Vorhauer & Anor v The Queen

[2003] HCATrans 629

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S305 of 2002

B e t w e e n -

FLORENCE AMELIA VORHAUER

First Applicant

LISA AMELIA VORHAUER

Second Applicant

and

THE QUEEN

Respondent

Application for removal pursuant to section 40 of the Judiciary Act 1903

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 26 MARCH 2003, AT 2.15 PM

Copyright in the High Court of Australia

MRS F.A. VORHAUER appeared in person.

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales:   I appear with MS J.A. QUILTER for the respondent.  (instructed by Crown Solicitor for New South Wales)

HIS HONOUR:   Yes.

MRS VORHAUER:   Your Honour, I understand it is strictly 20 minutes, is that right?

HIS HONOUR:   Yes.

MRS VORHAUER:   Right.  Well, because of sickness I was not able to file the list of references that I referred to in my applicant’s summary of argument, so I would seek the Court’s permission to file those documents.

HIS HONOUR:   Now, you are appearing both for yourself and the second applicant, is that right?

MRS VORHAUER:   Yes, I am sorry.  Perhaps I should have started with that.  I seek permission to speak for Lisa Vorhauer, my daughter.

HIS HONOUR:   Is that opposed, Mr Solicitor?

MR SEXTON:   We do not have anything to say about that, your Honour.

HIS HONOUR:   Yes, you have that permission.

MRS VORHAUER:   Thank you very much.

HIS HONOUR:   Yes, Mrs Vorhauer.

MRS VORHAUER:   I seek the Court’s leave to file these references.

HIS HONOUR:   Is that opposed?

MR SEXTON:   No, your Honour.

HIS HONOUR:   Yes, you have that leave.

MRS VORHAUER:   Thank you so much.  I also seek to file a letter written to me by the Australian Government Solicitor stating that the Commonwealth Attorney-General will not be intervening in these proceedings.  May I file that too?

HIS HONOUR:   Yes.

MRS VORHAUER:   Thank you.

HIS HONOUR:   Yes.

MRS VORHAUER: I would also like to add to my submissions because this information was not available to me at that time and, as you know, these proceedings, the notice of motion for removal to the High Court, also has with it a notice of a constitutional matter which covers quite a lot of constitutional issues in these proceedings, one of them being a question of section 25 Constitution regarding people that are classified as a race in Australia. These people pursuant to the Constitution cannot be counted in the population and because they are members of another country, they are not citizens pursuant to section 17 of the Australian Citizenship Act 1948 and also section 25 Constitution because they are excluded – they are also excluded by section 42 Constitution because they are not Australian citizens and section 34(ii) because they cannot swear allegiance to the Queen not being Australian citizens, and that means that the judiciary particularly and in the Parliament these people are making false oaths because they cannot comply with the schedule of the Constitution and the schedule of the Constitution excludes these people from being members of any public service post. Now, I raised it as a constitutional issue in the constitutional matter ‑ ‑ ‑

HIS HONOUR:   Who are these people?

MRS VORHAUER:   ‑ ‑ ‑ that is in support of this notice of motion.

HIS HONOUR:   Who are these people?

MRS VORHAUER:   Sorry?

HIS HONOUR:   Who are these people to whom you refer?

MRS VORHAUER:   I refer you to a judgment which I ‑ ‑ ‑

HIS HONOUR:   No, could you answer my question:  who are these people to whom you refer?

MRS VORHAUER:   Well, can I just tell you the judgment in the Federal Court of Australia last year in Jones v Scully 2002 the Federal Court of Australia ruled that the Jews, the Muslims and the Sikhs were members of a race in Australia. Now, because of that judgment, which takes anything I have submitted out of the realm of speculation because the Crown is submitting that the Jews are a religion only. Well, Mr Jeremy Jones, who is the president of the Jewish Board of Deputies, he took this action in the Federal Court and he asked the Federal Court to make a ruling that Jews are a race. So now section 25 of the Constitution excludes these people from being counted as citizens of Australia and also excludes them from being able to comply with the schedule of the Constitution.

HIS HONOUR:   Now, what is the connection between that and the proceedings against you?

MRS VORHAUER: Well, I have challenged the fact that in my constitutional challenge, which supports this notice of motion, that there are Jews in the judicial system. I have put in there a constitutional challenge on a lot of the judiciary that is in the Supreme Court of New South Wales and there was a Jewish newspaper that declared that 75 judges of the Supreme Court are Jews, including Chief Justice Spigelman, and Chief Justice Spigelman claimed in a judgment that the Constitution is of no relevance, and I believe that statement to be a statement of treason pursuant to section 24AA(1)(a) of the 1914 Crimes Act because the University of Wollongong v Metwally judgment in 1984 declared that there are many legal fictions that have been established by the Parliaments.

I submit that Jews putting themselves into the judiciary is one of those legal fictions and this Court should do what the Constitution orders because the Constitution says that no one can override it and it must be obeyed by all, and I submit that that includes the judiciary of the High Court pursuant to clause 5 preamble and I believe that these things must be corrected. I cite Justice Deane, who became Governor‑General, boasting that he was a republican, and as a republican he could not comply with section 34 of the Constitution regarding the schedule to be sworn regarding allegiance to the Queen and I find that to be treason pursuant to – section 24AA(1)(a) of the 1914 Crimes Act says that declarations like that amount to treason because a person who is in his position as Governor‑General must comply with the Constitution. Clause 5 says so. He is subject to the Constitution the same as everybody else is. Under section 2 of the Constitution, the Governor‑General is subject to the Constitution.

So therefore him stating that he was a republican puts him in the ambit under the 1914 Crimes Act of being a traitor and it is obvious that – and also Justice Einfeld, he said on the Australia Day celebrations – he told all Australia that he was a Jew and he served in the judicial system and the Constitution says that he cannot serve in the courts of Australia, and yet he did so and even made a boast of it, and I find that this treason is – and I am very angry about it because local councils have absolutely no constitutional authority whatsoever, as do not the State Parliaments.

They have not had a Governor to make their legislation into laws. The only laws recognised by the Constitution are those that are signed into law by the Governor‑General pursuant to his role of section 2, under section 58, 59 and 60, and unless the legislation is signed by the Governor‑General the Constitution says that any legislation made by a Parliament that is not signed by the Governor‑General is not law in Australia, and yet the State Parliaments have not had a Governor since 1901 pursuant to section 70 of the Constitution and yet they still operate as a Parliament, and I believe that these treasonous issues must be corrected.

So I have made references on a piece of paper to the matters that I – the other matters that I rely on I have made in my notice of motion and it has the evidence in support and also the constitutional challenge which backs up the notice of motion of things that are not being complied with in the notice of motion being – I have criminal proceedings that are being pressed against me and no one will issue me with a summons.  I have to come to the High Court to ask for a summons.  There is no – an indictment was not even signed, dated or sealed pursuant to Order 69 rule 1 of the High Court Rules and because the High Court is the supreme court of the Commonwealth their Rules must be obeyed by the State because they simply do not have a Parliament who can make laws that can be complied with. 

So they must comply with the High Court Rules, despite their protests to the – because the indissoluble union that the Constitution made the States into under clause 1 preamble demands that they obey the Constitution and the Constitution says that they became an indissoluble union and their only Parliament pursuant to section 1 is the Commonwealth Parliament and the Governor‑General is not empowered to sign the laws of the State into legislation. The Constitution does not allow him to do so.

All of these charges against me are State legislation and I am not going to get any justice because Chief Justice Spigelman made a judgment that I did not have any rights under the Constitution, that it was of no relevance concerning local government and therefore I had to stand trial – I have to stand trial in these matters and I believe that this is not only treason, which is not my statement – that is the statement of the 1914 Crimes Act. I believe this treason against me is absolutely intolerable and this Court is the only court that I can appeal to to get justice, to uphold the fact that the States do not have authority to make laws and my submission that the States are bound by the laws of the Constitution and the laws by the Parliament pursuant to section 1 Constitution and signed into law by the Governor‑General in his role pursuant to section 2 and section 58, 59 and 60, they are to obey the Constitution.

They claim that federal jurisdiction only applies to the courts outside the States but they were given federal jurisdiction pursuant to section 77(iii) and that federal jurisdiction was given to them by the legislation of the Judiciary Act 1903 pursuant to section 39, so therefore they are bound by the decisions of the High Court pursuant to section 73 in their role under section 76(i) and those judgments and the legislation say that I have not done anything to be charged with before any court of law because the people who are trying to claim that they have authority over me, they have no authority whatsoever and the 1914 Crimes Act says that they are committing treason.  Yes, I think that is – thank you very much.

HIS HONOUR:   Thank you.  Take a seat, please.  Mr Solicitor, these proceedings are still adjourned until 2 June 2003?

MR SEXTON:   Yes, your Honour.

HIS HONOUR:   Thank you.

This is an application for removal into this Court pursuant to section 40 of the Judiciary Act 1903 of a cause pending in another court. The cause pending is a criminal trial. The applicant is charged with using an offensive weapon to prevent police investigation and two counts of malicious wounding with intent to prevent lawful apprehension.

These charges arose from events that occurred on 14 July 1999 at Tamworth when officers of the Tamworth local council attended the applicant’s property pursuant to an order made by a judge of the Land and Environment Court for the removal of some chickens.  It is alleged that when police officers attended together with local council officers the applicant threw a spear at an officer and also threw what were thought or intended to be explosives.  It is further alleged that she injured one of the officers with a weapon.

The trial in respect of these proceedings is presently due to commence on 2 June 2003. Mrs Vorhauer has, by a notice issued under section 78B of the Judiciary Act, indicated that she intends to raise various constitutional arguments in her defence. In a document entitled “SUBMISSION IN SUPPORT OF ORDER 40 JUDICIARY ACT 1903” the applicant summarised three of her constitutional arguments as follows:

“1. The State’s Director of Public Prosecutions cannot represent Regina in the Courts, pursuant to the indissoluble union of Clause 1, giving self‑government to the Commonwealth only (Clause 8 Preamble) and the seat of Parliament (s 125), the legislative authority (s 1, and s 109), and the Judicial authority (s 71), the States having no representative (s 70) of the Queen (s 61).

2. The Parliament’s of Australia are legislating in treason to the Constitution (s 24 1914 Crimes Act) against the sovereign’s (University of Wollongong v Metwally (1984)) of Australia’s common law rights (Coco v R (1994)), given by the Constitution and s 73 Constitution pursuant to High Court Judgments, involving s 76(i) Constitution.

3. The New South Wales Attorney-General is intervening in Court proceedings in defiance of s 76(i) Constitution, and instructing the Judiciary that the Constitution is not a legal enactment because it was passed in a UK Parliament (see Bega Valley Shire Council v Blunden (1999)), so s 109 Constitution has no power on State legislation or Court proceedings.”

In her oral submissions to this Court the applicant elaborated in some respects upon those arguments and also advanced other matters which I will not attempt to summarise but which were concerned with the fact that some members of the judiciary are, as I understood her argument, Jews, Muslims or Sikhs.  The point of that entirely escapes me.

I have considered what are said to be the constitutional arguments advanced on behalf of the applicant and I am afraid that I am unable to detect any substance in any of them.  Furthermore, it is ordinarily, and in the present case, inappropriate to fragment criminal proceedings.  There is a pending trial due to commence in June and for all I know Mrs Vorhauer might be completely successful in those criminal proceedings on the merits, in which case ‑ ‑ ‑

MRS VORHAUER:   It is impossible when they claim that local councils and police are legal.

HIS HONOUR:   Mrs Vorhauer assures me that she is convinced that she will not succeed on the merits, but I do not intend to take her on her own estimation in that regard.  If she is acquitted on the merits at the criminal trial, then so far as I can see none of these constitutional points that she has in mind will ever arise. 

The application should be refused and I make an order that the application is dismissed.

Anything else?  We will adjourn.

AT 2.37 PM THE MATTER WAS CONCLUDED