Walker v Speechley

[1999] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S129 of 1998

B e t w e e n -

DENIS BRUCE WALKER

Applicant

and

IAN JOHN SPEECHLEY

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

Application for leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 1999, AT 12.16 PM

Copyright in the High Court of Australia

MR D. WALKER appeared in person.

MR S.J. GAGELER:   If your Honour please, I appear with MR G. KENNETT, for the State of New South Wales  (instructed by I.V. Knight, Crown Solicitor for New South Wales)

GUMMOW J:   Yes, Mr Gageler.  I hold a certificate from the Deputy Registrar that she has been informed that the first respondent, Ian John Speechley, does not wish to be represented at the hearing of the application for leave and will submit to any order of the Court save as to costs.  Yes, Mr Walker.  You have seen the way things have worked this morning; each side has a maximum of 20 minutes.

MR WALKER:   Yes, I would like to read a framework statement to what I am putting forward.

I am Denis Bruce Walker, Bejam, Jarlow, Kunminarra, Nanaka Kabool, of “Moongalba”, via Goompie, Minjerribah, Quandamooka.  I am the son of Oodgeroo of the tribe Noonuccal, custodian of the land Minjerribah, and I represent myself.

My basic statement and submission is that under section 40(1) of the Judiciary Act 1903 (Cth) I have made application to have my matter in the Magistrates’ Court of New South Wales No S1193 of 1997 removed into the High Court of Australia because it involves the interpretation of the Constitution, in particular section 118 which states:

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.

I would submit that the above section embodies “common law” defined in Osborn’s Concise Law Dictionary as:

That part of the law of England formulated, developed and administered by the old common law courts, based originally on the common customs of the country, and unwritten.  It is opposed to equity (the body of rules administered by the Court of Chancery); to statute law (the law laid down in Acts of Parliament); to special law (the law administered in special courts such as ecclesiastical law, and the law merchant); and to the civil law (the law of Rome).

It is “the commonsense of the community, crystallised and formulated by our forefathers.”  It is not local law, nor the result of legislation.

This definition encompasses indigenous customary law in general and, in particular, reference to those elements based on:

originally on the common customs…..and unwritten.

And it is the:

commonsense of the community, crystallised and formulated by our forefathers”.  It is not local law, nor the result of legislation.

Without that recognition, that is, the customary law is part of the common law, we can continue to live under two laws, giving rise to instances of double jeopardy.  We need to recognise that customary law is at one with the common law.  This was not previously possible because of the doctrine of terra nullius and Cook’s non‑consent.  Cook was ordered by his King George III:

You are also with the consent of the natives to take possession of convenient situations in the country, in the name of the King of Great Britain, or if you find the country uninhabited take possession for His Majesty by setting up proper marks and inscriptions, as the first discoverers and possessors”.

I would submit this has made Cook a false agent, which has tainted all that has flowed from this Act.  I submit there is a simple and effective remedy here by way of the very definition of common law, and I would also submit that the customary law holders are the Elders in Council bloodline back to territory.  I would also submit that those Elders in Council bloodline back to territory constitute the natural law government.  The literature is peppered with reference to this, and I refer you to Elkin in my application book page 50, lines 57 and 58.

GUMMOW J:   Just a minute, page?

MR WALKER:   Page 50, lines 57 and 58.

GUMMOW J:   Yes, thank you.

MR WALKER:   And the resolutions of authorisation, application book pages 33 to 38, 41, 42 and 47 and, in particular, at page 38, lines 10 and 11.

This leads to the next part of my submission which deals with the definition of “natural law” which is:

The law of nature; law as the emanation of the Divine Providence, rooted in the nature and reason of man.  It is both anterior and superior to positive law.

Which leads us to the Bible as an authority of God’s laws.  They are specific references to the original owners in various parts of the Bible in general and, in particular Leviticus 25:10, 1 Kings 21.  I rely, however, in the main, on the very definition of common law embodying our customary laws to make it one law instead of two, as it is now, which results in us being constantly in a position of double jeopardy.

I submit that the historical legal reasons for this not being addressed previously are due to the terra nullius doctrine and Cook’s non‑consent.  The consequences manifest in an ever‑increasing deaths in custody, and ever‑increasing incarceration rates.

This recognition and realisation of Aboriginal customary law as part of common law can be implemented, and has been implemented, and I refer to the resolutions of the minutes of the Minjerribah Moorgumpin Elders in Council and the Bundjalung Elders in Council, who demonstrate the existence of protocols.  See my application book, pages 33 to 38, 41, 42 and 47.  This is, in fact, happening to varying degrees in various parts of the country now.

In conclusion, the relief sought is embodied in my letter to the Grafton magistrate in my application book at pages 28 and 29, in general, and in particular, to point 2 of that letter which states, “You adjourn the matter so a joint sitting of both Your Worship and the Bundjalung Elders‑in‑Council can fulfil the law and have the matter settled”.  Thank you.

GUMMOW J:   Yes, Mr Walker.  Mr Gageler.

MR GAGELER:   Your Honours, this is an application for leave to appeal from her Honour’s decision refusing an order for removal under section 40(1) of the Judiciary Act.  The applicant therefore needs to show some error of principle, and some error of principle affecting the result of that discretionary judgment.

The only question said to arise under the Constitution is a question under section 118 of the Constitution. The argument appears to run like this: that the law of Noonuccal confers exclusive jurisdiction upon the Elders of Mr Walker’s Aboriginal tribe, or upon those to whom they delegate that function; that the law of Noonuccal has become part of the common law of Queensland; that the common law of Queensland is picked up by section 118 of the Constitution.

GUMMOW J:   It is only a common law of Australia, is it not?

MR GAGELER:   Your Honour has identified a critical flaw in the argument, but then the argument appears to run that as picked up by section 118 of the Constitution it is given full faith and credit in New South Wales so as to deprive a New South Wales court of jurisdiction conferred by a New South Wales statute to hear and determine a charge of an offence under New South Wales law alleged to have occurred in New South Wales. Your Honour has identified one of the critical flaws in the argument.

GUMMOW J:   What are the other ones you say?

MR GAGELER:   The other ones relate to precisely what is the law of Noonuccal that has not been adequately identified.

GUMMOW J:   What do you say about the construction of section 118? What are the laws being spoken of there? Are they statute laws?

MR GAGELER:   They are statute laws, yes.  They are certainly not the common law which cannot be described as a law of a State, consistently with what the Court has said, for example, in Lange and in the Native Title Act Case, Western Australia v The Commonwealth. The common law is the common law of Australia. So, one does not get into section 118 of the Constitution, even assuming that the law of Noonuccal is somehow incorporated within the common law of Queensland, a proposition which is denied by Chief Justice Mason’s judgment in Walker v State of New South Wales.

But, even if one were to get into section 118 of the Constitution, giving full faith and credit to a law of Queensland does not involve giving that law of Queensland a higher status in another State than it would have in Queensland. The applicant’s argument would need to go so far as to say the law of Noonuccal in Queensland displaced the jurisdiction of Queensland courts to hear and determine Queensland offences. That is inconsistent with principle and authority. If your Honours please.

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   I would just like to address a point about exclusive jurisdiction of Noonuccal for Bundjalung.  I am not asserting that there is an exclusive jurisdiction, I am saying there is a co‑existent jurisdiction of customary law under the common law, and that full faith and credit shall be given to the Commonwealth to the laws, should, by definition, embody the common law, and by definition the common law embodies customary law.

While the common law does not recognise our customary laws in this country, we have to live under two laws, which creates a system of double jeopardy. 

GUMMOW J:   Yes, thank you.  I think your solicitor wants to say something to you.  Is there anything else?

MR WALKER:   No, your Honour.

GUMMOW J:   We will take a short adjournment.

AT 12.34 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.34 PM:

GUMMOW J:   This is an application for leave to appeal from an interlocutory decision of a Justice of this Court. Her Honour refused an application for removal under section 40 of the Judiciary Act. Her Honour was of the view that no question arose under section 118 of the Constitution. We are of like view that no question arises under section 118 of the Constitution. That section does not extend to rules which form part of the common law of Australia. Therefore, it is unnecessary to consider any of the other questions raised by the course of argument. Accordingly, the application is refused.

AT 12.35 PM THE MATTER WAS CONCLUDED