Skyring v Moore

[1990] HCATrans 142

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B19 of 1990

B e t e e n -

ALAN GEORGE SKYRING

Applicant

and

JOHN MOORE

Respondent

Electoral Petition

Summons for Directions

Application to remit fees

DAWSON J

Skyring(lO)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 26 JUNE 1990, AT 9.51 AM

Copyright in the High Court of Australia

B2Tl/1/RB 1 26/6/90

HIS HONOUR:	Mr Skyring, you appear in person.
MR A.G. SKYRING:	Yes, Your Honour.
MR J. McGILL:	If it please the Court, I seek leave to appear

for the Electoral Cotmnission to enter an appearance

and be represented and heard under section 359 of the

Act._ - ( instructed by the Australian Government Solicitor)

HIS HONOUR:	Yes, Mr McGill.
MR McGILL:	I should say, Your Honour, I should also apply

separately for leave for the Electoral Cotmnission

to appear by counsel under section 370 of the Act.

HIS HONOUR: Yes, leave is granted. Yes, Mr Skyring.

MR SKYRING:  Your Honour, the essential points that have been

causing me some concern actually over a number of

years, as evidenced by the appearances I have had before this Court in other connections, I think I have fairly concisely set out in the petition itself,

namely the general background I had summarized in the
body of the petition and how this had come about, if

I might just - - -

HIS HONOUR:	Might I interrupt for a moment?
MR SKYRING:	Yes, of course.

HIS HONOUR: There are two matters, are there not? There is a

question of the petition itself and there is the
question of the summons to be relieved of fees,

costs and charges.

MR SKYRING:  Yes, Your Honour. I guess you really need to say

how the matter needs to be handled.	I will take it
however you want.

HIS HONOUR:  I think I ought to indicate that as far as the

petition itself is concerned, it is obvious that I

am not in a position to hear that today and it is a

question of what we do with that.

MR SKYRING: Fair enough.

HIS HONOUR:	Perhaps it may be the best course to hear the matter of the summons first, that is the fees and costs,
and then we can come to the other later and see what
is to be done with the petition.

MR SKYRING:  As you will, Your Honour. It is a fairly large

matter, that petition.

HIS HONOUR:  I cannot go into the substance of that today. There

just simply is not time.

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Skyring(l0)

MR SKYRING:	No, I can appreciae that.
HIS HONOUR:	But we have to decide what is to be done with it.

Now, so far as the fees and costs are concerned,

what do you have to say about that, Mr Skyring?

MR SKYRING: Well, I suppose, really, in a sense, this carries

on _from my appearance before Justice Gaudron before

the event wherein I basically raised the general

proposition in terms of - well, the general conduct

of the legal system in the nation generally. As I

understood it, Magna Carta still rules and in so

far as that is a very high level statute, 2

guidance-type, if you like, which is one of the
very fundamental and inherited statutes which
forms the basis of our whole legal system, it

seemed to me that there is an item in there which

is never broached in public debate.	The wording
which - it is the final sentence:

To no man shall we sell,	defer or deny
justice or right.

That is the fundamental point. Now, we hear quite

a bit from time to time in respect of the denial

and the like. No one ever gets on to this matter

of selling justice and what is actually involved
in that notion. Now, to me, although I come into
this as a comparative layman, so to speak, I have had

the benefit I would see - others might wonder about

that - of an engineeer's discipline. As the old

adage goes, "Doctors' mistakes are buried; lawyers'
mistakes are paid for but engineers' mistakes remain

for all posterity to see", so like the rest of the

community, we do not like making mistakes either
because egg sticks on the face and it is not a

good thing to have so we also have the benefit,

of course, of having to put our ideas into practice

and physically change the form of the environment, if you like, and there is a very strict discipline

there. You get to know whether your thinking is

right or not.

·

Now, I have survived in that game for 25 years

or so and while I have made the odd minor boo boo,

there would be nothing drastic that I have ever
done wrong so, against that background, I have

found that I have had an awful lot of problems in

my own engineering field and it started off, is it

me that is wrong or is it the system that is wrong.

I thought I was wrong at the start; the more I

questioned and asked, I got the impression that

there was something much bigger at stake and it

was this which led me in the late seventies on

to the approach that there is something wrong with

the financial system; that was the short effort,

as I got on to it, and then I went on from there

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Skyr ing ( l 0)

seeking to find out, "Well, if it's wrong, what

ought to be right" or "how ought it be configured

that can get over some of the problems which have

been experienced" and surely there is an awful lot

of them around if you care to look.

_ Anyway, suffice to say, I was fortunate enough

tci ~et on to a text of Sir Ivor Jennings's Magna Carta.

HIS HONOUR:  Well, this is rather getting to the main question.

So far as the fees are concerned, you did make an application to Justice Gaudron and she did not

accede to that application. That is correct?

MR SKYRING:  Yes. I took from the judgment which is included

in exhibit A - - -

HIS HONOUR: Yes.

MR SKYRING: 

I got the impression that she did not want to

prejudge the issue which was fair enough because it
involves this whole currency question and how we
finance the activities generally.

HIS HONOUR: 

Well, now, has anything changed since

Justice Gaudron refused to accede to the application?

MR SKYRING:  Well, it is to me rather pertinent, Your Honour,

that - I have since sought to work process and I

was unable, as evidenced here, to draw John Moore

to actually front up and give account of himself

as to why it is that he as a legislator - - -

HIS HONOUR: 

But what I am putting to you, Mr Skyring, is

this: that Justice Gaudron thought the matter would
have to go ahead further in order to discern what

there is in yo.ir submissions before she was prepared

to make any order under the relevant rule of Court.

MR SKYRING: Well, I had presumed that the - well, the way I

read her - - -

HIS HONOUR:  Things have not progressed very much yet, have

they, on this matter .....

MR SKYRING:  ..... there is a general proposition here, the

way the courts currently deal with costs, it is sort of

after the event type thing, so you are - - -

HIS HONOUR: Well, not necessarily but Justice Gaudron

in relation to fees and costs at this stage.

MR SKYRING:  At the time, yes, v1ell I took that as before the

event. She said there is a whole lot of things you

have got to do, well okay, I have sought to do all

of them as set out - - -

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Skyring( lJ)

HIS HONOUR:  You have done some of them but we have not

really progressed any further on the matters of

substance, have we?

MR SKYRING:  Well, not greatly. I guess, as I see it, there

is a whole general problem which really needs to

be addressed, and this of course raises the matter

of t-h e correct for um to do th is in .

HIS HONOUR:	But what I am asking you is has any .....
MR SKYRING:	Well, I suppose taking your point, things have

not progessed far, the question is how to progress

them? This is the -

HIS HONOUR:  No, well, that is something we are going to turn

ourselves later on today.

MR SKYRING: Yes. Well, in a sense, no, there is nothing

I can immediately say. It seems to me, as I

argued before her, really, what has got to happen

is that the answer to the problem and how one
can satisfactorily resolve the problem of costs

and how you pay for them, which is really the crux

of the matter, comes out in the whole hearing.

It is the nature of the process and this is why

I said, it is a matter of which forum is the best one to conduct this in.

Now, it is perhaps relevant in respect of that

that there was a section of Justice McPherson's
judgment that I cited in the petition in respect

of the currency. Perhaps I should also read you

out the sentence which immediately preceded that:

Finally, some reference was made to

s. 115 of the CONSTITUTION and to the

undesirability of the printing, issue and

circulation of paper money in which the

taxpayer said he might ultimately be obliged

to pay the assessment once this appeal

not it is desirable to return to the gold

failed, if it did. The question whether or

standard, to cease issuing paper money or

to acknowledge any of. the various forms of

credit, financing and banking of the kind

that were referred to in argument before

me is, of course,, a matter entirely for

Parliament and not for this Court.

Now, that point is taken but there is a pretty

hefty interaction between the activities of the

courts and the activities of tl:e legislature. Now,

as I sort of understand the system, again, in my

engineer's type approach, the legislature basically

is there strictly to advise the Crown as to what

the law should be. Now, there is a lot of notions

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that go around with that; that certainly that is not
the common perception but as I understand it from my

reading that is the point. Now, given that the system

is operating properly, okay, the legislature on

behalf of the community frames what it believes to

be good laws which are the guidance of wise men,

obedience of fools, as to how the affairs of

society should be conducted. Okay, so, people

steam on, do their thing, situations arise wherein

somebody says, "Well, look, you're not doing what

you should be according to the law", so it gets

referred to the court.

Now, it is in this forum then that - the usual approach, as I understand it is, the law is taken

sort of as read, as being proper and correct and it

is the particular behaviour which is generally

deemed to be at odds with the law and it is sort of

dealt with on that basis.

Now, what I am saying is that because of the

difficulty of this problem, the subtlety of what has

been going on, we have got a set of laws on the

books which are at odds with - there are the more

fundamental one that I mentioned, the net effect

of which is that we have an extremely confused

situation wherein behaviour cannot be simply

resolved by recourse to the law because the law,

itself, has got enormous conflicts in it and it

was this particular one in respect of the currency which is vital, which is why I had pointed this up.

HIS HONOUR:  But you say these questions are also tied up with the question of the remission of fees.

MR SKYRING: Yes. Well, you see, the form is - well, okay.

HIS HONOUR: I think that was the view that Justice Gaudron

took.

MR SKYRING: Okay, yes. Well, there are two facets to the

problem, of course; one is the rightfulness or

otherwise of fees being remitted anyway and the

second matter is,"Well, okay, well, if you do
remit them, what form are you going to pay them

in, pay me back?" which brings us back to our

currency question again.

HIS HONOUR:	Yes.
MR SKYRING:	So, the whole - in terms of the comment from or

that part of the judgment from Justice McPherson,

might I say now, I am not anti using all of the
more refined techniques which have been developed

since the first bank note was floated in 1633. It is

a marvellous system but there is a couple of flaws

in how the thing is applied that are causing

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enormous difficulties and my view is that if, in

fact, they could be corrected, then we could lift

the game another level.

HIS HONOUR:  Yes, I understand that, Mr Skyring, but we are

getting to the main question which you want to

ventilate.

MR SKYRING:	Well, basically, yes.
HIS HONOUR:	Yes.

MR SKYRING: It is - you see, the short answer is, look, if

in fact, you put your bank notes back to promissory

notes, I would have no objection because that was

how they started off; that is all they ever can

be. Now, it was pointed out to me by a lawyer

earlier on - back about 1984 - that bank notes were

developed as a commercial adjunct to facilitate trade. they are a promissory note, "I promise to pay" and

you pay in the Queen's money which, in terms of our

CURRENCY ACT is our legal tender, gold coin.

Now, it is a short circuited technique whereby

it is very convenient because wheeling one's little

bags of gold around is darned inconvenient and I do

not object to that but what I am saying is that it

is - the existence of that is your measure of value.

Now, in the engineering game, as has been pointed out, if we did not have a standard metre, we would not

know where we are so far as measurement of length

goes; likewise for time; likewise for mass. Now, that

is the problem; that we have had our fundamental

reference standard pulled from out under the system

and that is what is causing the confusion. So, we

have a whole scale of values that has gone completely

haywire and it has happened - it actually happened
with the way that the Bank of England was floated

in 1694. Reading the history of it, which I have

cited -

HIS HONOUR:  Now, we really are getting into the questions of substance, Mr Skyring.

MR SKYRING: Right.

HIS HONOUR:  What I really want you to turn your mind to is

whether anything of any significance has happened

since Justice Gaudron made her order?

MR SKYRING: Well, not that I can immediately think would allow

you to say, "Well, look, yes, we can do this and this"

and that would solve the problem which is - - -

HIS HONOUR: Yes. Well, then, I would not propose, if that is

so, at the moment anyway, to change the situation.

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Skyr ing ( 10)

That would mean that I would take the same view

as Justice Gaudron did because I do not disagree
with that view - in fact, I agree with it - and
nothing of significance has happened.

MR SKYRING: Right, fair enough. No, we have got to do that in ~hese proceedings and only then, I believe, can

the answer be given.

HIS HONOUR: Yes, all right. Well, perhaps, if we hear from

Mr McGill, whether he has any right to say anything

on this issue and, if he does have any right, whether

he wishes to say anything.

MR SKYRING:  I would have no objections.

HIS HONOUR:  Mr McGill.

MR McGILL:  In relation to the question of remission of fees

and charges, the only matter I wanted to point out

was that the requirement for security for costs

is a requirement under the Act, in section 356 of

the Act, and that is a mandatory requirement as is

made clear.

HIS HONOUR:	Yes, that is the two thousand
MR McGILL:	The $100 security.
HIS HONOUR:	I see, yes.
MR McGILL:	And, that is a mandatory requirement as made clear

by section 358 so that there would be, no doubt, a

power to remit the court filing fee but, in my

submission, there is no power to remit the statutory

requirement for security for costs anyway.

HIS HONOUR: Well, I am not disposed to depart from the view

that was taken by Justice Gaudron so perhaps there

is no need for you to say anything more.	Do you
want to say anything, Mr Skyring?

MR SKYRING: Well, the only point I would make in response -

you see this comes back to my point about the

conflict in the statutes; that this has got to

do with the whole matter of the way the entire

activities are financed.

Now, there are two legs, as I understand it,

to this security; one is that it is a matter of,

okay, putting your money on the line; that you are not conning the place, to use the vernacular. "You

really mean business, okay, you put your money

down and then we'll listen to you." Okay, well,

in that sense, I have gotno objection to that being

done and I would presume that, again, we have got

the basis on which one gets a refund of this anyway.

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Skyr ing ( 10)

Now, if one take the broader view that, okay, that

is sort of there on the table to indicate that you

mean business and, okay, when it is all over you get it back as a matter of course once the whole

process is concluded, and I would say that is

regardless of whether you win or lose.

HIS HONOUR: -Well, that is another question but, yes.

MR SKYRING:  Yes, but these are the sorts of problems I am

trying to get at.

HIS HONOUR:  You say the problems arise whether you win or

lose?

MR SKYRING:  No, I say my view is that I have no objection to

putting it on the table before the event which is

why I did what I did, although involved in this,

of course, is the form of payment again.

HIS HONOUR:	Yes.
MR SKYRING:	Do I put it in as bank rnt:es or legal tender.
HIS HONOUR:	Well, that is the problem that Justice Gaudron

raised with you.

MR SKYRING:	Yes.
HIS HONOUR:	Yes.

MR SKYRING: But there was two legs to that one, too. There

was the form and the amount. Now, it was a matter

of going to see what the statutory requirement was

and, okay, for the moment we are accepting the

statutes as they stand and the popular notion is

that paper money is legal tender so, as I concluded

from those proceedings, the word was, "Well, okay,

look, accept it as it is. Do in the normal manner

and that will at least get over those immediate

hurdles" and then we can address the real problem

are on about then, we can deal with later." So,	and then, as though to say to me, "Well, what you	I went through the exercise and - actually, I might
mention, those were paid on my behalf. I did not
actually pay them myself because there were others
who have provided quite considerable support for me for a number of years and, likewise, see the
sort of problems that I am trying top;:iint up so, to aid the process along, they took a hand and
put the cash on the table which allowed all the
things to be done that have to be done.

Now, again, I am not disputing that the - in

respect to the security, as I understand it, if in
fact the present notion, as I get it, if in fact one

loses then that basically goes to cover the costs

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in effect, of counsel who appear to argue the

other side of the case. That is the general notion,

is it, that -

HIS HONOUR:  I do not know that it would go very far for that

purpose, if it is its purpose, but nevertheless - - -

MR SKYRING: ~B-ut, I gather that is the historical evolution of

it and that is the sort of notion behind it, as I

understand it.

Now, this of course comes back to a much bigger

issue of the Crown's function in respect of funding

the legal process generally ..... so that is the

particular case but it is the general proposition

which is what I am really seeking to address. Now,

while we have got this - you see, if it is a matter

of me just putting the money on the table to
indicate I am in business, okay, no objection;

that is fair enough, but if it is to cover costs

in the sense I have just outlined, to go towards

financing the opposing counsel for appearing, then

this, of course, raises this notion about selling

justice which is outlawed under Magna Carta

effectively.

Now, my view of the situation is that because

this is such an enormous problem, as I have stated

on a previous case, that statute was framed way

back about 1200 and, as I observed then -

HIS HONOUR:  Well, now, again, we are getting on to the

question of substance.

MR SKYRING:  Yes. My point is that, okay, matters have been

paid. My general proposition is it is a matter -

whether we can deal with at this time in view of
what is now happening unless one addresses the

main issue now - my view specifically in respect

of - well, all of those costs, I believe they ought

to be refunded either to myself or those who paid

on my behalf on account of the requirement of the
general provision that justice shall not be sold

and if you have got to put money on the counter

in respect to any facet of that process, it seems

to me that that is a violation of this fundamental

general tenet in respect of how the affairs of

State shall be conducted.

Now, okay, that might be there as a requirement

of what I would regard to as subsidiary statutes. What I am, in effect, questioning is the validity of those statutes in terms of the much more

fundamental general requirement of Magna Carta.

Now, how the problem seems to have arisen- and this was why I cited that case of ... v MARTIN in

my affidavit. I was originally put on to that

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Skyr ing ( 10)

by Lou Wybell, who is currently Commissioner Wybell

who was conducting this inquiry into the Aboriginal

problems. Now, I had put a fairly high powered

notice on motion before the Institution of Engineers
back in 1980 following on from the retiring chairman's

address - he happened to be friends with Lou - and

he g.ot Lou to respond to it and he put a response on

th~ table at the Institution of Engineers. Now, I

could mt P-,et a seconder for my mot ion for iJ-Et I

wanted to do there and matters eventually lapsed

documentation to the High Court in 1986 to give the background of how I got into this; clearly, the interpretation was put on it because of the

but the sentiments in that covering letter, which

way it was worded. It is not for serious refutation.

The argument was put, in effect, that it was a

frivolous point to be disregarded.

Now, the problem has come about as having - that

particular judgment was, in fact, argued in its

full context in the Federal Court about 1984 and

this was given a fairly thorough going over and, in fact, in the particular case, there were half

a dozen items which formed the basis of

Sir Samuel Griffiths's judgment and it was

interestingly on an immigration case involving

Chinese.

Now, at that time, of course, there was this

yellow peril which was pretty much the order of the day

and there was - and while the matter is up again,

it is not sort of quite as fiery now as it was then

and this argument about Magna Carta was slipped

into the middle of the defence. Now, having been

raised, of course, the judge had to say something

about it but the way he framed his judgment, looking

back on it and bearing in mind that in this Court judgments are as much political as they are legal because of what follows, and he framed that judgment

that allowed it to get through the system virtually

unchallenged and, indeed, unchallengeable because

of the way he framed it. Now, because the case was lost the interpretation

put on it tends to be that, okay, the whole lot gets swept

out and, in effect, it was said, "Well, Magna Carta

is not", you know, 'it does not apply any more~•

effectively to say that.

HIS HONOUR:  But you put these matters to Justice Gaudron,

did you not?

MR SKYRING:  Yes, but the point was that - why I am sort of

mentioning them now is that the real issue is the

validity of the statutes themselves and we really

need to readdress this whole problem of the standing

B2T2/ll/SH	11	26/6/90
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of Magna Carta and, in particular, chapter 29.

Now, this becomes of much more relevance now because

although that was a 1905 judgment that I referred to there, since then, in 1984, in this State under

No 70 of 1984, the IMPERIAL ACTS APPLICATION ACT,

there were a whole series of statutes which were,

in ~ffect, restated as forming the basis for legal

practice in this State, at State level.

So, on a State level they have been reinstated

and, in effect, put back at the top of the pile so

to speak. Now, this becomes again relevant to

Justice McPherson's judgment because - well at

that stage I was challenging taxation and, in effect,

I am still on about that. He made the point that

because the taxation - in so far as there is
conflict, because the TAXATION ACT is later in

time, it takes precedence over -

HIS HONOUR:	I do not think we can go into these questions.
MR SKYRING:	Yes, well, that is what I am trying to get at,

Your Honour. My feeling is that I think that the

fundamental issue really needs to be - at least

a start made on it. Now, I notice under the - - -

HIS HONOUR:  Look, unless you could point to some changed

circumstance, I have to indicate to you that - - -

MR SKYRING:  You know, I believe that, in fact, at·the moment

there has been nothing on a lower level which has

happened which will allow the matter to be addressed.

Now, I believe the major part must be addressed and

then we can come back to it. That is my - - -

HIS HONOUR:  Yes, all right. Thank you, Mr Skyring. If that

is so, then we can stop at that point and deal with

this matter.

MR SKYRING:	That is the way - yes, fair enough.
HIS HONOUR:	I do not differ from the views expressed by

Justice Gaudron on the matters raised by your

summons and I do not think that anything has

occurred which would justify any different result

so that I must refuse the applications contained

in the summons dated 20 June 1990.

MR SKYRING:  On this point, Your Honour, if I may make a point.

While I can take that point now, my feeling on this

is that I believe there is a fundamental point that

I am seeking to address here that I do not believe

can be dismissed. My feeling is that; I -feel quite

strongly about this, Your Honour - I believe that the -

well, I am quite happy to have the matter held over

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HIS HONOUR:  Well, what I am doing is refusing the applications

contained in this summons; that is all.

MR SKYRING:  Yes, but the matter can be raised again - well,

my feeling -

HIS HONOUR: rhat is a matter for you.

MR SKYRING:  Yes, well, my feeling is that I believe it needs

to be raised.

HIS HONOUR:  Well, that is a matter to which you must address

yourself at an appropriate stage.

MR SKYRING:	Okay, all right.
HIS HONOUR:	Very well.  Now, that leavesthe other question

of the petition and what I am to do with it. It

seems to me that there are only two alternatives;

one is to adjourn the matter to a date to be fixed

in this Court which means that it will have to be

heard in Canberra. The other is that section 354(1)

of the ELECTORAL ACT gives the Court the power to

refer the petition to the Supreme Court of, in this

case, Queensland so those seem to me to be the two

alternatives.

Now, do you have anything to say about that,

Mr Skyring?

MR SKYRING:  Well, I suppose - well, as a matter of general

convenience, certainly my belief - I think -

HIS HONOUR:	Would you just pardon me for one.moment?
MR SKYRING:	Yes, certainly
HIS HONOUR:	I am sorry, Mr Skyring, go on.
MR SKYRING:	Well, certainly as a matter of convenience on

my - it would be a lot easier to conduct matters

here.

within this State so, given the fundamental points Now, it is an election sort of or a member

that I am on about - - -

HIS HONOUR:	But it is a federal election ..
MR SKYRING:	Yes, I take that point but it is in respect of

a representative for this State. Now, given the

matters I have touched on before in respect of

these very fundamental matters, we have the much

clearer law with.- .in:fact it is No 70 of 1980,

having reinstated, in effect, Magna CArta at the

top of the pile so to speak, the vital matters of

law are a lot clearer here than they are elsewhere

around the Isle, although I believe the same

principle applies.

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HIS HONOUR:  Well, I do not know that tsey are a lot clearer

in Brisbane than they are in Canbe~ra,one way or

the other but - - -

MR SKYRING:  Well, what is going down there of late, I must

have the matter dealt with here. You can delegate. Well, okay, I have no real objection

honestly say, Your Honour, I must query that point. be-to

to that, that the matter be dealt with here.

Now, there is, of course, the - but doing it

that way, there is another point which comes up
that was mentioned in the rules in respect that

there is no appeal from the Court of Disputed Returns.

This raises another point which Justice Gaudron did mention in the course of argument which rather

shook me a bit to be quite honest with you, which

I think, really needs to be clarified and if you

could sort this one out for me, I would be grateful.

As I understood her, she made comment to the

effect that sitting as the Court of Disputed Returns,

the Court is, in effect, sitting as an arm of the

Parliament or words to that effect.	Now, it is
that point that I think, really.- - -

HIS HONOUR:  I am sure she did not say that.

MR SKYRING: Well, now, that was a comment that she made. This

is what rather shook me a bit because if that is so that raises a few interesting points and, indeed, a few problems. Firstly and not least, of course, we have the separation of powers between the ececutive legislature and the judiciary. Now, coming into a
court, I sort of presume that one comes to a forum

which is nominally independent of the other two,

although just on that point, this of course can

never be sort of truly so. I regard it much like

the christian Trinity; it is a different facet of

the whole head structure, if you like, depending

on what the particular item is; it is better dealt

with before one or the other; but ~11 three must

be directed towards the same general end. They just

deal with different facets of the problem.

N~ in so far as the Parliament, as such, is

involved, it seems to me that there is another nice

little mix up there which really needs to be

unscrambled which is part of what this effort is

all about and that is that we have a de facto

situation which is not actually backed by the statutes, as I am certain - frIB a practice on

the ground so to speak, which was in one of the

submissions that I handed up in the course of the

hearing, but we have actually got a de facto

executive merged in the legislature, this so-called

B2T2/14/SH	14	26/6/90
Skyring(lO)

Cabinet, which is a bunch of ministers who are popularly held to be "the Government" who are

based in the legislature. If you look at the

CONSTITUTION, both State and Federal: (a), there

is no formal recognition of a body called Cabinet

so one might well ask who the hell are they, which is what I, in fact, did back in 1984 at both State anq -Federal level; in May at the State level and

August at the Federal level, and I did not get

anybody to front up to, in effect, justify the

practice which shook me a bit.

Now, the situation as I sort of understand

it and I have got on to this from reading .....

(Continued on page 16)

B2T2/15/SH	15	26/6/90
Skyring( 10)

MR SKYRING (continuing):  Now having read the history of them

section out of de Smith's Judicial Review talking	the notion was - if I could just read you a
about:

The theory is that the Sovereign has been

_ -appealed to by some one of his subjects who

complains of an injustice done him by an

inferior court; whereupon the Sovereign, saying

that he wishes to be certified - certiorari -

of the matter, orders that the record, etc.,

be transmitted into a court in which he is

sitting.

Now, this of course goes back to the days when the

King actually sat on the bench and major matters

of the administration of the realm were actually

dealt with there and then by the King in person

when it was matters involving government basically.

Now,over the years there was the gradual separation

that was worked, particularly at the end of the

1500s, early 1600s, wherein we still have the

monarch present, in effect, in spirit as manifested

by the Crown coat of arms behind you, although

the words are actually spoken by the judges in

their own right and having regard for the statutes

as framed.

Now, that that appears to be a reasonable

assessment of the situation, is actually, I believe,

borne out by the wording of our own general form

of certiorari in the State Supreme Court Rules.

Now it was this that I got on to fairly early on

when I was directed in terms of certiorari.

Although this is commonly used these days to quash

judgments - indeed, the writ itself does not

actually issue, the orders are given, things are

done as they should be - the act1,Jal original form of the

writ, it is quite magnificent and in fact allows

a whole scope of action, way beyond what is presently

used. It is worth reading into the record which

bears out the point which I have just read:

We, willing for certain causes to be certified

of -

and then state what it is about - command you that you send to Us in Our Supreme

Court of Queensland under your hand and seal

forthwith (or not later than) -

whatever the date -

B2T3/l/LW	16	26/6/90
Skyring ( 10)

the proceedings aforesaid with all things

touching the same ..... together with this

writ, that We may further cause to be done

thereupon what of right We shall see fit

to be done.

Now as I read that, that does not only mean quashing judgments. There is a whole - - -

HIS HONOUR:  We are dealing with an electoral petition here.

MR SKYRING: Yes, true, but the point I am about here, it is

the role in which the court is sitting. I am

trying to get at this matter in which Justice Gaudron

made the point about the Parliament. Now, as I see

it, okay, the fact that there is no appeal from

this Court, that is what makes it rather important that this be got straight as to just what capacity

the court is sitting and what it is seeking to do.

Now, in so far as Parliament is involved,

as was made in a comment from our own electoral

commissioner just in the last couple of days

talking about the Parliament and the role of the .....

sort of find his money . might come up

with, whether these can be dealt with by the - or

be changed by the parliamentarians, the comment

was made that Parliament actually means in terms of
statutes the Queen in Parliament. It is shorthand

for - it is used in the shorthand form. It is

widely conceived to mean legislature only and this

arose at the time of the civil war.	It was made
quite clear if you saw that TV series	By the

Sword Divided· which covered that very interesting

period and they kept hammering this matter of
parliament which was clearly construed to mean the

legislature without the monarch, not unlike the

Court of Star Chamber.

The situation that I am, in effect, saying is

that - and coming back to my earlier statement

that the laws are ultimately enacted by the monarch

with the advice and consent of the legislature.

So the legislature's role is to advise the monarch

as to what the laws should be. They do not actually

become law until the monarch or her rep actually

signs them into law. Now, the situation I am saying

is - one could put it as one of these sort of

hypotheticals but I believe it is a very real life

situation - what does the monarch do, given that the

final decision is his or her, whether they have got

a king or queen, when in fact the advice got from

the legislature is clearly contradictory as in -

I am showing up a point here in respect of this

currency. ' We have got two statutes, very clear in

B2T3/2/LW	17	26/6/90
Skyring ( 10)

their provisions which sizable proportions of

society are operating, where clearly these statutes,

or provisions of the RESERVE BANK ACT, in

particular,I am thinking of, is clearly at odds

with the CURRENCY ACT. The CURRENCY ACT broadly

aligns with the CONSTITUTION, the RESERVE BANK ACT

which gives us our paper money as legal tender

clearly does not. That particular provision of

the Reserve Bank is at odds with section 22 of
the CURRENCY ACT.

Now, here we have a clear case of conflict of statutes which have been enacted by the monarch,

presumably in good faith, believing the advice that

has been got from the legislature is proper and

correct. Now, when we have a situation where

the legislature is advising the Crown incorrectly,

what then? It is this problem - - -

HIS HONOUR:  We are really concerned with the question of where

this matter is to be heard.	How does this relate
to that?

MR SKYRING: Well, what I am saying is, Your Honour, it comes

back to the - what I was seeking to clarify was the
role in which the Court is sitting in the first

instance. Just to conclude what I was saying,

my sort of - - -

HIS HONOUR:  Yes, but the role of the Court will not differ,

whichever court it is.

MR SKYRING:  Whichever though, the point needs to be got very,

very clear as to just what the manner in which the

Court is sitting. It would seem to me in terms of

the spirit of certiorari that in essence, okay, as

a subject I am complaining of the monarch - look,
you have got something terribly wrong here.

The alternative avenue is to - seek

to at least start· the corrective

process at least through.the courts so, in fact,

actually it is the - in so far as the court, or
the Parliament is involved	I would clarify that

to say/'T..ook, it is really the executive arm of the

Parliament so it is the executive,which is really

the monarch to which th~ appeal is being made,

through the courts to say -- it is the court
that really needs to say to the legislature,

"Hey, look, we have got a conflict here. You

have really got to sort it out", but it seems to

me that it is essential that the court.say

tha~ state that there is a conflict. and this is

a point of great reluctance in getting the courts to

do to date, perhaps because I have been using certiorari

which sort of was not - and · was indicated

to me by Justice Brennan, as we really need to use

B2T3/3/LW	18	26/6/90
Skyring(l0)

more traditional means which is how this has now

come up in the form it has.	But the point
still arises - - -

HIS HONOUR:  You are now using an electoral petition.

MR SKYRING:. Yes, but it is notice of motion to deal with

and- to deal with a member of the legislature

on a matter of form of payment which addresses

now the general problem, but we are still in a

court and it is the role in which the Court sits.

That is the point I was trying to get at;

that it seems to me that it is the executive

operating through the courts seeking to have

a matter clarified and to state, "Well, look,

in terms of rather more fundamental statutes,

which is where Magna Carta comes in, there does

appear to be a conflict here, not only in respect to the way justice is administered but in respect of the whole currency".

Again, it seems to me better that it is done

that it is dealt with at a State level, because

in one of the other exhibits that I put up

as part of the petition - as part of the previous

summons - was this matter of the role of the States

vis-a-vis the Federation. The Americans have

been in this federation game a bit longer than

we have but seem to have sorted things out a little

bit better and the matter is put there that it is

the States who were the originating bodies who established

the federal body to, in effect, act on behalf of all

of them.

Now, the point is made very, very clear in to task if they have gone beyond the brief

that it is back to the States to take the feds

which, in effect, the States,as the originating

bodies assigned to them. This comes up very, very

clearly in respect of this currency question. That

provision of section ll5.'Which I read from Justice
McPherson which I sort of put earlier on -	.

at the time when I argued it I cannot remember

whether I actually mentioned section 115 but it

got into the judgment. That is seen purely as a

limit against the States actually coining money.

'The States shall not coin money nor make anything

but gold and silver coin	a legal tender in the
payment of debts."

My point is that the first bit seems to be

reasonably clear cut although I have been given to

understand that there has never ever actually been

a High Court interpretation given on what that

section actually means. That is what I sought to get

by my action back in 1985, was to get the Court to

B2T3/4/LW	19	26/6/90
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give such a determination but to run this sort of
thing properly you need somebody to argue the

other side and I could never get buddies to argue

the other side. So, the problem we have got - and

this is the one that I am really still trying to

get an answer on - what does that make me in the

secpnd part of section 115? I had put my argument

based on what I had sort of construed from my reading

of history. There was a much more interesting

American case which actually came up in 1968 wherein this whole matter of, the whole financial

system in the US was actually argued and in the

course of this there was a case, KLABER V BIGERSTAF

wherein the whole matter of this currency, paper

money versus gold coin was fairly and squarely

put on the table.

This formed the subject of the first draft

of the petition which I did in this present action

in trying to get the thing into the right form

because I had great difficulty the form of my

documents right. The Registrar commented that if

I wanted matters brought on before the election

I had to get into a chamber summons, an affidavit

mode, so what I did was to change my original

petition into an affidavit and provided all the

back-up argument to make the point. The petition you have now got is, in effect, a summary of that.

Now, to aid the process, given the nature at

what is in issue, perhaps I ought to mention that

I had, in fact, served a copy of this summons,

although it had not been sealed I let all the

other candidates know on 14 March what I was about,

having actually given them a draft of the petition
as soon as I had entered my nomination and sent

the first draft of the petition down to Canberra now with all the back-up information to try and

see if I could get something up during the election

campaign. Nothing came of. it. I then changed the

form. I reconfigured and let them all know again

on the 14th. There was a brief notice in the paper

on the 15th of what I was about so they, in fact,

had the full background to that.

Now, the question I will put to you now to

aid this process, I have a copy of this which at that time anyway. If you ·think it vnild help - - -

HIS HONOUR:  I do not think it would help the question we are

now dealing with, Mr Skyring, which is a very confined

one which is just where the matter should be heard.

B2T3/5/LW	20	26/6/90
Skyring ( 10 )

MR SKYRING:  Okay, well, against all the background that

I have given to you, my feeling is that I thought

that the matter certainly ought to be raised -

for convenience, at least, in the opening stages,

and sort of moved around all over the place,	and given that the matters can be adjourned
my feeling is that it would not hurt to have the matter at least started off in the State legislature.

HIS HONOUR: It; has_ started off in the High eourt. But you have said it

should be referred to the Stace - well I understand

you and I understand that you would say that it is

more convenient and probably less expensive to be

heard if it were heard - - -

MR SKYRING:  And all the people are here and our own State

law.

HIS HONOUR:	Yes, I follow that.
MR SKYRING:	And ·the matter can come up properly in the State

context.

HIS HONOUR:  I follow J=hat. Perhaps we could hear what

Mr McGill has to say about it.

MR McGILL:  Your Honour, in relation to that the only point is

that in my submission the petition could be dealt

with fairly quickly anyway but if Your Honour is

not disposed to consider that matter this morning

then I do not have any opposition to the matter

being referred for trial to the Supreme Court of

Queensland.

HIS HONOUR:	Well now, you do not have anything to add, do you?
MR SKYRING:	Not really, no.  It would move it along which is

the essential point which really needs to be done.

HIS HONOUR: Notwithstanding the submissions of the parties,

the matter does relate to a federal election and

I do not think that there is any sufficient reason
for me to exercise the jurisdiction conferred on	this Court by section 354(1) of the Commonwealth
ELECTORAL ACT to refer the petition to the
Supreme Court of Queensland. Since it is clearly
not possible to hear the matter today - - -

MR SKYRING: Fair enough.

HIS HONOUR:  - - - I must adjourn it to a date to be fixed

and it is apparent that when a date is fixed the

matter must be heard in Canberra, so I do that.

I refuse the applications contained in the summons dated 20 June 1990 and I adjourn the petition to a

date to be fixed. Is there anything else, gentlemen?

B2T3/6/LW	21	26/6/90
Skyring(l0)

MR SKYRING:  Not really.

MR McGILL: Will Your Honour reserve the cost?

HIS HONOUR:	Yes, I will reserve costs.
MR McGILL:	'.fhank you.
HIS HONOUR:	Very well, I will adjourn the Court to a date to be fixed.

AT 10.35 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

B2T3/7/LW	22	26/6/90
Skyring (10)