[Editor’s note: The following article is longer than usual, but it gives the legal history and reasoning that is conspicuously absent from Australian Constitutional Law. Gumshoe is the only place that has ever re-printed it. No legal publication, Bar Association, Law Society or cute ‘legal trade’ magazine would touch it. Most of the bolding is mine.]
by Terry Shulze, retired Barrister-at-Law
This article is a result of a discussion I had with Dee [McLachlan] about a case I did back in 1988-89. I was approached by some people that were challenging the Egg Industry Act. The plaintiff, an egg farmer, had run out of money and now they needed a barrister to continue the case on a spec/pro bono basis. Having lost at the Supreme Court level, the case was now in the Court of Appeal. I was only two years at the Bar and had never appeared in the Supreme Court, let alone the Court of Appeal.
I agreed to take a look at the documents. Almost immediately I was close to puking. The former sleazy/incompetent lawyers had pleaded an alleged constitutional issue that the legislation was not one for the ‘peace, welfare or good government’. The reason for my indigestion was that issue had been decided in the Union Steamship case in the High Court BEFORE those lawyers had filed the pleadings. This case was a dead loser right out of the gate and they had strung him along until his money ran out. The legislation they were challenging was a typical ‘pay to play’ piece of rubbish that Australian Parliaments are so fond of passing.
The more I read, the angrier I got. There were two inquiries (the Gilchist and ACIL Reports), commissioned by the Parliament and paid for by the people of NSW that the legislation wasn’t doing what it purported to be doing – and the Parliament wasn’t doing anything about it.
OK, if I took on this train wreck, what was in it for me? Only that I could stop an injustice and run some legal arguments that Australia desperately needed to hear. As far as compensation, my client’s total contribution was a frozen turkey and four dozen eggs.
So, how could I turn it around at the last minute in the Court of Appeal? Thankfully, I had been educated in Law in America. I had to take a semester of English Constitutional Law before I could take American Constitutional Law. The case was clearly a ‘rational basis’ case. That is – ‘The substance of Law is Reason, a law without a reason doesn’t have the substance of law, and something without substance is called a VOID’.
And thus my journey into the bowels of Australian Constitutional law began.
I listened to my fellow barristers waffle on about the Sovereignty of Parliament and how I couldn’t challenge a Parliamentary law. They also told me that the citizens did not have Fundamental Rights and that after the Colonial Laws Validity Act that those fundamental principles of English Law did not apply. I was like WTF? Why are these guys walking around in wigs and gowns if they aren’t going to practice English Constitutional law?
The culprit was no doubt a drug affected lunatic. Better to more effort in to stop illicit drugs. Ed
And CN you need to be up to speed on this one. The paramedic stabbing. His family now calling for “Steven’s Law” . Hasn’t been dead a week.
“Jeff Tougher said he wanted mandatory life sentences for any emergency service worker killed on the job and mandatory prison terms for anyone assaulted.”
As you smart people here would be aware that includes police.
The wonderful Chris Minns, is considering legislation, according to the article. I personally have never heard of anyone with surname “tougher ” (supposed victim) or “fineanganofo” (supposed murderer). Hard to find on the internet, bar this story. And people are giving them money really???
Again from article:
“A GoFundMe page set up on Friday afternoon to seek support for the family has amassed more than $440,000 in donations.”
Do not donate!
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One hundred percent correct
One hundref percent correct
Â Thank you for publishing this article written by Terry Shulze.
Â I attach Terry’s brilliant booklet, which gives a lot more ammunition
for any lawyers to use if they wish to win legal challenges.
Â I also attach a news article that I wrote when I was disgusted (Oct
2021) to listen to a NSW Supreme Court Judge dismissing two court cases
– I heard him say that Australians have no right to bodily integrity
because Australia has no Bill of Rights!Â The Judge was WRONG and IGNORANT
Â regards, Lex
Perolof1944… This is not important, but Aborigines did have a name for the land. The problem was, there were some 360 languages, and in each language the name was different. In the main language I use it is ‘Whanga’. There are prefixes and suffices too, depending upon context.
Incidentally, zero apropos, the first time I heard the term ‘Terra Nullius’ was in a Law Reform Commission meeting in Darwin in 1975. I think it was made up for the occasion. I am not the only person who has been unable to uncover an 18th century reference or use.
According to Arthur Chresby, the only sovereignty flows from Magna Carta and the three following sources of law cited by Terry Shultz; and the Australian Constitution placed sovereignty in neither the parliament nor the people, but concluded that if we felt oppressed we can complain to the monarch; ie the Queen or King of England.
Having said that, Australian High Court Judge Harry Talbot Gibbs concluded, having consulted the Courts of England, that Australia is still a colony of England, ie a member of the British Empire.
But if one is a student of geopolitical international law, one notes the coup d’eTat by the CIA and MI6 in 1975, which jointly represented England and the US, but more specifically the controllers of those two agencies, the City of London and Rockefeller’s Wall Street.
It is my contention that the legal history of Australia has become so convoluted that we really need to start afresh. Which takes me to Terry’s assertion about the invalidity of the concept of “sovereignty of parliament”. If the parliament is sovereign, that makes it a dictatorship of the parliamentarians, which immediately alienates it from the Magna Carta.
This entire discussion obviates two important questions, (1) what is the value of a constitution? and (2) what is the most basic sovereignty?
If ‘The People’ are sovereign, this can only be true if every individual member of ‘The People’ is sovereign. Thus, the question raised a week ago, can one be a sovereign citizen? the answer must be “Yes”.
As to the Constitution, every one of the 60 nations subverted and invaded by the US since 1946, embraced a national constitution. Did the constitutions protect the people? No. So why are we having this absurd conversation. There is only one source of protection of The People, and that is The People. And to achieve that protection, every adult individual must be enabled to share in formulation of policy and law.
That is precisely what Abraham Lincoln was trying to tell us when he said “Government of the people, by the people and for the people”. Likewise, Thomas Paine meant the same thing when he wrote “All authority resides in the people”.
This is precisely the reason that the globalists keep harping on about the “failure of democracy” because what failed us was their oligarchy, which is a marriage between corporations, the plutocracy, and politicians. The Italians named this Fascism. We had no democracy so, of course, the no-existent did not fail us.
So the correct summation is that fascism failed us, wow, big surprise; and we need to reinstall democracy, only this time, no compromises. No representationalism. No politicians. No parliaments. No hierarchies. Just The People, fully informed; and to be well informed we need to get rid of Rupert Murdoch.
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The Commonwealth of Australia, “Australia” according to the Acts Interpretation Act 1901 Section 2b, consists of Norfolk Island, Christmas Island and the Cocos (Keeling Islands) but, no external territory. The land mass referred to as “Australia” is a land with no name, the first peoples never gave it a name. The invaders hoodwinked everybody into believing, what has been known as Terra Australis and named by the Dutch New Holland, was in fact this greater land mass they named “Australia” The Constitution of the Commonwealth of Australia cannot apply to this greater land mass, so those who live here are not subject to their Constitution or their laws, the reality is we are subject to the laws of the first peoples and their countries they occupy.
These Canberra and state gov’t Corporate Pretenders and their parties are not the Commonwealth of Australia.
The High Court recognizes the 1901 and the Westminster jurisprudence of its foundation as one source of law in Australia. The other source of law is Aboriginal Law. The High Court claimed not to be competent to rule on sovereignty. However, the 1901 states that the sovereignty rests with the people constituted as ‘Australians’ – everyone living in the states that entered into the 1901 Constitution.
Having enacted the 1973 fake Parliamentary sovereignty, the Corporate Pretender is completely utra virez its 1901 Constitutional boundaries. It is trying to do an ‘end run’ around their illegitimacy by cloaking their ‘colour of law’ rulz and regs with the second source of law via a referendum that may in fact do away with (de jure) the 1901 Constitution recognition of the Australian people as a sovereignty.