Brooker v Police

[2014] NZHC 882

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2014-418-000005 [2014] NZHC 882

ALLISTAIR PATRICK BROOKER

v

NEW ZEALAND POLICE

Hearing:	30 April 2014
Appearances:	Appellant in person C J Lange for Respondent
Judgment:	1 May 2014

JUDGMENT OF DUNNINGHAM J

[1]      Mr Brooker appeals against a District Court decision dated 16 January 2014, finding a charge proved of operating a private vehicle on a road that was not displaying current evidence of vehicle inspection contrary to s 34(1)(b) of the Land Transport Act 1998.

The District Court decision

[2]      The only evidence presented in the District Court was a brief of evidence from Constable Nigel  Orpwood which was unchallenged by Mr Brooker.   That statement made it clear that Constable Orpwood stopped the defendant who was driving a motor vehicle which did not have a current warrant.   The warrant had expired and the defendant was issued with an infringement notice.

[3]      Mr Brooker did not elect to give evidence himself but made submissions asking that the charge against him be dismissed.  The defence raised by Mr Brooker,

and which was argued again in this hearing, boiled down to an assertion that the

BROOKER v NEW ZEALAND POLICE [2014] NZHC 882 [1 May 2014]

Land Transport Act 1998 was not lawful, because the New Zealand Parliament had no right to make laws, and therefore he could not be charged under it.

[4]      Unsurprisingly, the District Court Judge explained that his function was to apply the law and not make the law, and he was bound by the doctrine of precedent. He then made reference to a recent Court of Appeal decision, Phillips v R,1  which said:

The legal foundation for his argument has been considered and rejected by this  Court  and  also,  significantly,  by  the  Supreme  Court  as  plainly unarguable. The leading decisions affirm that Parliament is sovereign and its legislation applies to all New Zealanders irrespective of race.   Thus New Zealand Courts are bound to accept the validity of all statutory enactments including the Land Transport Act.  (citations omitted)

[5]      Given that the prosecution had made out the elements of the charge, and that the Judge did not have power or jurisdiction to dismiss the charge on any of the arguments Mr Brooker advanced, the Judge found the charge proved.

Grounds of appeal

[6]      Mr Brooker provided fulsome submissions setting out his grounds of appeal. As in the District Court, no issue was taken by him over whether the Constable’s evidence was sufficient to establish the charge, which was operating a motor vehicle without a current warrant of fitness being displayed.   Again, the essence of the appeal was that the Judge erred in law by “upholding the demonstrably unlawful Land Transport Act”.

[7]      Like the learned District Court Judge, I will endeavour to summarise the arguments and submissions filed by Mr Brooker, but recognise that I do not do full justice to them.  However, in short, Mr Brooker submitted that:

(a)      the   proclamation   by   Lieutenant-Governor   William   Hobson   on

30 January 1840, declaring that sovereignty vested in the Queen of the

United  Kingdom  of  Great  Britain  and  Ireland  and  her  heirs  and

1      Phillips v R [2013] NZCA 580.

successors, is the “foundation document of New Zealand” establishing

“British Crown sovereignty in New Zealand”;

(b)the New Zealand Constitution Act 1852 (the 1852 Act) which was enacted by the Parliament of the United Kingdom and granted self government to the colony of New Zealand was therefore “wrong” because it allowed a “contravention of Hobson’s proclamation”;

(c)      it follows from that, that the Acts made by the separate New Zealand Parliament  (initially known  as  the  General Assembly),  established under the 1852 Act, are all unlawful and have no validity;

(d)      for the same reason, the Constitution Act 1986 which replaced the

1852 Act and confirmed the ongoing role of Parliament and its full power to make laws, was equally unlawful;

(e)      as a consequence all laws made by the New Zealand Parliament are unlawful legislation; and

(f)       it is the Court’s duty and right to strike down unlawful legislation.

[8]      The obvious response to Mr Brooker’s arguments is that this Court, like the District Court, is bound by the doctrine of precedent,2 and must follow decisions of the Court of Appeal and the Supreme Court.

[9]      There is ample case law emanating from these superior Courts confirming the sovereignty of Parliament and that the New Zealand Courts must apply Acts of Parliament, in the terms in which they have been enacted, to all persons within the

territory of New Zealand.

2      See, for example, Collector of Customs v Lawrence Publishing Co Ltd [1986] 1 NZLR 404, which confirms that Court of Appeal decisions are binding on the High Court including the full Court of the High Court.

[10]     However,  for  completeness,  I  should  also  add  that  I  fail  to  see  how Lieutenant-Governor Hobson’s proclamation precludes the United Kingdom Parliament (whose head is the Sovereign of the United Kingdom) from enacting a law which allows its colony to be self governing to the extent that the 1852 Act permitted,  and  then  for  those  constitutional  arrangements  to  be  progressively amended and developed, as they were, culminating in the enactment of the Constitution Act 1986. The Constitution Act 1986, of course, provides that:

(a)       there  shall  be  a  Parliament  of  New  Zealand  consisting  of  the

Sovereign in right of New Zealand and the House of Representatives;3

(b)      the     Governor-General     is     the     Sovereign’s     representative     in

New Zealand;4

(c)       the Parliament has full power to make laws;5 and

(d)      a bill passed by the House of Representatives becomes law when the

Sovereign or the Governor-General assents to it and signs it.6

[11]     As Mr Brooker himself acknowledged, there is a “catch-22” aspect to his argument.   If the Sovereign of the United Kingdom can assert sovereignty over New Zealand, then it follows that the Sovereign also has the power to establish and authorise a New Zealand Parliament to make laws for New Zealand.   Nothing in Hobson’s proclamation precludes this.

Conclusion

[12]     This Court is bound, by precedent, to accept that the New Zealand Parliament is sovereign and its legislation is valid and applies in New Zealand.  The submission that there was no power to establish a General Assembly, or subsequently a Parliament, in New Zealand is untenable, as is the corollary of that, which is that all

legislation enacted by the New Zealand Parliament is unlawful.

3      Section 14(1).

4      Section 2(2).

5      Section 15(1).

6      Section 16.

[13]     Accordingly, the appeal is dismissed.

Solicitors:

Raymond Donnelly and Co., Christchurch