Timms v Police

[2018] SASC 69

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

TIMMS v POLICE

[2018] SASC 69

Judgment of The Honourable Chief Justice Kourakis (ex tempore)

11 April 2018

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS

Appeal against a decision of a Magistrate of the Port Adelaide Magistrates Court on 30 January 2018 dismissing an appeal against a vehicle defect notice as issued to the appellant on 29 December 2017.

The argument presented to the Magistrate, and put again to this Court on appeal is, in effect, that the Parliament of South Australia was never vested with lawful powers to exercise the sovereign powers of a government through its Parliament in and for South Australia.

Held, per Kourakis CJ:

1.  Appeal dismissed.

2.  The appellant is to pay costs to the South Australia Police in the sum of $250.

South Australia Act 1934 (4 and 5 Will. IV c. 95); The Commonwealth of Australia Constitution Act 1900 (UK); Australia Act 1986 (Cth); Australia Act 1986 (UK); Road Traffic Act 1961 (SA), referred to.
Mabo v Queensland (No 2) (1992) 175 CLR 1, considered.

TIMMS v POLICE
[2018] SASC 69

Magistrates Appeal:  Criminal

1. KOURAKIS CJ (ex tempore):           The appellant, Mr Rowan Timms, was issued a vehicle defect notice served on him by a police officer on 29 December 2017.  On 8 January 2018 the appellant filed, in the Port Adelaide Magistrates Court, an application seeking orders which have been summarised in the respondent's written submissions as follows:

   (a)An interim injunction and ordered to suspend the operation of the defect notice.

   (b)An order, apparently in the form of a declaration, the vehicle defect notice is deemed null and void for lack of jurisdiction.

   (c)A further order that the police were engaging in unlawful and criminal conduct in issuing the notice.

   (d)That the police had no lawful powers to issue the defect notice.

2. The argument presented by the appellant to the Magistrate and put again to me on appeal is, in effect, that the Parliament of South Australia was never vested with lawful powers to exercise the sovereign powers of a government through its Parliament in and for South Australia.  The appellant’s submissions to me today are to the effect that the now notorious and accepted fact that Australia was populated by its Indigenous peoples at the time that the United Kingdom claimed sovereignty invalidates all purported government acts since that date.

3. Whatever argument might be made is a matter of international law before any international tribunal that might ever be created to hear the argument. The position of the domestic courts of Australia is confined by the Australian constitution and all of its implicit premises and subsequent legislation to which I will turn in a moment.

4. It was explained in the decision of the High Court in Mabo[1] that the act of sovereignty by which the colonies of Australia were annexed and acquired by the United Kingdom cannot be questioned by Australia's domestic courts.  That act of sovereignty is the premise on which all government by the United Kingdom, including in the exercise of judicial power, subsequently followed.  As the High Court explained in Mabo, the act of sovereignty in itself did not destroy native title in land which subsisted until and unless by the exercise of those sovereign legislative or executive powers the native title was abrogated.[2]

   [1]    Mabo v Queensland (No 2) (1992) 175 CLR 1.

   [2]    Mabo v Queensland (No 2) at 31 (Brennan J; Mason CJ and McHugh J agreeing): See also 78, 79 and 95 (Dawson and Gaudron JJ).

5. Following the act of sovereignty by legislation of the United Kingdom, and by Letters Patent issued in the executive power of the United Kingdom, self-government was established in the Australian colonies. First, by direct fiat of the governors appointed, then by legislative acts of the legislative council advising the governor, and ultimately, in 1854, by the enactment of legislation which established for the first time representative government in South Australia.[3]

   [3]    South Australia Act 1834 (4 and 5 Will. IV c.95).

6. In 1901 the colonies of Australia federated under a constitution which was a schedule to an Act of the United Kingdom, being the Commonwealth of Australia Constitution Act 1900 (UK) (The Constitution Act).[4] The Constitution Act itself bound all persons in Australia to comply and follow the provisions of the Constitution. Section 107 of the Constitution provided that every power of the parliament of a colony which became a state shall, subject to the vesting of powers in the Commonwealth Parliament by the Constitution, continue as at the establishment of the Commonwealth or as at the admission or establishment of the state, as the case may be. Section 107, by implication, accepts the sovereign legislative powers of the parliaments of the colonies and continues them. It is premised on the existence of that full sovereignty, assumes it, and thereby continues it as a provision of the Constitution.

   [4]    The Commonwealth of Australia Constitution Act 1900 (UK) was given Royal Assent on 9 July 1900 by Queen Victoria, and was proclaimed on 1 January 1901.

7. In 1986 the Parliament of the Commonwealth of Australia, following requesting Acts passed by each of its states, and the Parliament of the United Kingdom, passed reciprocal Australia Acts[5] which ended the power of the United Kingdom to make laws for Australia. As a result of that legislative history, the fundamental law of Australia is the Constitution and it, by its terms, grants full sovereign power to each of the states.

   [5]    Australia Act 1986 (Cth); Australia Act 1986 (UK).

8. It is pursuant to that power that the Parliament of South Australia enacted the Road Traffic Act 1961 (SA) (RTA) and it is pursuant to those provisions that the defect notice was issued. Questions as to the compliance with the terms of the RTA and whether or not the issue of the notice was within the power conferred by that Act are matters which might have been pursued on a proper ground before this Court but could not be pursued in the Magistrates Court. But in any event, the appellant’s contentions are not based on any excessive power outside the bounds of the RTA; rather, his submission challenges the very validity of the RTA itself. For the reasons I have given, that challenge must be dismissed.

9. I observe that the appellant’s argument was carefully and respectfully presented to this Court.  The general political concern about the abrogation of the rights of indigenous persons and how that might be viewed by international law today is a legitimate question in forums other than the domestic tribunals of this state. Applying, though, the fundamental constitutional principles to which I have referred, the Magistrate's conclusion was correct and the appellant’s appeal must be dismissed. I so order.