Courts of Australia in 2009

How or why does this jurisdiction refuse to recognize common law & equity, or any authorities in jurisprudence?

Let’s look at Queensland. Under the current Parliamentary Supremacy of govt, this state was ‘birthed’ in 2001, when the Qld Constitution 2001 came into existence. And hence the new jurisprudence of public policy.

Due to that timeline the supreme “Authority” for jurisprudence is held by “Bone v Mothershaw” which was a decision off the back of the newly commenced Constitution. All jurisprudence in Queensland has a “Start Date” of (approx) June 2002 to this present day.

And remember, the outcome of Bone v Mothershaw was that a court could refuse to give a petitioner permission to take their appeal to the High Court, because the High Court would refuse it!

So, the first authority for jurisprudent decisions removed the High Court from this new structure of law.

No court in QLD can use any case prior to this date as a decision making tool. And because there is such a shortage of cases to use, the Courts are bound to the Statutory Instruments (legislation).

Because of this lack of any pre-existing jurisprudence in authorities, the Courts must use that very same Statutory Instrument not only for the Court’s jurisprudence but for its authority.

In other words, the current govt legislation gives the court its rules and tells the court its decisions. And so the courts must find for the govt in almost all relevant cases.

Under that structure of legislative “precedent”, the courts now operate under a balance of probabilities. For example – you may have a tree on your land, a particular bird may prefer to nest in that type of tree, however at a point in time, the bird has never done so. You cut down that tree, and are fined heavily under the relevant environmental laws.

In effect, the court must rule that the bird could have nested in that tree, may be planning to nest in that tree, may even have been in the process of nesting in that tree, and if it had you would have harmed the bird when felling the tree.

Therefore on the balance of probabilities, you are guilty. And you cannot prove yourself innocent because there is no legislation that gives you any way of doing so.

Now at this point, you are all probably jumping up and down and telling me “They can’t do that!” “We haven’t had a referendum about this!” “They can’t do that under this law, that law, the other law!” And a few more “They can’t do that!”

Well, they have. And the sooner we accept that and work out how to restore our Constitution to its supremacy, return ourselves to being common law men and women, turf out these fraudulent individuals and learn to protect our vital rights, the less likely this is to happen ever again.

Meanwhile, it has and what can we do about it?