The submissions are dated 27 April 2017, but were received by the Court on 22 May 2017 (Attachment B). At the return of the hearing on 30 May 2017, Mr Kraan raised further preliminary issues for determination. He did so by tendering a document dated 29 May 2017 (Attachment C). The Court ordered written submissions from the Council in response to each of the further submissions. The Council’s submissions were received by the Court on 9 June 2017 (Attachment D).

3. Mr Kraan challenges the legal basis of the Cardinia Shire Council’s powers to administer and enforce laws and regulations affecting his ownership or use of his property, including the power of the Council to levy rates or charges. In particular, Mr Kraan submits that although the Federal Constitution recognises government at the Federal and State levels, it makes no mention of local government, and therefore there is no constitutional or recognised legal basis for local government. He also challenged the jurisdiction of the Court to hear the charges on various grounds, which are set out below.

4. I have considered all of the parties’ verbal and written submissions, as well as the Commonwealth of Australia Constitution Act 1901, the Constitution Act 1975 (Vic), the Local Government Act 1989 (Vic), the case law and legislation referred to by the parties and other relevant case law that has considered similar questions. Mr Kraan has failed to establish any legal basis for invalidating the power of the Council to bring this proceeding, nor the Court’s jurisdiction to hear it.

5. I will address each of Mr Kraan’s arguments in the order in which they are made in his written submissions.

Submission 1

1. Mr Kraan’s first submission is:

   “If you love the lord as your god as you love your neighbour as yourself you break no laws. You are only subject to the law if you break the law.”

2. The Council have correctly submitted that, in so far as this submission is a paraphrased quote from the bible, the bible has no relevance to Australian law. The Council have further correctly submitted that the Commonwealth Constitution provides for separation of state and church and states that all Australian citizens and residents are subject to the Commonwealth Constitution and legislation enacted by Parliament.[1] Section 116 of the Constitution[2] states:

   [1] Council submissions, 27 April 2017, paragraph 1, page 2.

   [2] Commonwealth of Australia Constitution Act 1901.

   “116  Commonwealth not to legislate in respect of religion

   The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

3. The Supreme Court of Victoria in Moyle v County Court of Victoria[3] states in respect of section 116:

   [3] [2006] VSC 87, paragraph 9, per Bonjiorno J (citations omitted).

   “Section 116 of the Constitution, which was derived from a similar provision in the U.S. Constitution, is headed: "Commonwealth Not to Legislate in Respect of Religion". Its terms are well known and it was discussed by the High Court extensively in two cases: A-G for Victoria at the relation of Black & Ors v The 3 T0087 Commonwealth1 (the DOGS case) and the Adelaide Company of Jehovah's Witnesses v The Commonwealth2.”

4. Insofar as Mr Kraan’s submission is that he is not subject to the laws of Australia, that submission is plainly incorrect. Clause 5 of the Constitution’s covering clauses provides that the operation of the Constitution and all laws made pursuant to it are binding on all people.

   “ Operation of the Constitution and laws [see Note 3]

   This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.”

10.The meaning of these provisions and the case law is clear. There is no legal merit in Mr Kraan’s submission, and it is dismissed.

Submission 2

11.Mr Kraan’s second submission is:

“Local government known as Cardinia Shire Council, the CEO and other counsellors for many years have had a vendetta against me. They have subjected me to tortfeasor, assault and have caused me to have mental and physical stress and great financial losses.”

12.There is no evidence before the Court in relation to these matters. These are potentially matters for Mr Kraan to raise before the Court at the criminal hearing. It will be for the Court to determine the relevance of these submissions and whether Mr Kraan has raised any valid defences on the evidence. The Council denies these allegations, states that the charges before the Court are have been brought in accordance with the requirements of Chapter 2 of the Criminal Procedure Act 2009, and states that Mr Kraan has been served on several occasions with the brief of evidence including the witness statements that set out the evidence upon which the Council relies. Whilst Mr Kraan does not attack the form of the charges, I accept the Council’s submission that there is no irregularity in the manner in which the proceeding has been brought.[4]

[4] Council submissions 27 April 2017, page 2, paragraph 2.

Submission 3

13. Mr Kraan’s third submission is:

“I have supported the community for many years and have several hundred people concerned about my affairs with local government, they are all supporting me.”

14.I agree with the Council that this submission has no relevance to the present criminal prosecution.

Submission 4

15. Mr Kraan’s fourth submission is:

“The Australian Constitution recognises Government at Federal and State levels but makes no mention of local government. The proposal was put to a referendum in the Australian referendum, 1988. A similar proposal was made in the Constitution Alteration (Local Government) 2013, but that proposal was not submitted to a referendum. Attached is results of the 1988 Australian Referendum that stands today.”

16.Mr Kraan is correct in his statement that the Federal Constitution establishes the Federal and State Parliaments.[5] Section 51 of the Constitution sets out the matters over which the Commonwealth has exclusive legislative power. Section 107 of the Constitution vests all residual legislative powers in the States. It provides:

[5] See Chapters 1 and 5 of the Constitution respectively.

“107  Saving of Power of State Parliaments

Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.”

17.Mr Kraan does not challenge the legal basis of the Commonwealth Constitution. He does not appear to challenge the legal basis of the Victorian Constitution. For the avoidance of doubt the Supreme Court of Victoria has recognised the validity of the Victorian Constitution.[6]

[6] See NAB v Walter [2004] VSC 36, paragraph 275.

18.Mr Kraan’s submission appears to be that:

1. The Commonwealth Constitution provides for municipal institutions and local government as departments of a State only;
2. In 1979, the Parliament of Victoria amended the Victorian Constitution to include section 74A which inserts Local Government into the Victorian Constitution;
3. This amounted to an amendment of the Commonwealth Constitution by the Victorian Parliament which is unlawful, as the Constitution may only be amended by means of a referendum pursuant to section 128 of the Constitution;
4. Therefore section 74A of the Victorian Constitution is unlawful, and, as a result, so is Local Government;
5. Local Government can only be a department of State, and departments of State Governments cannot govern or create local laws or impose taxation laws;
6. Therefore Local Government cannot govern, make law, or tax citizens. [7]

[7] A summary taken from `Community Law Resources Association Press Release: Is Local Government Valid”, attached to Mr Kraan’s written submissions, 30 March 2017.

19.The submission entirely misconceives the Australian constitutional structure. As stated above, the Constitution, section 107 gives the States residual powers over all matters that are not expressly listed in section 51. Section 16 of the Constitution Act 1975 (Vic) provides:

“16. Legislative power of Parliament

The Parliament shall have power to make laws in and for Victoria in all cases whatsoever.”

20.The Commonwealth Constitution does not make mention of local government. It is, however, specifically provided for in the Constitution Act 1975 (Vic), sections 74A and 74B which provide:

“Part IIA—Local government

74ALocal government

(1)Local government is a distinct and essential tier of government consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district.

(1A)Subject to section 74B, each Council—

(a)is responsible for the governance of the area designated by its municipal boundaries; and

(b)is constituted by democratically elected Councillors as the governing body which is—

(i)accountable for its decisions and actions; and

(ii)responsible for ensuring good governance; and

(c)includes an administration which—

(i)implements the decisions of the Council; and

(ii)facilitates the performance of the duties and functions of the Council.

(2)An elected Council does not have to be constituted in respect of any area in Victoria—

(a)which is not significantly and permanently populated; or

(b)in which the functions of local government are carried out by or under arrangements made by a public statutory body which is carrying on large-scale operations in the area.

74BLocal government laws

(1)Parliament may make any laws it considers necessary for or with respect to—

(a)the constitution of Councils; and

(b)the objectives, functions, powers, duties and responsibilities of Councils; and

(c)entitlement to vote and enrolment for elections of Councils; and

(d)the conduct of and voting at elections of Councils; and

(e)the counting of votes at elections of Councils; and

(f)the qualifications to be a Councillor; and

(g)the disqualification of a person from being or continuing to be a Councillor; and

(h)the powers, duties and responsibilities of Councillors and Council staff; and

(i)any other act, matter or thing relating to local government administration.

(2)A Council cannot be dismissed except by an Act of Parliament relating to the Council.

(3)Parliament may make laws for or with respect to—

(a)the suspension of a Council; and

(b)the administration of a Council during a period in which the Council is suspended or dismissed; and

(c)the re-instatement of a Council which has been suspended; and

(d)the election of a Council if a suspended Council is not re-instated; and

(e)the election of a Council where a Council has been dismissed.”

21.As set out above, section 74B(1) states that the Parliament “may make any laws it considers necessary for or with respect to (a) the constitution of Councils and (b) the objectives, functions, powers, duties and responsibilities of Council.” The Victorian Parliament, using this power, passed the Local Government Act 1989 (Vic) and established the Cardinia Shire Council.[8]

[8] Victorian Government Gazette, No. S 97 Thursday 15 December 1994.

22. The procedure by which Councils make local laws is set out in Part 5 of the Local Government Act 1989 (Vic). Section 118 provides that: “A local law is a subordinate instrument for the purposes of the Interpretation of Legislation Act 1984.” The procedure for making local laws is set out in section 119 of the Local Government Act.

23.The political movement for the formal recognition of local councils is referenced in the Council’s submissions.[9] I agree with the Council’s submission that the ongoing movement for federal legal recognition of Councils has no bearing on the validity of local councils generally, and in this case, the Cardinia Shire Council.

[9] Council submissions 27 April 2017, at pages 4-5, paragraph 7 and 8.

24.The Court of Appeal of Western Australia in Glew v Anor v Shire of Greenough[10] describes the Australian Constitutional structure, the role played by referenda, section 109 of the Constitution and why it is possible for both Federal and State Governments to pass laws dealing with taxation.

[10] [2006] WASCA 260, at paragraphs 6-14.

“Australian constitutional structure

6 The Commonwealth Constitution is binding on all Courts and Parliaments throughout the country. To the extent that State or Commonwealth law is inconsistent with it, that State or Commonwealth law is invalid. It is, however, a Constitution which was superimposed on, and assumes the existence of, pre-existing State Constitutions which not only continued, but which were able to be altered in accordance with their terms.

7 So far as legislative power was concerned, s 51 of the Commonwealth Constitution listed most of the legislative powers of the Commonwealth. Those powers were not expressed to be exclusive. That is, the Commonwealth Constitution contemplated that both State and Commonwealth Parliaments would be able to make laws in relation to the matters set out in that list. It was only where the Commonwealth had passed a law in relation to one of those listed subject matters, and a State law was inconsistent with the Commonwealth law, that the State law would become invalid or inoperative (s 109). That would not be because the State lacked constitutional power to pass the law, but simply because the Commonwealth legislation was, to the extent that the Commonwealth had passed law, paramount. There is a short list of powers which are exclusive to the Commonwealth Parliament. They include, for example, the power to make laws with respect to the seat of government of the Commonwealth (s 52(i)).

8 Taxation, which is referred to in s 51(ii), is a non-exclusive power, so that both State and Commonwealth Parliaments can pass laws dealing with taxation. However, because of the existence of s 109 of the Commonwealth Constitution, it is possible for the Commonwealth Parliament to give priority to its own taxation law, and/or to impose taxation at a rate such that the practical effect would be that it would not be politically possible for a State to tax the same subject matter. This was the effect achieved in relation to income tax in a case to which the appellants refer, South Australia v The Commonwealth (1942) 65 CLR 373. In other areas of taxation, where the Commonwealth has not (Page 6) legislated, it remains both politically and practically possible for the States to impose taxation; an example of such a tax would be land tax.

9 The power of the State Parliaments to legislate stems in each case from the Constitution of the relevant State. In relation to Western Australia, s 2 of the Constitution Act 1889 (WA) ("the State Constitution") empowers the State to make laws for the "peace, order and good government of Western Australia". That is a very extensive grant of legislative power. The words "peace, order and good government" are to be understood as conferring ample and plenary power on the States to legislate for any matter having a connection with the State (Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1). The State can make any "fact, circumstance, occurrence or thing" in or connected with the State a subject of legislation (Broken Hill South Ltd (Public Officer) v The Commissioner of Taxation (New South Wales) (1937) 56 CLR 337, at 375 per Dixon J).

10 That broad legislative power in the State Constitution is qualified in only three ways. First, as I have noted, in some very limited areas the Commonwealth Constitution provides that the Commonwealth's legislative power is exclusive. That prevents the State from validly legislating at all in that area. Secondly, in some cases, as I have noted, the State can validly legislate, but if there is a valid Commonwealth law inconsistent with the State law, then the Commonwealth law will prevail while it is in operation. Thirdly, some State Constitutions have some restrictions relating to the way in which legislation concerning particular subject matters can be passed, such as s 73 of the State Constitution.

11 So far as the State Constitutions are concerned, unless there is some particular provision in the State Constitution prescribing the "manner and form" for amending particular parts of the Constitution, then the State Parliament is free to amend the State's Constitution in any way it sees fit. That is, the State Constitutions can generally be amended as easily as any other Act. As the Privy Council has said, they occupy "precisely the same position as a Dog Act or any other Act, however humble its subject matter" (McCawley v R [1920] AC 691 at 704).

12 The Commonwealth Constitution can be altered only in the manner provided by s 128 of the Constitution. There is no express power conferred on the Commonwealth Parliament to pass laws proposing amendments to the Constitution. However, such power is implied by the first paragraph of s 128, which provides that a proposed law for the alteration of the Constitution must be passed in a particular manner by
(Page 7) each House of the Commonwealth Parliament, as part of the process of altering the Constitution. The Commonwealth Parliament, then, can propose an alteration to the Constitution to include in it a matter over which the Commonwealth, at the time of passing the law for the proposed change, has no power at all. This was what happened in relation to the referendum concerning local government, to which the appellants refer. The Commonwealth Parliament has no power over local government. However, pursuant to s 128, it passed a law submitting to the electors the question of whether the Commonwealth Constitution should be amended so as to make provision for local government.

13 Once a proposed law for the alteration of the Commonwealth Constitution is passed by both Houses of the Parliament of the Commonwealth in the manner prescribed, it must be submitted to the electors in each State and Territory. If it is passed by the electors in the manner prescribed by s 128, it is to be presented to the Governor-General for the Queen's assent.

14 If it does not so pass, then the referendum fails and the Constitution is not amended. However, the failure of a referendum does not prevent the Commonwealth from proposing amendments on the same subject matter in the future. Nor does the failure of a referendum question either expressly or impliedly prohibit either the Commonwealth Parliament or the Parliament of any State from passing legislation which is otherwise within its power and which touches on the same subject matter as the proposed referendum question. Against that background, I now turn to the appellants' assertions.”

25.This short but comprehensive summary highlights the fundamental misconceptions in Mr Kraan’s submissions, to which I will now return.[11]

Submission 5

26.Mr Kraan’s fifth submission is:

“It is my understanding that the council is not a sovereign entity but I am a sovereign man.”

27.I will assume by this submission that Mr Kraan is stating that:

1. he is not subject to the laws of the Federal and State parliaments; and
2. he is repeating his submission questioning the power of the Council to bring this criminal prosecution.

[11] Although this summary applies to the Western Australian State Constitution, the overall description of the Australian Constitutional structure and how the States fit within it applies equally to Victoria.

28. As stated above, Mr Kraan as a person residing in this country is subject to its laws made by the Federal and State Parliaments. The legal basis for the existence of local government is set out above. His submission is dismissed.

Submission 6

29. Mr Kraan’s sixth submission is:

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

30. This is a restatement of section 106 of the Commonwealth Constitution. It has no bearing on the legal question as to whether the Council is legally empowered to bring this prosecution, or to this Court’s jurisdiction to hear the proceeding.

Submission 7

31. Mr Kraan’s seventh submission is:

“109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

32. This is a restatement of section 109 of the Constitution, the function of which is described by the Western Australian Court of Appeal in Glew’s case. Section 109 has no bearing on the question of the power of the Council to bring this prosecution, or to this Court’s jurisdiction to hear the proceeding. For the avoidance of doubt, I agree with the submission of the Council that there is nothing about this proceeding that conflicts with any Commonwealth legislation, as it is the exclusive domain of the Victorian Government to make laws with respect to local government.[12]

[12] Council submissions, 27 April 2017, page 6, paragraph 7.

Submission 8

33. Mr Kraan’s eighth submission is:

“80. The trial or indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed within any State the trial shall he held at such place or places as the Parliament prescribes.”

34. This is an attempted restatement of section 80 of the Constitution, which provides:

“80  Trial by jury

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.”

35. Section 80 is not relevant to these proceedings. As stated by the Council, first these are not offences against a law of the Commonwealth. Second, Mr Kraan has been charged on summons for summary offences pursuant to the Criminal Procedure Act 2009. He has not been charged with any federal indictable offences.

Submission 9

36. Mr Kraan’s ninth submission is:

“In 1996 the High Court Australia, section 71 Cable Principal declared the Commonwealth indivisible with 1 judicial power not different rules for different states. In September 5^th 2006, I’d like you to refer to the monumental case Forge vs. Australian Securities and Investments. All 7 high court judges declared the Constitution of Australia remains supreme.”

37. The decision of the High Court in Kable v the Director of Public Prosecutions for New South Wales[13] has no bearing on this criminal prosecution. Insofar as Mr Kraan relies on this decision to support his argument that this prosecution has not been properly brought, I reject that submission for the reasons given above. The same must be said in relation to the decision of Forge v ASIC.[14]

[13] (1996) 189 CLR 51.

[14] (2006) HCA 44.

Submission 10

38. Mr Kraan’s tenth submission is:

“Any council laws that conflict with Common Law are illegal.”

39. Mr Kraan does not elaborate on what aspects of the common law are in conflict with the council laws. This statement is, in any event, plainly incorrect. The Victorian Parliament may make laws within its grant of legislative power, and may override inconsistent common law in doing so. To the extent that this submission questions the legal authority of the Council to bring these proceedings, it is rejected.

Submission 11

40. Mr Kraan’s eleventh submission is:

“In relation to Council rates, rates are a tax. The Local Council has an ABN number 32 210 906 807, therefore they are a corporation. No ABN company in Australia is able to charge land tax as we the people are now aware of this. Under freehold, and the sole owner of my property and under common law what legal standing does Cardinia Shire Council have to charge land tax? The only legal body that can charge land tax is the Commonwealth Australian Taxation Office. I want to the council to please supply me with a detailed invoice including GST for the services and duties performed on my property.”

41. Under the Local Government Act 1989, Part 8, Local Governments may charge rates on land. Section 154 provides:

“154   What land is rateable?

(1)Except as provided in this section, all land is rateable.”

42. The Council has explained that it is required to have an ABN in order to charge and pay GST applicable to commercial activities on behalf of the Victorian Government. They have submitted that the requirement for ABN’s is not limited to private corporations, and applies to government organisations engaged in commercial activities.

43. Mr Kraan has been unable to establish any basis for this Court to hold that the Council’s administration of rates is unlawful and his submission is dismissed.

Submission 12

44. Mr Kraan’s twelfth submission is:

“I purchased my property from the crown and under freehold, can the Cardinia Shire Council provide me with a signed contractual agreement that they have legal authority over my property?”

45. This submission is misconceived. The legal basis for the Council’s power to regulate private land use within the parameters of the Local Government Act 1989 and local laws, is set out above. The submission is dismissed.

Submission 13

46. Mr Kraan’s thirteenth submission is:

“I Ronald W Kraan do not wish to contract with Cardinia Shire Council, ABN 32 210 906 807. Their efforts to obtain monies in the past and in the future for any alleged offences fraudulent and illegal.”

47. This submission is misconceived. The Council’s ability to charge rates, or to impose fees and charges, and to pass any laws it considers necessary for or with respect to its objectives, functions, powers, duties or responsibilities of local government is lawful for the reasons set out above. Further, there is no legal requirement that the Council enter into a contract with a citizen in order to do so. The submission is dismissed.

Further submissions of the Accused dated 29 May 2017

48. For ease of reference I will refer to Mr Kraan’s submissions numerically in the order in which they appear in his second set of submissions.

Submission 14

49. Mr Kraan’s fourteenth submission is:

“I have been subject to Cardinia trying to obtain monies by menace which is tort feasor for a very long time. It has come to this point I would like to submit on this basis that this court or the Court does not have the jurisdiction to bring a case upon me.”

50. The allegation that the Council has no power to bring this proceeding has been addressed above and dismissed.

51. This Court’s jurisdiction to hear the matter is conferred by sections 4 (Establishment of the Magistrates’ Court), 7 (Appointment of Magistrates) and 25 (Extent of Jurisdiction) of the Magistrates’ Court Act 1989. Section 25 sets out the extent of the Court’s jurisdiction and provides in section 25(1)(a), inter alia, that the Court has jurisdiction to hear and determine all summary offences. The jurisdiction of this Court in respect of summary criminal matters is commenced by the process of filing a charge sheet, as described in section 6 of the Criminal Procedure Act 2009. As stated above, there are no apparent irregularities with the manner in which the Council has brought this proceeding. The submission is dismissed.

Submission 15

52. Mr Kraan’s fifteenth submission is:

“I forward documents that prove beyond reasonable doubt that Councils known as Local Government are working illegally.”

53. This submission has been addressed and dismissed for the reasons given above. In considering and dismissing this submission, I have reviewed each of the documents that Mr Kraan has appended to his legal submissions, which bear no relevance to the question of the Council’s power to bring this proceeding.

Submission 16

54. Mr Kraan’s sixteenth submission is:

“Reference 1988 referendum, 66.42% of all Australian voted no to the establishment of Local Government, no to the continuance of Local Government, no to the empowerment of Local Government and no to the establishment of by-laws by Local Government.”

55. This submission has been considered and dismissed for the reasons given above.

Submission 17

56. Mr Kraan’s seventeenth submission is:

“This proves beyond reasonable doubt that 1987 of the Environment Act is null and void. Bob Hawke advanced the Local Government Act 1986 without referendum, from ab initio is null and void and treason.”

57. This is a prosecution brought pursuant to the Building Act 1993. The Environment Protection Act 1970 has no relevance to the current prosecution.

58. The Court has considered and dismissed the submissions in relation to referenda concerning the federal recognition of local government.

59. The submission in relation to former Prime Minister Bob Hawke and the submission that the enactment of the local government legislation amounts to treason, has no basis in law.

60. This submission is dismissed.

Submission 18

61. Mr Kraan’s eighteenth submission is:

“2.5 of the Local Government Act has to be set up as a body corporate. Section 3 of that Act states it has to be done as a natural person. Councils are not set up as a corporation as per 2001 of the Federal Corporations Act. They should have an ACN number, but run as a business with an ABN number.”

62. None of the above statements are correct propositions of law. I generally agree with the submissions of the Council in response.[15] The submission is dismissed.

[15] Council submissions, 9 June 2017, page 2, paragraph 5.

Submission 19

63. Mr Kraan’s nineteenth submission is:

“The 1988 referendum by the will of the people denied the ability for them to exist. If Local Government is inconsistent with the Commonwealth Constitution, it is null and void. If a State Law is inconsistent with the Commonwealth, it is also null and void. Refer 53 subsection 4 of the Federal Trade Practices Act 2001.”

64. These propositions have no accurate legal foundation, or have been considered and dismissed previously.

Submission 20

65.  Mr Kraan’s twentieth submission is:

“Councils are trading as companies, they should be trading as a corporation. They claim to be trading as a corporation and must be registered with ASIC. They are not.”

66. These propositions have no accurate legal foundation, or have been considered and dismissed previously.

Submission 21

67. Mr Kraan’s twenty-first submission is:

“In this case the problem is the Local Government claim authority over my land, but I purchased my property under fee simple that alienates the rights to the crown over my land. The only thing the crown has access to is the minerals in my land. Councils are not a crown authority and have no authority over my land.”

68. These propositions have no accurate legal foundation, or have been considered and dismissed previously.

Submission 22

69. Mr Kraan’s twenty-second submission is:

“At no time did I sign a wet ink signature contract giving Cardinia Shire authority over my land. Please supply me with a copy of that agreement.”

70. These propositions have no accurate legal foundation. There is no legal requirement that the Council enter into a contract with an owner of land, as its ability to regulate land use and charge rates is imposed by legislation, regulations and local laws. The submission is dismissed.

Submission 23

71. Mr Kraan’s twenty-third submission is:

“My questions are directed to your honor:

(1)Can you honor be unbiast?

(2)Has your honor sworn on oath to allegiance to Queen Elizabeth II and the crown under 51 of the Federal Crimes Act?

(3)Has your honor sworn on oath of office on the State Constitution?

(4)Does your honor have a letter of commission with the royal identifier on it?

(5)I question the jurisdiction of this court.”

72. I have explained the legal basis of this Court’s jurisdiction above, as well as the provisions which provide for the appointment of Magistrates. Mr Kraan’s submissions about the appointment process of Magistrates or the jurisdiction of this Court are inaccurate and have no legal basis.

73. I understand by Mr Kraan’s submission that he makes application for me to disqualify myself on grounds of judicial bias. The test for apprehension of bias has recently been considered in detail and summarised by the Supreme Court in Kuek v Phillips[16] in which Forrest J cites the High Court test in Johnson v Johnson:[17]

“[T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”

[16] [2017] VSC 332, paragraphs 60 ff.

[17] (2000) 201 CLR 488 at paragraph 11, cited at paragraph 76 of Kuek v Phillips.

74. Mr Kraan does not state any grounds upon which the bias is said to arise. I am not satisfied that any fair-minded lay observer might reasonably apprehend that the Court has brought an impartial and unprejudiced mind to the matters before it. There is no proper basis for this application, nor is there any basis articulated at all. The application is dismissed.

Submission 24

75. Mr Kraan’s twenty-fourth submission was made orally at the second hearing, when he questioned the right of Counsel to appear on behalf of the Prosecution. He has produced no evidence to the Court that Ms Sheridan-Smith is not entitled to practice or appear on behalf of the Council. She denies these allegations as set out in the Council’s submissions and I have no reason to doubt that she is unqualified to represent the Council.[18] His submission is dismissed.

[18] Council submissions, 9 June 2017, paragraph 11.

Submission 25

76. Mr Kraan cites various cases, which he submits: “All of which prove the fact that the Courts and the Local Government are UNLAWFUL”. The cases listed are without citation, however, upon review of the case names, they are mainly a list of High Court cases (I note that there are many cases which bear the citation Queen v Davidson in the State courts, and it is not possible to determine from the submission which of them Mr Kraan relies on). None of the cases cited by him support that proposition for which he contends. The submission is dismissed.

77. Mr Kraan attaches various documents to his submissions dated 29 May 2017. None of the additional documents provided by Mr Kraan have any legal bearing on the validity of this prosecution, or the Court’s jurisdiction, and I generally agree with the Council’s submissions made in relation to each of them.[19]

[19] Council submissions, 9 June 2017, paragraph 12.

78. The parties are requested to speak to the Registry about obtaining a date for the contested hearing.

79. I will now hear the parties on the matter of costs.