Brooker v Police
[2017] NZHC 2658
•30 October 2017
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE
CRI-2017-418-5
[2017] NZHC 2658
BETWEEN ALLISTAIR BROOKER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 October 2017 Appearances:
Appellant in Person
S Dayal for the Respondent
Judgment:
30 October 2017
JUDGMENT OF MANDER J
[1] The appellant, Mr Allistair Brooker, was charged with defacing a building after he used a marker to write “NZ = lies + theft” several times on an external wall and door of the Greymouth Police Station.1 Mr Brooker was apprehended by the police in the act of writing this graffiti and arrested.
The District Court proceeding
[2] Mr Brooker admitted his actions when he appeared before Judge Saunders in the District Court. However, he maintained his not guilty plea on the basis he did not accept the Court had jurisdiction to determine the charge. Mr Brooker’s position is that the Crown does not have sovereignty over New Zealand and that he is not subject to the laws enacted by the New Zealand Parliament.
1 Summary Offences Act 1981, s 11A.
BROOKER v NEW ZEALAND POLICE [2017] NZHC 2658 [30 October 2017]
[3] Mr Brooker encouraged the District Court to find that previous decisions of New Zealand superior Courts which have addressed similar arguments of the type propounded by Mr Brooker were based upon “errors of facts and law”. However, the Judge found those cases recognised that only Parliament is able to make laws which are binding on all persons within New Zealand, and that the Courts were required to uphold the Acts of Parliament. The Judge found himself bound to follow the decisions of these higher Courts. He rejected Mr Brooker’s submission that the Court did not have jurisdiction and found the charge proved. Mr Brooker was convicted and fined.
Mr Brooker’s appeal
[4] On his appeal, Mr Brooker maintained his argument that the Court has no lawful authority. He relied upon the written submissions he prepared for his argument before the District Court which he filed in support of his appeal, together with supplementary oral submissions made before me. Essentially, Mr Brooker’s submission is that Maori did not cede sovereignty to the Crown and, as a result, the entire system of Government in New Zealand is illegitimate. He maintains colonial Britain invaded New Zealand and that what followed was a “belligerent military occupation” which cannot confer de jure sovereignty.
[5] When Mr Brooker appeared before me he was at some pains to point out that he appeared as a “prisoner of war” and that he did not recognise the authority of this Court. Mr Brooker’s self-described status is likely linked to the thesis of his submissions. However, that does not disguise the somewhat contradictory position he takes in bringing an appeal against his conviction to this Court. Conceivably this Court could only have authority to consider and potentially uphold Mr Brooker’s appeal if the system of appointment of its Judges was valid and the statute pursuant to which the appeal is brought, namely the Criminal Procedure Act 2011, a legitimate Act of Parliament.
[6] Be that as it may, Mr Brooker’s submissions can be distilled to the following propositions:
(a)Britain recognised that before 1840 New Zealand was an independent land, and that only by free and negotiated cession of sovereignty by Maori could Britain claim de jure sovereignty.
(b)Under the Treaty of Waitangi rangatira retained de jure sovereignty. Alternatively the Treaty of Waitangi was not ratified by Parliament therefore the treaty has no legal force and, as a result, rangatira retained de jure sovereignty. The Treaty of Waitangi does not meet the criteria for a valid legal treaty in the absence of ratification.
(c)Lieutenant-Governor Hobson’s proclamations of British sovereignty were invalid or unlawful, based on a false claim of cessation through an invalid treaty.
(d)Earlier decisions of the superior Courts of New Zealand, including the decision of the Privy Council in New Zealand Maori Council v Attorney-General,2 which recognised New Zealand as a de jure sovereign state capable of passing laws such as the Treaty of Waitangi Act 1975, were erroneous in fact and law. Because the Treaty is unenforceable “by legal action” in the absence of ratification, Mr Brooker submitted the Treaty has no constitutional importance in New Zealand. It follows from the Treaty not being legally enforceable that the Crown has no sovereign power in this country.
(e)Any attempt by the Crown to assert de jure sovereignty through an Act of the de facto New Zealand Parliament is flawed. Mr Brooker submitted that rangatira continue to strive to assert their lawful sovereignty which has been usurped unlawfully by the Crown, and it does not have a lawful right to assert sovereignty. As a result, its actions, including those of Parliament, have no legal effect. Mr Brooker cited the Privy Council decision of Madzimbamuto v Lardner-Burke in support of his submission that the purported exercise
2 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA).
of power by a usurper cannot affect or override the legitimate sovereignty of rangatira.3
(f)Belligerent military occupation had been used by the British/New Zealand Crown to achieve almost complete de facto sovereignty at the expense of the de jure sovereignty of rangatira which survives to this day. Mr Brooker referred to the military invasion of parts of New Zealand which has been recognised by the Waitangi Tribunal and that such military occupation cannot confer de jure sovereignty on the Crown.
Decision
[7] The issues raised by Mr Brooker are of a type that have been argued before the Courts of New Zealand on many previous occasions and have been rejected at all levels. In R v Mitchell, Hammond J, in response to an argument by the appellant that he was not subject to the jurisdiction of the High Court, observed:4
[14] This Court has made it plain on a number of occasions now that arguments that are based upon an assertion that the Parliament of New Zealand was not authorised to make law affecting some or all of the persons living in New Zealand cannot succeed before it. Our Courts are bound to accept the validity of Acts of Parliament, including the Land Transport Act 1998. Although this issue does involve a point of law, Mr Mitchell’s proposition has been squarely rejected on many occasions in the High Court and Court of Appeal. ...
[8] In Barrett v Police, Randerson J held that the supremacy of Parliament and the effect of the Constitution Acts was beyond question:5
[7] It is axiomatic under our constitutional arrangements that the legislative authority of Parliament is supreme. The sovereignty of the New Zealand Parliament was canvassed in a helpful discussion by Fisher J in Berkett v Tauranga District Court [1992] 3 NZLR 206, 212-213. His Honour examined all the relevant constitutional enactments and concluded there was an unbroken chain of constitutional authority to support the validity of statutes passed by the New Zealand Parliament including, in particular, the Crimes Act 1961. The New Zealand Parliament has had full and exclusive power to legislate since the adoption in 1947 of the United Kingdom Statute of Westminster 1931. The power to legislate now continues under the
3 Madzimbamuto v Lardner-Burke [1969] 1 AC 645.
4 R v Mitchell CA68/04, 23 August 2004.
5 Barrett v Police HC Hamilton CRI-2003-419-64, 14 June 2004.
Constitution Act 1986 which is not affected by the Imperial Laws Application Act 1988. To similar effect, see the unreported decision of the Court of Appeal in R v Knowles (CA.146/98, 12 October 1998 at pp1 to 3).
[9] In consideration of Mr Brooker’s argument, I set out in full the relevant passage from Fisher J’s analysis in Berkett v Tauranga District Court which was referred to by Randerson J in Barrett v Police:6
It does not appear to be disputed that if one were to start with an assumption of Imperial sovereignty dating from the mid-19th century there would be an unbroken chain of constitutional authority for all the legislation that followed. It was the Imperial Parliament in England which enacted the New Zealand Boundaries Act 1863. The Crimes Act 1961 was a statute of the New Zealand Parliament but long before it was passed the latter had derived its authority from the New Zealand Constitution Act 1852 (UK) (15 and 16 Vict, Ch 72). Referring to the General Assembly of the colony of New Zealand, s 53 of that Act provided that “it shall be competent to the said General Assembly (except and subject as hereinafter mentioned) to make laws for the peace, order and good government of New Zealand, provided that no such laws be repugnant to the law of England...”. Section 1 of the New Zealand Constitution (Amendment) Act 1947 (UK) conferred upon the New Zealand Parliament the power to suspend or repeal the New Zealand Constitution Act 1852 (UK). Taking advantage of that delegated power, the New Zealand Parliament by s 26 of the Constitution Act 1986 declared the New Zealand Constitution Act 1852 (UK) to be no longer a part of the law of New Zealand but the combined effect of s 26(2) of the 1986 Act and ss 20(g) and 20A of the Acts Interpretation Act 1924 was to preserve the force of all existing New Zealand statutes including the Crimes Act 1961...
The result up to this point is that there is an unbroken chain of constitutional authority for the statutes upon which the respondents now rely in this case – The New Zealand Boundaries Act 1963, the Crimes Act 1961 and the Territorial Sea and Exclusive Economic Zone Act 1977 – stretching back to the Imperial Parliament’s assumption of a power to legislate for the territories of New Zealand in the mid-19th century. For the final and crucial step, namely the acquisition of sovereignty by the Crown at that time, one must again venture beyond the reassuring confines of constitutional and domestic law as a closed system. The origins of that sovereignty are discussed by Richardson and Somers JJ in New Zealand Maori Council v Attorney General at pp 671 and 690. They refer to Hobson’s proclamations of 1840 declaring the Crown’s sovereignty over New Zealand, the approval of the proclamations by the Crown in London and the publication of the proclamations later that year in the London Gazette. The questionable nature of some of the assumptions purportedly justifying the proclamations at the time (whole of North Island ceded by the Treaty of Waitangi; South and Stewart Islands unoccupied by any Maori group capable of exercising sovereignty there; no presence capable of resisting acquisition by discovery) has not detracted from the general recognition afforded to the proclamations ever since. As Richardson J commented “It now seems widely accepted as a a matter of colonial law and international law that those proclamations approved by the Crown and the
6 Berkett v Tauranga District Court [1992] 3 NZLR 206 (HC) at 212.
gazetting of the acquisition of New Zealand by the Crown in the London Gazette on 2 October 1840 authoritatively established Crown sovereignty over New Zealand”. ...
[10] I appreciate that Mr Brooker’s submissions challenge the correctness of the effect of Hobson’s proclamations of 1840, but his argument does not address the following paragraph from Fisher J’s judgment:7
But in fact it is neither necessary nor permissible for a Court to delve back into history to establish the pedigree of the New Zealand Parliament, or the territorial scope of its authority, for the purpose of assessing the validity of a current statute. Once Parliament passes or adopts a statute, the Courts must apply it. An assumed clash of sovereignties in the mid-19th century cannot provide the basis for challenging a New Zealand Act of Parliament.
[11] In Barrett v Police,8 Randerson J concluded that it was the Court’s duty to apply enactments made by the legislature.9 Other cases are to similar effect. In Wallace v R, the Supreme Court held that arguments rejecting the jurisdiction of the Courts essentially on Maori sovereignty grounds were “plainly unsound legally”.10 In R v Ransfield, Williams J observed that the “Court is bound to decline all submissions founded on whatever basis that notions of Maori sovereignty exempt those claiming to be Maori from the jurisdiction of the civil and criminal justice system of this country”.11
[12] Williams J, in Morunga v Police, exhaustively reviewed the jurisprudence concerning the frequent arguments challenging the sovereignty of Parliament and the jurisdiction of the Courts of the type advanced by Mr Brooker.12 Williams J concluded that the objection raised by such arguments distils to a single fundamental question of whether all persons in this country are subject to the laws passed by the New Zealand Parliament.
[13] In answering that question, Williams J referred to his judgment in R v Ransfield, where he held that the Court is bound to reject all submissions questioning
7 At 213.
8 Barrett v Police, above n 5.
9 Citing Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC) and
New Zealand Maori Council v Attorney-General, above n 2.
10 Wallace v R [2011] NZSC 10 at [2].
11 R v Ransfield HC Rotorua TO30059, 22 February 2004 at [12].
12 Morunga v Police HC Auckland CRI-2004-404-008, 16 March 2004.
the criminal jurisdiction of the Courts which are founded on the notion of Maori sovereignty under whatever variant it may be presented. All within New Zealand’s borders are subject to the jurisdiction of New Zealand Courts. The sovereignty of Parliament and its ability to pass laws binding on those within the boundaries of this country is absolute. All persons are required to comply with laws passed by Parliament, and the Courts are similarly obliged.13 Mr Brooker may not accept this position but there has been unanimous judicial rejection of his argument or variants of his central claim that Parliament lacks sovereignty to pass law and that the Courts are without jurisdiction. The Courts are bound to comply with the laws of this country as passed by Parliament. It follows that his appeal must fail.
Result
[14] Mr Brooker failed to file his notice of appeal within the statutory time period.14 In explanation, he advised there had been some delay in the Court providing him with a written record of Judge Saunder’s decision. The Crown was not prejudiced by the default. While Mr Brooker’s challenge is without merit and of a type the Courts have uniformly previously dismissed, I granted leave and heard his argument in full.
[15]However, for the reasons given, his appeal against conviction is dismissed.
Solicitors:
Raymond Donnelly & Co, Christchurch Copy to:
Mr Brooker
13 R v Ransfield, above n 11, at [10].
14 Criminal Procedure Act 2011, s 231(2).
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