(d) The appellant wrote five letters to Mr Cribb raising matters that he also sought to rely on in his defence in the trial (ts 32). He also wrote to ASIC seeking evidence of the 'fundamentals of its existence' (ts 34). In effect, the appellant sought to raise issues concerning the validity of the Corporations Act and the ASIC Act (ts 34).
(e) The matters sought to be raised by Mr Hopes did not constitute a reasonable excuse for the purpose of s 475(11) and s 530A(6B) of the Corporations Act (which provide that a person will not contravene the requirements imposed by s 475 and s 530A to the extent that the person has a reasonable excuse). A reasonable excuse for the purpose of those sections was an excuse that related to an officer's ability to comply with the obligation to provide a liquidator with a statement of the company's affairs and the company's books (ts 34).
The appellant's affidavits 24 The appellant made two affidavits that were filed and served in the appeal. The first affidavit (sworn on 22 December 2015) was filed following a directions hearing in which the appellant (through Mr Piccinin who was permitted to speak on behalf of the appellant) indicated that he had further documents that would establish the invalidity of the Corporations Act. The second affidavit (sworn on 8 April 2016) was filed without reference to the court.
25 The first affidavit attached 40 documents. In summary, the documents comprised:
(a) Correspondence between the appellant/Mr Piccinin and the Federal Court registry. The effect of the correspondence was to contend that the Federal Court Rules 2011 (Cth) had not been validly made as they did not receive Royal Assent 'where the Sovereign is mandated by covering clause 5 of the Act of 1900' (email dated 27 June 2014, attachment 'HH-001'). (b) Correspondence between Mr Hopes and various officers of the respondent, in effect challenging the appointment of Mr Cribb as liquidator pursuant to the Corporations Act. The correspondence reflected what I have identified below as the appellant's principal argument in the appeal.
(c) Correspondence between Mr Hopes and lawyers employed by the respondent also concerning the validity of the Corporations Act and the ASIC Act. Much of the correspondence was in the form of demands that the respondent make admissions regarding the arguments advanced by the appellant as to why legislation such as the Corporations Act and the ASIC Act was invalid.
(d) Freedom of information requests for 'the instruments for the establishment of the Corporations Act … to be lawfully recognised within the Commonwealth of Australia, as required and pursuant to clause 5 of the Commonwealth of Australia Constitution Act 1900, that is made pursuant to the Sovereign's legislative powers and has receive the Sovereign's Royal Assent "in the sovereignty of the United Kingdom'' pursuant to clause 2' and a reply from Treasury.
(e) A 'Notice of Understanding' dated 21 July 2015 and sent by the appellant to the respondent and related correspondence - the 'notice' is further summarised below.
(f) Correspondence between the appellant and the Department regarding covering cl 2 and covering cl 5 of the Commonwealth of Australia Constitution Act and related correspondence.
(g) Correspondence between the appellant and the Department of the Attorney General and the Treasury regarding covering cl 2 and covering cl 5 of the Commonwealth of Australia Constitution Act and related correspondence.
(h) Correspondence between Mr Piccinin and the Foreign and Commonwealth Office.
26 It is not necessary to further summarise the documents annexed to the appellant's first affidavit other than to note two matters. First, a document entitled 'Notice to Produce', dated 15 April 2015 and sent by the appellant to the respondent was referred to in the various documents tendered by the appellant as exhibit A3. The 'notice' attached what was said to be transcript of a meeting between the appellant, Mr Piccinin and officers of the respondent. According to the transcript, the appellant and Mr Piccinin pressed their arguments concerning the alleged invalidity of the Corporations Act and by implication, the ASIC Act during the meeting. In effect, the 'notice' demanded that the respondent produce evidence of the validity of those Acts. 27 Second, the 'Notice of Understanding' dated 21 July 2015 foreshadowed the appellant's defence to the charges alleged against him:
It has been part of my defense statement, and evident by ASIC's failure to deny such material points, that a prosecution under cover of the Corporations Act 2001 is without law basis for the main reason that both the ASIC Act, and the Corporations Act, cannot be valid law as they bear the assent of an office of the Monarch that does not exist in law. It has been agreed at every opportunity provided, by failure to deny, that the 2004 finding of the Department of the Prime Minister and Cabinet on the Royal Style and Titles Act 1973 is without a head of power and thus the Act invalid and thus unable to create an office of the Queen for assent purposes. That you have not and will not challenge this material point that the Queen of Australia cannot provide assent for Commonwealth laws is taken that it is settled and the ASIC Act 2001 and the Corporations Act 2001, having received assent in the name of the Queen of Australia, are not Commonwealth laws.
28 The documents attached to the appellant's affidavit did not constitute evidence, apart from the responses to the freedom of information requests that established that the Department did not have in its possession an instrument relating to the 'head of power' for the 1973 Act. The balance of the documents merely incorporated the appellant's arguments or asserted that the respondent had made admissions by not responding to those arguments - 'admissions' about the alleged invalidity of the Corporations Act and the ASIC Act. Accordingly, I have reviewed the documents to ensure that the appellant's arguments have been fully identified, especially as proposed grounds of appeal 1 and 2 complain that the appellant was denied a fair opportunity to put those arguments in the trial. However, I have not admitted into evidence in the appeal either of the affidavits made by the appellant as they do not contain evidence (and, in any event, some of the attached documents were created after the trial and the appellant has not explained why the balance of the documents were not produced at the trial). 29 The second affidavit made by the appellant attached a number of documents created by the appellant well after the appeal had been commenced. Again, the documents were similar in content to the documents attached to the appellant's first affidavit. The documents were not evidence and did not alter or enlarge the substance of the appellant's argument.
The appellant's principal argument in the appeal
30 The principal argument made by the appellant at trial and in his application for leave to appeal is apparent from the documents summarised above. The appellant contends that:
(a) he was aware of freedom of information requests made by Mr Piccinin and others to the Department for the 'instrument' that empowered Parliament to enact the 1973 Act (the 'head of power') to be identified and produced; (b) the Department advised that no such instrument could be produced and accordingly, it was to be inferred that the instrument did not exist;
(c) s 51 of the Constitution did not confer legislative power on the Commonwealth Parliament to enact the 1973 Act and no other instrument had been identified that empowered Parliament to enact the Act;
(d) the Bill for the Corporations Act (and all other Bills passed by the Commonwealth Parliament since the commencement of the 1973 Act) had been presented to the Governor-General for assent by Her Majesty adopting the style and title 'Queen of Australia';
(e) as there was no 'evidence' that Commonwealth Parliament had power to assent to Her Majesty adopting that style and title (as Parliament had purported to do in the 1973 Act) there was no 'evidence' that the Corporations Act (and all other Acts of Commonwealth Parliament since the commencement of the 1973 Act) had validly received the Royal Assent.
31 The appellant referred in his written submissions to covering cl 2 and covering cl 5 of the Commonwealth of Australia Constitution Act and submitted that:
All of the appeal grounds concern a common right of the appellant in that this court owes the appellant the Crown's protection, a reciprocal act of to the appellant's allegiance to the Crown enshrined in law by birthright and the joint performance of the Preamble and second clause, held to strict performance held by the fifth clause, of the Act to Constitute the Commonwealth of Australia 1900 (UK) as expressed to be in force for which departure, the appellant contends, is treason.
32 The appellant also contended that the reference to assent by or in the name of the Queen in s 2(3) of the Constitution Act 1889 (WA) was not to the Queen of Australia. Consequently, legislation enacted by State Parliament such as the Magistrates Court Act2004 (WA) and the Criminal Appeals Act had not been assented to in the name of the Queen as required by s 2(3) of the Constitution Act 1889.Proposed grounds of appeal 1 and 2
33 Proposed grounds 1 and 2 allege that the appellant was denied a fair trial as he was prevented from obtaining assistance from Mr Piccinin and because the magistrate had failed to 'properly disclose the options of the court procedure to the defendant for his understanding'. The appellant's written submissions focussed on an alleged failure to allow Mr Piccinin to assist the appellant, with the result, so it was contended, that the appellant had been unable to adduce all of the evidence that was relevant to his defence (and I infer, to fully develop in his closing submissions the argument that the Corporations Act and the ASIC Act were invalid).
34 There is no merit in either of proposed grounds 1 or 2.
35 First, as has been noted, the appellant requested that he be able to consult Mr Piccinin as his 'record keeper'. The magistrate acceded to that request and the appellant consulted with Mr Piccinin before and during the cross-examination of Mr Cribb.
36 The appellant contended in his written submissions that the transcript was not an accurate record of what had occurred during the trial. It appears that the transcript commences a short time after the matter was called, appearances taken and at some point during the magistrate's primary explanation of the trial procedure. However, the terms in which the appellant requested assistance from Mr Piccinin (ts 8) do not suggest that this topic had been raised earlier in the proceedings. There is no break or inconsistency in the balance of the transcript that would suggest that it is an incomplete record of what occurred in relation to the appellant's request for assistance.
37 Second, and in any event, it is apparent that the appellant misapprehends the role that can be played by a person who is not a legal practitioner but who is permitted by a court to assist an unrepresented party (having regard to the prohibition contained in s 12 of the Legal Profession Act 2008 (WA)). The term 'McKenzie friend' is derived from the decision of the English Court of Appeal in McKenzie v McKenzie [1971] P 33. The Court of Appeal applied the statement of Lord Tenterden in Collier v Hicks (1831) 2 B & Ad 663, 669; 109 ER 1290, 1292 that:
Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the Court as settled by the discretion of the justices.
38 Accordingly, a McKenzie friend may assist a self-represented party before the court by, for example, making notes and giving suggestions to the party but he or she does not perform the role of an advocate or representative: Scarce v Killalea [2003] WASCA 81 [47]; Santos v The State of Western Australia [No 2] [2013] WASCA 39 [10]. A court has inherent jurisdiction to determine the extent to which a McKenzie friend may take part in proceedings. However, it is only in rare and exceptional circumstances that a McKenzie friend is permitted to address the court or otherwise take an active part in proceedings: Schagen v The Queen (1993) 8 WAR 410, 412 (Malcolm CJ). 39 Third, for the reasons developed below, the submission that the appellant claims he was unable to effectively and fully make concerning the alleged invalidity of the Corporations Act and the ASIC Act is misconceived. A substantial miscarriage of justice would not have occurred even if either of proposed grounds 1 and 2 might have been decided in favour of the appellant: refer s 14(2) of the Criminal Appeals Act (it could not be said that there had been a significant denial of procedural fairness at trial even if there was merit in the appellant's complaint: refer Petersen v The State of Western Australia [2016] WASCA 66 [23] (McLure P).
Proposed ground of appeal 3
40 At the heart of the appellant's principal argument is the proposition that the Commonwealth Parliament lacked power to enact the 1973 Act - at least, in the absence of an 'instrument' conferring power. An analogous argument was rejected by Hayne J in Joosse v Australian Securities and Investments Commission [1998] HCA 77; (1998) 159 ALR 260 and see also Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302. The effect of the 1973 Act on the status of a person for the purpose of migration and related matters has been considered by the High Court on several occasions. The reasoning in those cases does not suggest that the Commonwealth Parliament lacked power to enact the 1973 Act (with the consequence that Bills passed by Parliament since the commencement of the Act had not received the Royal Assent). Further, the history of legislation enacted to assent to changes in the royal style and titles of the monarch briefly summarised below does not suggest that the Commonwealth Parliament lacks legislative power in relation to such matters.
41 Accordingly, I did not direct that notices be given under s 78B of the Judiciary Act 1903 (Cth): see O'Connell v The State of Western Australia [2012] WASCA 96 [90] (a matter that is trivial, unarguable, frivolous or vexatious is not a matter arising under the Constitution or involving its interpretation) and Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 [42] (if the alleged 'constitutional issue' is unarguable or vexatious, there is in truth no constitutional issue at all).
The royal style and titles legislation
42 A history of the royal style and titles of the monarch is summarised in two works by Professor Anne Twomey: The Chameleon Crown - the Queen and Her Australian Governors (2006) (chapter 9) and The Australia Acts 1986: Australia's Statutes of Independence (chapter 6). The history is partly recorded in the second reading speeches for the Bills that became the Royal Style and Titles Act 1953 (Cth) (the 1953 Act) and the 1973 Act and, so far as is relevant to Australia, can be traced in a succession of legislative enactments: the Royal and Parliamentary Titles Act 1927 (Imp), the Statute of Westminster 1931 (UK), the Royal Style and Titles (Australia) Act 1947 (Cth), the 1953 Act and the 1973 Act.
43 Briefly stated, the royal style and titles of the monarch were originally determined in the United Kingdom. The Royal and Parliamentary Titles Act authorised the King to issue a royal proclamation altering the royal style and titles in accordance with recommendations made by an Imperial Conference. The change authorised by the Act was declared in Australia by way of proclamation in June 1927 (Twomey, The Chameleon Crown, 104).
44 The object of the Statute of Westminster was to 'give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930'. The preamble to the Statute then recorded a convention agreed at those Conferences:
And whereas it is meet and proper to set out by way of preamble to this Act that … it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.
45 The purpose of the Royal Style and Titles (Australia) Act was to give assent to an alteration in the royal style and title consequent upon the enactment of the Indian Independence Act 1947 (UK). The preamble to the Act recited that the Act gave effect to the convention recognised in the preamble to the Statute of Westminster. 46 The 1953 Act gave effect to a further agreement made at a Prime Ministers' conference held in London in December 1952. It was agreed that each member country of the British Commonwealth should use, for its own purposes, a form of the royal style and titles that suited its particular circumstances but retained a substantial element that was common to all countries.
47 The preamble to the 1953 Act again recited the convention recorded in the Statute of Westminster and the agreement made at the Prime Ministers' London conference. Section 4(1) of the Act provided for the assent of the Commonwealth Parliament to the adoption by the Queen, for use in relation to the Commonwealth of Australia and its Territories, the style and titles set out in the schedule to the Act and to the issue of a royal proclamation. The royal style and titles provided for in the schedule was 'Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith'. Accordingly, the style and titles of the Queen under the 1953 Act included a reference to 'Queen of Australia'.
48 Section 2(1) of the 1973 Act also provided for the assent of the Commonwealth Parliament to be given to the adoption by the Queen of the royal style and titles set out in the schedule in lieu of the royal style and titles set out in the schedule to the 1953 Act and for the issue by the Queen of a royal proclamation for that purpose. The royal style and titles provided for in the schedule was ?Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth?.
49 The second and third reading speeches for the Bill that became the 1973 Act indicated that it was proposed that the Queen would sign the proclamation and personally give assent to the Bill during a forthcoming trip to Australia. That occurred in October 1973 (Twomey, The Chameleon Crown, 109; Commonwealth, Government Gazette, No 152 (19 October 1973) 5).
The Royal Style and Titles Act 1947 (WA)
50 The Western Australian Parliament enacted legislation concerning the royal style and tiles in 1947: Royal Style and Titles Act 1947 (WA). The Act was amended in 1953, including by amending the schedule to accord with the royal style and titles adopted in the schedule to the 1953 Act. The Act was not amended following the passage of the 1973 Act. However, the royal style and titles declared in the Western Australian Act was amended to that adopted in the schedule to the 1973 Act by a proclamation made in December 1973 (Twomey, The Chameleon Crown, 113).
The power to enact the 1973 Act
51 Professor Twomey noted that a briefing paper prepared by the Commonwealth Attorney-General's Department in 1974 identified four sources of power to enact the 1973 Act (The Australia Acts, 452, citing Commonwealth Attorney-General's Department, Briefing Paper, 'The Queen of Queensland', November 1974, National Archives of Australia, 1209 1974/6962):