Geoffrey Douglas Skelton v Registrar of Motor Vehicles [1996] ACTSC 24 (4 April 1996)

SUPREME COURT OF THE ACT

GEOFFREY DOUGLAS SKELTON v. REGISTRAR OF MOTOR VEHICLES
No. SCA5 of 1996
Number of pages - 3
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T CONNOLLY

CATCHWORDS

Practice and Procedure - Application to Strike out Appeal - Parking Infringement - Whether Appellant Presents an Arguable Case - Validity of the Australian Constitution - Validity of the Motor Traffic Act (ACT).

Motor Traffic Act (ACT)

Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1

Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1
Australian Capital Television v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106
Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226
Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193
Coe v Commonwealth [1978] HCA 41; (1979) 24 ALR 118

HEARING

CANBERRA, 4 April 1996
4:4:1996
Date of Reasons for Decision: 12:4:1996

The Appellant appeared in person

Counsel for the Respondent: Mr S Goggs

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The appeal be struck out.
2. The appellant pay the respondent's costs of this application.

DECISION

MASTER T CONNOLLY This is an application to strike out documents filed in this Court purporting to be an appeal from a decision of Magistrate Hardiman affirming a parking infringement imposed on Mr Skelton under authority of the Registrar of Motor Vehicles.

2. In documents filed in support of the appeal and in oral argument before me Mr Skelton made it clear that his ground of challenge is of a most fundamental kind. Mr Skelton contends that the Motor Traffic Act is invalid, because, he says, the Constitution of the Commonwealth of Australia is invalid. His argument is that the Motor Traffic Act, and the Constitution, are based on the authority of the British Parliament, and that as an Australian citizen he can not be subject to any law which traces its authority to the British Parliament. He concedes that it follows from this argument that all laws of the Commonwealth, the Australian Capital Territory and the States equally have no application. The inconvenience of this legal void he expects to be resolved when the United Nations hands down an "interim Australian Constitution".

3. It is clear to me that this appeal has no possibility of success, and that I should strike out these proceedings. Mr Skelton does not present any case that is arguable. I indicated this to Mr Skelton at the outset of this hearing, and he has flagged his intention to pursue the issue through the forums of the United Nations.

4. The proposition that the structure of government and laws in Australia is invalid because it is now based on a foreign parliament is totally inconsistent with authority. The evolution of Australia from the status of a series of colonies of the British Crown to a sovereign independent nation has been extensively set out by learned authors (e.g. The Evolution of Australia's International Personality by D P O'Connell and James Crawford, K W Ryan (Editor) International Law in Australia (1984), A Sovereign People, A Public Trust by P D Finn in Finn (Editor) Essays on Law and Government (1995)) and has been recognised by the High Court in Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1.

5. The ultimate source of constitutional authority in Australia is now derived, not from the Parliament of the United Kingdom, but from the Australian people -

"the doctrine of representative government which the Constitution
incorporates is not concerned merely with electoral processes. As has
been said, the central thesis of the doctrine is that the powers of
government belong to, and are derived from, the governed, that is to
say, the people of the Commonwealth. The repositories of governmental
power under the Constitution hold them as representatives of the
people under a relationship; between representatives and represented,
which is a continuing one"

(per Deane and Toohey JJ in Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1 at 72).

6. This passage answers Mr Skelton's contentions. Mr Skelton is liable for prosecution if he parks his car illegally, not because a British Parliament said so, but because the law that imposes the parking fine is a law passed by, and deriving its authority from, a democratic legislature. The "continuing" relationship between the people and their parliaments is the source of this authority - it is the reason we obey the law.

7. The clearest exposition of the present source of authority for Australian governance is set out in the judgment of Mason CJ in Australian Capital Television v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 137-8:

"The very concept of representative government and representative
democracy signifies government by the people through their
representatives. Translated into constitutional terms, it denotes
that the sovereign power which resides in the people is exercised on
their behalf by their representatives. In the case of the Australian
Constitution, one obstacle to the acceptance of that view is that the
Constitution owes its legal force to its character as a statute of the
Imperial Parliament enacted in the exercise of its legal sovereignty;
the Constitution was not a supreme law proceeding from the people's
inherent authority to constitute a government, notwithstanding that it
was adopted, subject to minor amendments, by the representatives of
the Australian colonies at a convention and approved by a majority of
the electors in each of the colonies at the several referenda.
Despite its initial character as a statute of the Imperial Parliament,
the Constitution brought into existence a system of representative
government for Australia in which the elected representatives exercise
sovereign power on behalf of the Australian people. Hence, the
prescribed procedure for amendment of the Constitution hinges upon a
referendum at which the proposed amendment is approved by a majority
of electors and a majority of electors in a majority of the States
(s.128). And, most recently, the Australia Act 1986 (UK) marked the
end of the legal sovereignty of the Imperial Parliament and recognized
that ultimate sovereignty resided in the Australian people. The point
is that the representatives who are members of Parliament and
Ministers of State are not only chosen by the people but exercise
their legislative and executive powers as representatives of the
people. And in the exercise of those powers the representatives of
necessity are accountable to the people for what they do and have a
responsibility to take account of the views of the people on whose
behalf they act."

8. Mr Skelton's arguments must therefore fail.

9. But there is a further, and perhaps more fundamental reason why I must strike out this appeal. Mr Skelton's argument is premised on the invalidity of the Constitution - it is a challenge to the very order under which this Court derives its authority (Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226). A similar fundamental challenge to the source of sovereign authority of this country was rejected by Mason CJ in Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193 at 200 citing Jacobs J in an earlier challenge (Coe v Commonwealth [1978] HCA 41; (1979) 24 ALR 118) where His Honour said of paragraphs in a statement of claim challenging the sovereignty of Australia that they were

"...not matters of municipal law but of the law of nations and are not
cognisable in a court exercising jurisdiction under that sovereignty
which is sought to be challenged"

(at 132).

10. I strike out this appeal and order that the appellant pay the respondent's costs of this Motion.