February 4 2010 - THANK YOU TO EVERYONE WHO SUPPORTED THIS MATTER WITH LETTERS AND DONATIONS.
PLEASE DO NOT SEND ANY MORE LETTERS.
The EnviroWild Team is asking for support with our lodgement in the High Court in January, asking the Justices to ask the Premier of QLD to answer the Demand Questions.
Following is the letter we are asking the People of QLD to sign and return to us.
Fax to (07) 4096 2641
The cost of High Court cases are massive, please donate $165 (incl GST) per family OR $110 (incl GST) per individual.
Either as a postal order, a cheque or into the following account Envirowild Pty Ltd
NAB
BSB: 084 512 Account No: 79847 1759
Name ………………...…………………………………………………….
Residential Address ……..………………………………………………………………..
………………………………………………………………………
Postal Address ………………………...…………………………………………….
………………………………………………………………………
I am a sovereign person and an entity inside the
Commonwealth of Australia Constitution Act 1900 (UK) of 9th July 1900 and the
Commonwealth of Australia Constitution Act 1901 proclaimed on the 1st January 1901.
I, along with all the other sovereign people inside the Constitution as in its Preamble, am an equal shareholder of all the assets of the Commonwealth of Australia, those assets being currently held under the Corporations Act 2001 (C’wth).
I hereby support the Demand for Information from The Honourable Anna Bligh MP Premier of the State of Queensland by Mr David John Walter on 1st December 2009.
If this information has not been supplied to Mr David John Walter by close of business on 31st December 2009, I wish to be named in the application for a prerogative writ of mandamus, that The Honourable Anna Bligh MP Premier of the State of Queensland, presents the information requested by Mr David John Walter on 1st December 2009, at a date of mention to the full High Court, subject to Chapter III of the Commonwealth of Australia Constitution Act at Sections 75(5), 76(2) and 80.
On the day of mention to the full High Court, if the information is still not forthcoming, a further request will be made by Mr David John Walter for a further writ.
I have not been informed by any elected representative of the body politic of either Queensland or the Commonwealth of Australia, as to changes to Queensland’s Constitution Act 1867, subject to Section 53, to alter the position of that Constitution.
I have not been requested by the subjects of the Commonwealth of Australia Constitution Act under Sections 117 to 128, to vote as to whether to allow Queensland, as a State of the Commonwealth of Australia subject to the Commonwealth of Australia Constitution Act 1900 (UK) and the Commonwealth of Australia Constitution Act 1901, to become a Sovereign State, to vote as to whether Queensland may use the assets of the sovereign people under the Corporations Act 2001 (C’wth), and to vote as to whether Queensland’s legislature should not comply with section 109 of the Commonwealth of Australia Constitution Act 1900 (UK) and the Commonwealth of Australia Constitution Act 1901.
If this matter is to be put before the High Court, I also request that the High Court accept this as my application to join in the application for a prerogative writ of mandamus to be put to The Honourable Anna Bligh MP Premier of the State of Queensland, as no referendum has been placed before me in these matters by my elected Members of the body politic thereby failing to respect and uphold the trust I placed in them by my vote.
I also request that the High Court allow further time for acceptance of any other sovereign person of the Commonwealth of Australia to join in this action after its initial lodgement.
……………………………………… ………………………………………
(Printed Full Name) (Signature)
Signed this ………………..……..….…….. day of ………….…..……….….…….. 20…..
Showing posts with label high court rulings. Show all posts
Showing posts with label high court rulings. Show all posts
Sunday, January 10, 2010
Thursday, January 7, 2010
Doubts About the Validity of the Constitution of the Government 1901
The West Coast of Australia had been discovered by Dirk Hartog, a Dutch explorer.
The East Coast by Captain Cook.
Subsequently the east coast was colonised as penal colonies, and eventually those colonies broke away to form independent colonies.
SA was included but founded by private settlers.
SA went all the way through to the top of Australia and included what is now the Northern Territory.
Due to the Dutch claim over WA, private settlers moved there, but the English Crown had no claim of right on the land, so to go to the settler’s aid with military forces may have been seen as a act of aggression by the Dutch.
So, prior to Federation each state except WA operated as an Independent Colony under the dominion of Great Britain.
In 1855 the administration of several independent colonies created the Federal Council of Australasia.
This agreement was for trade purposes between the states.
During the late half of the 1800’s the people of all colonies, except WA, indicated that they would be in agreement to forming a Federation – joining the states together under one common government.
10 years of conventions and referendums followed, until a draft Constitution was finally created and sent to England for ratification by the Parliament and the Queen.
This draft had several changes made to it by the British Parliament.
In the meantime, the People of WA had asked to be included.
So, when Queen Victoria signed the Commonwealth of Australia Constitution Act (UK) on 9 July 1900, she signed pending the approval of the People of the eastern states giving permission for WA to be included and for their final approval of the changes in the Constitution that was being returned to Australia.
Now, for anyone to understand the Constitution, which is a clear and extraordinary document, they must remember that the first 8 chapters are British law.
The Constitution stands at chapter 9.
They must also understand that this is an agreement of the PEOPLE, not government.
The Commonwealth is the People, so when we talk about the Commonwealth of Australia, we are referring to the People (united) of Australia.
In that draft constitution, the PEOPLE agreed to unite and agreed to have the assets of the Crown administered by Parliament and public servants.
The PEOPLE were to be subject to criminal law for crimes against other people.
The parliament’s only task was to administer and protect the assets of the Crown.
The Queen guaranteed to pay those public servants out of her pocket, the People funding her pocket through their taxes.
Quite simple.
So, when this document returned to Australia, the leaders of those independent colonies were in a pickle.
The Boer War was looming, which meant that Australia, as a troop & financial supporter of the British side, could be attacked by the Dutch using WA as a base.
The preparation for the Federation had taken 10 years, and it was likely that to approve the changes could take as long.
So, the framing fathers decided to approve the new Constitution FOR and ON BEHALF of the People.
They pledged an oath of honour to govern under it, that oath being held by the High Court.
And they did, for many years.
However, the fact remained that the Constitution brought into power by the Governor-General on 1 January 1901, was NOT APPROVED AT REFERENDUM by the People, but was essentially a constitution between the British Parliament and the Australian Independent Colony’s administration heads.
[To put this very simply, a bowling club gets set up.
The assets of that club belong to the members, it is run for the convenience of the members, and they appoint a body to administer the assets and the overall health of the club.
The body has a leader, who is no more or less than a person from the membership taking on a role for a period of time.
The staff of the club are paid from the funds held under the body’s administration.
That money coming from the members.
The staff are charged with obeying the instructions coming from the membership via the body. The head of the body can not sell an asset without prior approval of the membership.
Or make a new ruling, or appoint new staff.
He and the body must always answer to the membership.
Nor can he go to a members private home and remove an asset of the member, just because he is a member.
Nor can he start a new form of club without the permission of the members.
The structure of the Parliament of the 1900 Constitution is no different.]
In 1917, the People of QLD were asked in a referendum to allow the removal of the parliamentary upper house.
They refused, yet in 1923 the QLD parliament removed it.
The Constitution has what is called Manner and Form – that being the proper and lawful arrangement under which the government entities must operate.
To breach Manner and Form causes that government to step outside the Constitution.
This is what QLD did and from that time on, QLD began to operate outside the Constitutional structure.
In 1927, the British Parliament amended the Royal Styles and Titles Act, changing the Monarch’s title from a single Crowned head to a multiple crown.
Suddenly, it was possible for every dominion to either operate under King George of Great Britain, Ireland and his dominions OR under King George of Canada or of Fiji, or of NZ or whatever.
This fractured the Empire & as our ownership rights are held by the Empire Monarch, it put those in jeopardy.
However, the Australian govt did not bring this act into Australian law until Gough Whitlam took power in 1973.
At this time, by ratifying the Queen of Australia, he created a new government.
And that government had the Crown in the form of the Queen of Australia inside its acts, thereby claiming the Crown for themselves.
We became, in all but name, a Republic at that time.
The Australia Act of 1986, being the Constitution of the new Republican government.
Now, remember the original Constitution was to bring all the independent states into a united structure.
In effect, each state has returned to its independent status, but as republics completely separated from British law, which is why such ancient protections as the Magna Carta, the Bill of Rights 1689 etc are totally absent from current courts.
The new version of the Federal Council of Australasia 1855, is COAG.
Each state is now in a position to ignore the High Court, which is a court of the 1901 British/ Australian Constitution, and can not rule over the independent colonies, hence the decision in Fazzolari v Parramatta City Council for the land owner, and the NSW govt just makes a new piece of legislation giving the council back the right to remove private land.
These independent governments do not operate under laws, but under statutory legislation.
A law, once ratified, cannot be changed without a due process, legislation can be amended daily.
Where is the protection of the People?
Believe it or not, it is still in the Constitution. P
art of the way that this return to independent states has been created is because under the 1901 Govt Constitution, the states retained their ability to make their own laws as long as those laws did not breach the rights of a person in another state.
What they have overlooked is that the Commonwealth is another state.
And remember the people are the Commonwealth.
Therefore, while a person may physically reside in the state of NSW, they are first and foremost a person of the Commonwealth state.
So every law of NSW that removes the rights of a person under the state of the Commonwealth is repugnant (in breach).
S 117 of the Constitution, states that a subject of the Queen (not the Queen of Australia, but of the original constitution), residing in a state (see above) shall not be subject in any other state to any disability or discrimination which would not be equally applicable to him if her were a subject of the Queen resident in such other state.
WITHOUT!!!!!....... S 128 a referendum to gain his or her approval for that disability or discrimination to apply to him or her.
At all times the People must be asked for their approval – and they clearly are not any more.
All federal and state governments in Australia are, in effect and to the rights of the People, a foreign power.
Back to land – we own our land in a contract of trust & equity with Her Majesty Queen Elizabeth II, her Heirs and Assigns – the Crown of the Constitution.
In the contract for that sale, it states that we own the land completely removed from any government interference or claims UNLESS they pay us for it!!!
That being Just Terms compensation.
However, this is the trick.
That Compensation is only guaranteed by the Federal govt of the govt 1901 Constitution.
The states, now operating as independent republics, never made that same agreement.
We must also understand that when Gough Whitlam entered power he set up a Royal Commission into Land Tenures.
The document that came from that, which is mentioned on the internet, but cannot be found on it, came to the conclusion that it would be preferable for govt to buy back land from private owners, but as they could not afford it, the next step was to remove all rights of land use, so as to render the value of the land worthless.
This meant they could acquire it for a song. (I have a copy of that if anyone wants it.)
When the High Court ruled in the Tasmania Dams case in 1983, that government could remove any and elements of land ownership AS LONG as the owner kept his deeds, they were telling the truth from the perspective of the new government under the Australia Act & the Queen of Australia.
However, they neglected to tell the People that their land was not under that act, but under the protection of the Crown as defined in the Commonwealth of Australia Act (UK) 1900.
We needs to stand our ground as a person of the Commonwealth of Australia Act (UK) 1900, under s 117 & s 128.
WE, the PEOPLE of the state known as the Commonwealth, NEVER GAVE OUR PERMISSION TO HAVE OUR OWNERSHIP RIGHTS REMOVED BY A FOREIGN GOVERNMENT.
So where are the people to be found?
In the 1800's the people were governed by military rule, in penal colonies.
The moment the People agreed to the draft Constitution, they stepped INSIDE that structure.
Although that document was not agreed to at a referendum of the People, in order to approve its adoption as the ruling law over the Federation, it still exists.
So the ratification in 1901 of the Commonwealth of Australia Act 1900, by the heads of the independent colonies, does not change the fact that the people are still waiting for their opportunity at a referendum.
Therefore, (to my thoughts), the people are OUTSIDE of both the 1901 govt approved Constitution, and certainly OUTSIDE of this foreign government, all of which are in place without approval.
My thoughts are that the govt can ONLY gain our approval through means such as registration processes, which would explain why every element of trade involves being registered, having certification, licencing, etc.
Again, I would state, our protection is in the strength of s117 and s128.
We, the People, are subjects of the Queen of the 1900 Constitution, who approved the Constitution on the 9 July 1900 PENDING OUR APPROVAL (remember she owns the land on which govt govern and recognizes our right first and foremost) - and we are residents of our own state, that being the Commonwealth. With permission to refuse to allow the govts of the "independent colonies" to remove OUR RIGHTS WITHOUT OUR PERMISSION.
The East Coast by Captain Cook.
Subsequently the east coast was colonised as penal colonies, and eventually those colonies broke away to form independent colonies.
SA was included but founded by private settlers.
SA went all the way through to the top of Australia and included what is now the Northern Territory.
Due to the Dutch claim over WA, private settlers moved there, but the English Crown had no claim of right on the land, so to go to the settler’s aid with military forces may have been seen as a act of aggression by the Dutch.
So, prior to Federation each state except WA operated as an Independent Colony under the dominion of Great Britain.
In 1855 the administration of several independent colonies created the Federal Council of Australasia.
This agreement was for trade purposes between the states.
During the late half of the 1800’s the people of all colonies, except WA, indicated that they would be in agreement to forming a Federation – joining the states together under one common government.
10 years of conventions and referendums followed, until a draft Constitution was finally created and sent to England for ratification by the Parliament and the Queen.
This draft had several changes made to it by the British Parliament.
In the meantime, the People of WA had asked to be included.
So, when Queen Victoria signed the Commonwealth of Australia Constitution Act (UK) on 9 July 1900, she signed pending the approval of the People of the eastern states giving permission for WA to be included and for their final approval of the changes in the Constitution that was being returned to Australia.
Now, for anyone to understand the Constitution, which is a clear and extraordinary document, they must remember that the first 8 chapters are British law.
The Constitution stands at chapter 9.
They must also understand that this is an agreement of the PEOPLE, not government.
The Commonwealth is the People, so when we talk about the Commonwealth of Australia, we are referring to the People (united) of Australia.
In that draft constitution, the PEOPLE agreed to unite and agreed to have the assets of the Crown administered by Parliament and public servants.
The PEOPLE were to be subject to criminal law for crimes against other people.
The parliament’s only task was to administer and protect the assets of the Crown.
The Queen guaranteed to pay those public servants out of her pocket, the People funding her pocket through their taxes.
Quite simple.
So, when this document returned to Australia, the leaders of those independent colonies were in a pickle.
The Boer War was looming, which meant that Australia, as a troop & financial supporter of the British side, could be attacked by the Dutch using WA as a base.
The preparation for the Federation had taken 10 years, and it was likely that to approve the changes could take as long.
So, the framing fathers decided to approve the new Constitution FOR and ON BEHALF of the People.
They pledged an oath of honour to govern under it, that oath being held by the High Court.
And they did, for many years.
However, the fact remained that the Constitution brought into power by the Governor-General on 1 January 1901, was NOT APPROVED AT REFERENDUM by the People, but was essentially a constitution between the British Parliament and the Australian Independent Colony’s administration heads.
[To put this very simply, a bowling club gets set up.
The assets of that club belong to the members, it is run for the convenience of the members, and they appoint a body to administer the assets and the overall health of the club.
The body has a leader, who is no more or less than a person from the membership taking on a role for a period of time.
The staff of the club are paid from the funds held under the body’s administration.
That money coming from the members.
The staff are charged with obeying the instructions coming from the membership via the body. The head of the body can not sell an asset without prior approval of the membership.
Or make a new ruling, or appoint new staff.
He and the body must always answer to the membership.
Nor can he go to a members private home and remove an asset of the member, just because he is a member.
Nor can he start a new form of club without the permission of the members.
The structure of the Parliament of the 1900 Constitution is no different.]
In 1917, the People of QLD were asked in a referendum to allow the removal of the parliamentary upper house.
They refused, yet in 1923 the QLD parliament removed it.
The Constitution has what is called Manner and Form – that being the proper and lawful arrangement under which the government entities must operate.
To breach Manner and Form causes that government to step outside the Constitution.
This is what QLD did and from that time on, QLD began to operate outside the Constitutional structure.
In 1927, the British Parliament amended the Royal Styles and Titles Act, changing the Monarch’s title from a single Crowned head to a multiple crown.
Suddenly, it was possible for every dominion to either operate under King George of Great Britain, Ireland and his dominions OR under King George of Canada or of Fiji, or of NZ or whatever.
This fractured the Empire & as our ownership rights are held by the Empire Monarch, it put those in jeopardy.
However, the Australian govt did not bring this act into Australian law until Gough Whitlam took power in 1973.
At this time, by ratifying the Queen of Australia, he created a new government.
And that government had the Crown in the form of the Queen of Australia inside its acts, thereby claiming the Crown for themselves.
We became, in all but name, a Republic at that time.
The Australia Act of 1986, being the Constitution of the new Republican government.
Now, remember the original Constitution was to bring all the independent states into a united structure.
In effect, each state has returned to its independent status, but as republics completely separated from British law, which is why such ancient protections as the Magna Carta, the Bill of Rights 1689 etc are totally absent from current courts.
The new version of the Federal Council of Australasia 1855, is COAG.
Each state is now in a position to ignore the High Court, which is a court of the 1901 British/ Australian Constitution, and can not rule over the independent colonies, hence the decision in Fazzolari v Parramatta City Council for the land owner, and the NSW govt just makes a new piece of legislation giving the council back the right to remove private land.
These independent governments do not operate under laws, but under statutory legislation.
A law, once ratified, cannot be changed without a due process, legislation can be amended daily.
Where is the protection of the People?
Believe it or not, it is still in the Constitution. P
art of the way that this return to independent states has been created is because under the 1901 Govt Constitution, the states retained their ability to make their own laws as long as those laws did not breach the rights of a person in another state.
What they have overlooked is that the Commonwealth is another state.
And remember the people are the Commonwealth.
Therefore, while a person may physically reside in the state of NSW, they are first and foremost a person of the Commonwealth state.
So every law of NSW that removes the rights of a person under the state of the Commonwealth is repugnant (in breach).
S 117 of the Constitution, states that a subject of the Queen (not the Queen of Australia, but of the original constitution), residing in a state (see above) shall not be subject in any other state to any disability or discrimination which would not be equally applicable to him if her were a subject of the Queen resident in such other state.
WITHOUT!!!!!....... S 128 a referendum to gain his or her approval for that disability or discrimination to apply to him or her.
At all times the People must be asked for their approval – and they clearly are not any more.
All federal and state governments in Australia are, in effect and to the rights of the People, a foreign power.
Back to land – we own our land in a contract of trust & equity with Her Majesty Queen Elizabeth II, her Heirs and Assigns – the Crown of the Constitution.
In the contract for that sale, it states that we own the land completely removed from any government interference or claims UNLESS they pay us for it!!!
That being Just Terms compensation.
However, this is the trick.
That Compensation is only guaranteed by the Federal govt of the govt 1901 Constitution.
The states, now operating as independent republics, never made that same agreement.
We must also understand that when Gough Whitlam entered power he set up a Royal Commission into Land Tenures.
The document that came from that, which is mentioned on the internet, but cannot be found on it, came to the conclusion that it would be preferable for govt to buy back land from private owners, but as they could not afford it, the next step was to remove all rights of land use, so as to render the value of the land worthless.
This meant they could acquire it for a song. (I have a copy of that if anyone wants it.)
When the High Court ruled in the Tasmania Dams case in 1983, that government could remove any and elements of land ownership AS LONG as the owner kept his deeds, they were telling the truth from the perspective of the new government under the Australia Act & the Queen of Australia.
However, they neglected to tell the People that their land was not under that act, but under the protection of the Crown as defined in the Commonwealth of Australia Act (UK) 1900.
We needs to stand our ground as a person of the Commonwealth of Australia Act (UK) 1900, under s 117 & s 128.
WE, the PEOPLE of the state known as the Commonwealth, NEVER GAVE OUR PERMISSION TO HAVE OUR OWNERSHIP RIGHTS REMOVED BY A FOREIGN GOVERNMENT.
So where are the people to be found?
In the 1800's the people were governed by military rule, in penal colonies.
The moment the People agreed to the draft Constitution, they stepped INSIDE that structure.
Although that document was not agreed to at a referendum of the People, in order to approve its adoption as the ruling law over the Federation, it still exists.
So the ratification in 1901 of the Commonwealth of Australia Act 1900, by the heads of the independent colonies, does not change the fact that the people are still waiting for their opportunity at a referendum.
Therefore, (to my thoughts), the people are OUTSIDE of both the 1901 govt approved Constitution, and certainly OUTSIDE of this foreign government, all of which are in place without approval.
My thoughts are that the govt can ONLY gain our approval through means such as registration processes, which would explain why every element of trade involves being registered, having certification, licencing, etc.
Again, I would state, our protection is in the strength of s117 and s128.
We, the People, are subjects of the Queen of the 1900 Constitution, who approved the Constitution on the 9 July 1900 PENDING OUR APPROVAL (remember she owns the land on which govt govern and recognizes our right first and foremost) - and we are residents of our own state, that being the Commonwealth. With permission to refuse to allow the govts of the "independent colonies" to remove OUR RIGHTS WITHOUT OUR PERMISSION.
Wednesday, January 6, 2010
Background to the Commonwealth of Australia Constitution Act (UK) 1900
History
Original settlement in Australia was under military law, for the purpose of penal colonies. Gradually private settlement grew until by the mid 1800’s, 5 states were colonized – SA, QLD, NSW, Vic & Tas, with private settlement existing in WA under Crown Colonies.
In 1885, the Federal Council of Australasia was formed, consisting of Vic, Tas, QLD & SA , and included the Crown Colonies of WA & Fiji.
This Council dealt mainly with matters of trade between the various colonies. Constitutional Conventions began in the late 1880’s and the final referendum was held in June 1899.
After some changes were made by the British Parliament, The Commonwealth of Australia Constitution Act 1900 (UK) was passed on 5 July 1900 and given Royal Assent by Queen Victoria on 9 July 1900. On 1 January 1901 the Proclamation of the Commonwealth of Australia was held in Centennial Park, Sydney.
The new Act was an act of the British Parliament as well as ratification of the Constitution of Australia.
The Preamble to the Commonwealth of Australia Constitution Act 1900 (UK)
Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessings of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established; And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen; Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same…….
To Clarify
We must all remember that the words of the Preamble were carefully chosen after over 10 years of conventions, public discussion & referendums, so those words are vital to understand.
1. The People – not parliament or government or councils or public servants.
2. from NSW, VIC, SA, QLD & TAS – with the allowance of admitting other Australasian colonies (such as WA)
3. humbly – without pride
4. relying – depending and trusting
5. on the blessings – guardianship, protection and favour
6. of Almighty God – therefore the people included God in this agreement
7. agreed – came to a common consent and understanding
8. to unite – join together, make one, combine
9. under one – beneath a single
10. indissoluble – that which can not be dissolved, undone or destroyed
11. Federal – a league or compact between two or more states.
12. Commonwealth – where the states retain powers of self-government in respect to the states concerns, but form an integral part of a larger government or nation.
13. under the Crown – sovereign power in the monarchy, especially in relation to the punishment of crimes
14. of the United Kingdom & Ireland
15. and under the Constitution hereby established – the organic and fundamental law of a nation, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing and limiting the functions of its different departments and prescribing the extent and manner of the exercise of sovereign powers.
16. enacted – established by law and decree
17. by the Queens’s Most Excellent Majesty – Queen Victoria
18. and with the advice – opinion, instructions
19. and consent – agreement
20. of the Lords Spiritual – the archbishops and bishops who have seats in the house of lords
21. and Temporal – those lay person who have seats in the house of lords
22. and Commons – the class of subjects of Great Britain who are not members of the royal family and nobility, and are represented in the house of commons.
23. in this great parliament assembled – all of them together
24. and by the authority of the same – by the legal power, right to command of the whole parliament.
Put together….
The people of the five independent colonies, depending on the protection and favour of Almighty God, consented to join together beneath a single indestructible agreement, wherein the independent colonies joined together to form a combined government, still allowing for state concerns, with the Queen as the sovereign authority for crimes and the foundation laws of the Constitution providing the structure of the government.
A very simple, easily understood agreement.
Why is God in the Constitution?
The Queen is the head of the Church of England.
She holds our constitutional power.
The Oath of office taken by all politicians, which is a pledge to the Queen.
Every year before the start of the legal year, all justices and barristers go to church to uphold that part of their oath.
Common Law and The Crown
The Queen’s authority particularly lay in the matter of the punishment of crime using common law.
The ancestry of common law lies in the Ten Commandments and is the ancient unwritten law of England.
It is the principles and rules of action, relating to the security of persons and property.
It is not, has never been and can not be Roman law, modern civil law, canon law, maritime law, kangaroo law or any other system.
The Governor-General
Because the Queen did not reside in Australia, she placed her representative in the form of the Governor-General here.
His role was to approve any change to the Commonwealth of Australia Constitution Act 1900 (UK) in the form of a Referendum and/or a Law.
The difference between a Law and Legislation being that –
* a Bill is raised in the Lower House, debated and discussed. If passed, this bill goes to
* the Senate, which must cross-reference the bill with the Constitution to make sure the bill does not interfere with it in any way. Once approved the bill goes to the
* Governor-General for approval. He then stamps it with the Seal of the Crown.
* That Law cannot be amended or changed without the same process in place. Legislation however, is a matter of government decision-making and can change from day to day, as the government wishes.
In the event a person feels that the legislation has removed his Constitutional rights, he may take it to court.
The final arbiter being the High Court of Australia, who are charged with the protection of the Commonwealth of Australia Constitution.
Please note however, they are also the guardians of the State Constitutions.
Original settlement in Australia was under military law, for the purpose of penal colonies. Gradually private settlement grew until by the mid 1800’s, 5 states were colonized – SA, QLD, NSW, Vic & Tas, with private settlement existing in WA under Crown Colonies.
In 1885, the Federal Council of Australasia was formed, consisting of Vic, Tas, QLD & SA , and included the Crown Colonies of WA & Fiji.
This Council dealt mainly with matters of trade between the various colonies. Constitutional Conventions began in the late 1880’s and the final referendum was held in June 1899.
After some changes were made by the British Parliament, The Commonwealth of Australia Constitution Act 1900 (UK) was passed on 5 July 1900 and given Royal Assent by Queen Victoria on 9 July 1900. On 1 January 1901 the Proclamation of the Commonwealth of Australia was held in Centennial Park, Sydney.
The new Act was an act of the British Parliament as well as ratification of the Constitution of Australia.
The Preamble to the Commonwealth of Australia Constitution Act 1900 (UK)
Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessings of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established; And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen; Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same…….
To Clarify
We must all remember that the words of the Preamble were carefully chosen after over 10 years of conventions, public discussion & referendums, so those words are vital to understand.
1. The People – not parliament or government or councils or public servants.
2. from NSW, VIC, SA, QLD & TAS – with the allowance of admitting other Australasian colonies (such as WA)
3. humbly – without pride
4. relying – depending and trusting
5. on the blessings – guardianship, protection and favour
6. of Almighty God – therefore the people included God in this agreement
7. agreed – came to a common consent and understanding
8. to unite – join together, make one, combine
9. under one – beneath a single
10. indissoluble – that which can not be dissolved, undone or destroyed
11. Federal – a league or compact between two or more states.
12. Commonwealth – where the states retain powers of self-government in respect to the states concerns, but form an integral part of a larger government or nation.
13. under the Crown – sovereign power in the monarchy, especially in relation to the punishment of crimes
14. of the United Kingdom & Ireland
15. and under the Constitution hereby established – the organic and fundamental law of a nation, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing and limiting the functions of its different departments and prescribing the extent and manner of the exercise of sovereign powers.
16. enacted – established by law and decree
17. by the Queens’s Most Excellent Majesty – Queen Victoria
18. and with the advice – opinion, instructions
19. and consent – agreement
20. of the Lords Spiritual – the archbishops and bishops who have seats in the house of lords
21. and Temporal – those lay person who have seats in the house of lords
22. and Commons – the class of subjects of Great Britain who are not members of the royal family and nobility, and are represented in the house of commons.
23. in this great parliament assembled – all of them together
24. and by the authority of the same – by the legal power, right to command of the whole parliament.
Put together….
The people of the five independent colonies, depending on the protection and favour of Almighty God, consented to join together beneath a single indestructible agreement, wherein the independent colonies joined together to form a combined government, still allowing for state concerns, with the Queen as the sovereign authority for crimes and the foundation laws of the Constitution providing the structure of the government.
A very simple, easily understood agreement.
Why is God in the Constitution?
The Queen is the head of the Church of England.
She holds our constitutional power.
The Oath of office taken by all politicians, which is a pledge to the Queen.
Every year before the start of the legal year, all justices and barristers go to church to uphold that part of their oath.
Common Law and The Crown
The Queen’s authority particularly lay in the matter of the punishment of crime using common law.
The ancestry of common law lies in the Ten Commandments and is the ancient unwritten law of England.
It is the principles and rules of action, relating to the security of persons and property.
It is not, has never been and can not be Roman law, modern civil law, canon law, maritime law, kangaroo law or any other system.
The Governor-General
Because the Queen did not reside in Australia, she placed her representative in the form of the Governor-General here.
His role was to approve any change to the Commonwealth of Australia Constitution Act 1900 (UK) in the form of a Referendum and/or a Law.
The difference between a Law and Legislation being that –
* a Bill is raised in the Lower House, debated and discussed. If passed, this bill goes to
* the Senate, which must cross-reference the bill with the Constitution to make sure the bill does not interfere with it in any way. Once approved the bill goes to the
* Governor-General for approval. He then stamps it with the Seal of the Crown.
* That Law cannot be amended or changed without the same process in place. Legislation however, is a matter of government decision-making and can change from day to day, as the government wishes.
In the event a person feels that the legislation has removed his Constitutional rights, he may take it to court.
The final arbiter being the High Court of Australia, who are charged with the protection of the Commonwealth of Australia Constitution.
Please note however, they are also the guardians of the State Constitutions.
Wednesday, December 23, 2009
The Executive Government of Australia in 2009
The Australian Constitution is divided into “Jurisdictions” (i.e. parliament, executive, crown, judiciary)
Chapter 1 – The Parliament
Chapter II – the Executive
Chapter III – the Judicature
Govt have “read down” (ignored) Ch I & III.
They have found a loophole and “created” a new “constitution” out of Chapter II s61, s62 and s63. Hence the Australia Act 1986.
Thus – the Governor-General exercises the power of the Queen (61), under the advisement of the Federal Executive Council (62), therefore this provision of this constitution referring to him shall be construed as referring to him acting in advice (63).
In other words, the GG works in with the Executive to exercise the powers vested in him.
S63, therefore allows the Executive to assume the role of the Governor-General as Head of State.
This has created an entirely new jurisdiction INSIDE the Australian Constitution – the jurisdiction referred to by the High Court in several cases. Note: In most legislature “This Act binds the crown in each of its capacities”.
Remember, the Australian Constitution is STILL IN PLACE. This new structure operates like a cancer INSIDE the Aust Constitution.This new jurisdiction is known as the law of the body politic, or the law of public policy (e.g EPBC Act 1999, Local Govt Act 1995 & etc) .
It has allowed, over the previous 20 years, the dramatic amendments (parliamentary supremacy) to the Judiciary Act 1903 specifically during the Hawke/Keating years and more aggressively through the Howard years.
This jurisdiction (public policy) has the ability to create laws that remove, or weaken all and any provisions (Common law) normally found under the jurisdictions of Chapter 1 and 3 (remember they are being ignored).
The public policy jurisdiction (Statute law Miscellaneous Provisions) has its own Courts (Tribunals, or Committees), Rules of Court and employs a different type of public servant, that being a person, or authority in the service of the Government (assumed Crown) as differentiated from, in the service of the Crown.
In nearly all circumstances in the provisioning of statutory instruments made under this jurisdiction, the so called Government public servants attain the authority of “authorised officers” exercising similar powers to police officers (Crown employees) which include powers of search, power to obtain documents, power to demand answers to questions at a time and place of their choosing and the power to prosecute.
This jurisdiction operates WITHOUT restriction, or limitation. Nearly all the States, particularly Qld, make all law under this jurisdiction and there is absolutely no provision for cross-vesting between these two jurisdictions. Cross-vesting being the ability for a court to recognize both or either common law and/or civil law (ie. mercantile, admiralty).
In other words, this parliamentary supremacy has created a new form of law under public policy, new courts to administer that law and new public servants to police that form of law. The new courts do not have the ability to adjudicate under any form of common law, but at all times can only operate under civil law.
Who closes it down when govt finds a loophole – this time in the very structure of the governance of our country?
We, the people do!
Chapter 1 – The Parliament
Chapter II – the Executive
Chapter III – the Judicature
Govt have “read down” (ignored) Ch I & III.
They have found a loophole and “created” a new “constitution” out of Chapter II s61, s62 and s63. Hence the Australia Act 1986.
Thus – the Governor-General exercises the power of the Queen (61), under the advisement of the Federal Executive Council (62), therefore this provision of this constitution referring to him shall be construed as referring to him acting in advice (63).
In other words, the GG works in with the Executive to exercise the powers vested in him.
S63, therefore allows the Executive to assume the role of the Governor-General as Head of State.
This has created an entirely new jurisdiction INSIDE the Australian Constitution – the jurisdiction referred to by the High Court in several cases. Note: In most legislature “This Act binds the crown in each of its capacities”.
Remember, the Australian Constitution is STILL IN PLACE. This new structure operates like a cancer INSIDE the Aust Constitution.This new jurisdiction is known as the law of the body politic, or the law of public policy (e.g EPBC Act 1999, Local Govt Act 1995 & etc) .
It has allowed, over the previous 20 years, the dramatic amendments (parliamentary supremacy) to the Judiciary Act 1903 specifically during the Hawke/Keating years and more aggressively through the Howard years.
This jurisdiction (public policy) has the ability to create laws that remove, or weaken all and any provisions (Common law) normally found under the jurisdictions of Chapter 1 and 3 (remember they are being ignored).
The public policy jurisdiction (Statute law Miscellaneous Provisions) has its own Courts (Tribunals, or Committees), Rules of Court and employs a different type of public servant, that being a person, or authority in the service of the Government (assumed Crown) as differentiated from, in the service of the Crown.
In nearly all circumstances in the provisioning of statutory instruments made under this jurisdiction, the so called Government public servants attain the authority of “authorised officers” exercising similar powers to police officers (Crown employees) which include powers of search, power to obtain documents, power to demand answers to questions at a time and place of their choosing and the power to prosecute.
This jurisdiction operates WITHOUT restriction, or limitation. Nearly all the States, particularly Qld, make all law under this jurisdiction and there is absolutely no provision for cross-vesting between these two jurisdictions. Cross-vesting being the ability for a court to recognize both or either common law and/or civil law (ie. mercantile, admiralty).
In other words, this parliamentary supremacy has created a new form of law under public policy, new courts to administer that law and new public servants to police that form of law. The new courts do not have the ability to adjudicate under any form of common law, but at all times can only operate under civil law.
Let’s make this even simpler to understand.
Look at your body, it operates under the laws of nature, thriving with the proper food, liquid, exercise. Natural rights each of us are entitled to.
A cancer creeps in, finds a home in a portion of your body and proceeds to build its own structure. With the end aim of taking over & perhaps killing you.
There is nothing illegal about this cancer, it comes from your own body, feeds from your own body, but it is against the law of nature as it creates its own kingdom INSIDE your body, taking over your right to health.
Look at your body, it operates under the laws of nature, thriving with the proper food, liquid, exercise. Natural rights each of us are entitled to.
A cancer creeps in, finds a home in a portion of your body and proceeds to build its own structure. With the end aim of taking over & perhaps killing you.
There is nothing illegal about this cancer, it comes from your own body, feeds from your own body, but it is against the law of nature as it creates its own kingdom INSIDE your body, taking over your right to health.
Now we constantly hear reference to tax loopholes – usually found by the wealthy with the assistance of high-priced lawyers. Govt get wind of these loopholes and close them.
Government have simply found a loophole in the Constitution – except it is a loophole that is turning the people of Australia into slaves, with no personal liberties, no right of ownership and no ability to protect themselves legally.
Government have simply found a loophole in the Constitution – except it is a loophole that is turning the people of Australia into slaves, with no personal liberties, no right of ownership and no ability to protect themselves legally.
Who closes it down when govt finds a loophole – this time in the very structure of the governance of our country?
We, the people do!
This is what govt have been working to create since possibly the inception of the Australian Constitution 1900. The Framers of the Constitution are quoted in the Commentaries on the Constitution of the Commonwealth of Australia by Sir Robert Garran (1867 - 1957) - It was the great ambition of the framers of the Australian Constitutions of 1855–6 to acclimatize, in the colonies which they were then helping to found, the system thus known as Responsible Government.
This brings us to a review of some of the objections which have been raised to the application of the Cabinet system of Executive Government to a federation. These objections have been formulated with great ability and sustained with force and earnestness by several Australian federalists of eminence, among whom may be mentioned the names of Sir Samuel Griffith, Sir Richard C. Baker, Sir John Cockburn, Mr. Justice Inglis Clark, and Mr. G. W. Hackett, who have taken the view that the Cabinet system of Executive is incompatible with a true Federation. (See “The Executive in a Federation,” by Sir Richard C. Baker, K.C.M.G., p.l.)
In support of this contention it is argued that, in a Federation, it is a fundamental rule that no new law shall be passed and no old law shall be altered without the consent of (1) a majority of the people speaking by their representatives in one House, and (2) a majority of the States speaking by their representatives in the other house; that the same principle of State approval as well as popular approval should apply to Executive action, as well as to legislative action; that the State should not be forced to support Executive policy and Executive acts merely because ministers enjoyed the confidence of the popular Chamber; that the State House would be justified in withdrawing its support from a ministry of whose policy and executive acts it disapproved; that the State House could, as effectually as the primary Chamber, enforce its want of confidence by refusing to provide the necessary supplies. The Senate of the French Republic, it is pointed out, has established a precedent showing how an Upper House can enforce its opinions and cause a change of ministry. On these grounds it is contended that the introduction of the Cabinet system of Responsible Government into a Federation, in which the relations of two branches of the legislature, having equal and co-ordinate authority, are quite different from those existing in a single autonomous State, is repugnant to the spirit and intention of a scheme of Federal Government. In the end it is predicted that either Responsible Government will kill the Federation and change it into a unified State, or the Federation will kill Responsible Government and substitute a new form of Executive more compatible with the Federal theory. In particular, strong objection is taken to the insertion in the Constitution of a cast-iron condition that Federal Ministers must be members of Parliament. Membership of Parliament, it is argued, is not of the essence of Responsible Government, but only an incident or an accidental feature, which has been introduced by modern practice and by statutory innovation.
This brings us to a review of some of the objections which have been raised to the application of the Cabinet system of Executive Government to a federation. These objections have been formulated with great ability and sustained with force and earnestness by several Australian federalists of eminence, among whom may be mentioned the names of Sir Samuel Griffith, Sir Richard C. Baker, Sir John Cockburn, Mr. Justice Inglis Clark, and Mr. G. W. Hackett, who have taken the view that the Cabinet system of Executive is incompatible with a true Federation. (See “The Executive in a Federation,” by Sir Richard C. Baker, K.C.M.G., p.l.)
In support of this contention it is argued that, in a Federation, it is a fundamental rule that no new law shall be passed and no old law shall be altered without the consent of (1) a majority of the people speaking by their representatives in one House, and (2) a majority of the States speaking by their representatives in the other house; that the same principle of State approval as well as popular approval should apply to Executive action, as well as to legislative action; that the State should not be forced to support Executive policy and Executive acts merely because ministers enjoyed the confidence of the popular Chamber; that the State House would be justified in withdrawing its support from a ministry of whose policy and executive acts it disapproved; that the State House could, as effectually as the primary Chamber, enforce its want of confidence by refusing to provide the necessary supplies. The Senate of the French Republic, it is pointed out, has established a precedent showing how an Upper House can enforce its opinions and cause a change of ministry. On these grounds it is contended that the introduction of the Cabinet system of Responsible Government into a Federation, in which the relations of two branches of the legislature, having equal and co-ordinate authority, are quite different from those existing in a single autonomous State, is repugnant to the spirit and intention of a scheme of Federal Government. In the end it is predicted that either Responsible Government will kill the Federation and change it into a unified State, or the Federation will kill Responsible Government and substitute a new form of Executive more compatible with the Federal theory. In particular, strong objection is taken to the insertion in the Constitution of a cast-iron condition that Federal Ministers must be members of Parliament. Membership of Parliament, it is argued, is not of the essence of Responsible Government, but only an incident or an accidental feature, which has been introduced by modern practice and by statutory innovation.
Sunday, December 6, 2009
High Court Rulings on Trespass
In Robson v Hallett [1967] 2 QB 939, Lord Parker CJ said (at 951):
"the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house." This implied licence extends to the driveway of a dwelling-house. However, the licence may be withdrawn by giving notice of its withdrawal. A person who enters or remains on property after the withdrawal of the licence is a trespasser.”
A sign at your front entrance clearly indicates that you do not give permission unless by invitation therefore entry is prohibited. Information from QLD has indicated that the police will enter through an open gate regardless of the sign, but cannot open one. Therefore, keep your gates closed. Police have also indicated that they cannot deliver a summons past a proper Trespass sign unless a felony has been committed under the Crimes Act and a warrant issued.
“The very limited nature of a constable's right to enter private property for the purpose of arrest is by itself a compelling argument for holding that, without making major changes to the law, the common law cannot logically recognise the service of a summons as a ground for entering premises against the will of the occupier. It would be incongruous for the common law to permit entry for the purpose of arrest in a few cases only but to permit entry for the purpose of serving a summons in every case whatsoever.”
Lord Edmund-Davis in Morris v Beardmore stated: “If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official.”
Every Australian Parliamentary Act now states that, under that Act, public officials may enter your property for the purposes of that Act.
I firmly believe that is not true, given the previous quotes. Here are notes from the 6 major Australian High Court Trespass cases we use to define our rights in this area.
And remember, Lord Coke’s quote “Common Law doth control Acts of parliament and adjudges them when against Common Right to be void.”
HALLIDAY v NEVILL [1984] HCA 80; (1984) 155 CLR 1 (6 December 1984)
Police noticed an unregistered driver back out of his driveway. When approached he ran back onto his property, the police entered and arrested him. The police were found to have trespassed and the Police appeal was dismissed with costs, in the High Court.
BRENNAN J. “This case is about privacy in the home, the garden and the yard. It is about the lawfulness of police entering on private premises without asking for permission. It is a contest between public authority and the security of private dwellings.”Notes from the case: “While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact…….The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.
“The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.”
GEORGE v ROCKETT [1990] HCA 26; (1990) 170 CLR 104 (20 June 1990)
Warrant was issued to the Police, to enter premises and investigate information in documents which were in a solicitor’s office. The solicitor appealed to the High Court, the warrant was found to be invalid, and he won the case with costs.
“It is the duty of a justice before issuing….a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing the respective matters mentioned in S711 of the Criminal code and that those grounds are reasonable.”
“What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question of whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.”
“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce a state of mind in a reasonable person.”
In Feathers v Rogers, Justice Simpson stated that the complaint must exist as a sworn oath, otherwise the statements made in the complaint are immaterial. A sworn oath would be in an affidavit form verified by oath or affirmation.
Suspicion without proof is not enough for a warrant to be issued.
PLENTY v DILLON [1991] HCA 5; (1991) 171 CLR 635 F.C. 91/004 (7 March 1991)
Police entered a rural property to issue a summons. The owner told them to leave, a scuffle ensued, the owner was arrested for assault. His appeal to the High court won with costs for damages against the 2 constables.
“Common law authority tends against (allowing for entry re delivery of a summons when entry) has been forbidden by the person in possession and entitled to possession thereof.”
“Next, it is submitted that the statutory power to serve a summons, either personally or non-personally, carries with it the right to make such entry on land as is necessary to effect service…..The grounds to justify to this fail. Police entry was wrongful.”
“Serving a summons is not an ‘execution under the process of any court of justice’; it is simply the commencement of the process.”“It would be incongruous for the common law to permit entry for the purpose of arrest in a few cases only but to permit entry for the purpose of serving a summons in every case whatsoever.”
· NSW v IBBETT [2006] HCA 57; (2006) 231 ALR 485; (2006) 81 ALJR 427 (12 December 2006)
Police entered the home of a lady, chasing her son. Weapons and threats were used by the police. Mrs Ibbett was awarded exemplary damages against the police involved. The Police appealed and lost with costs.
‘It is well established that the tort protects the interest of the plaintiff in maintaining the right to exclusive possession of her place of residence, free from uninvited physical intrusion by strangers.”
“The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government.”
Lord Devlin in Huckle v Money stated: “the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service.”
KURU v STATE OF NSW [2008] HCA 26 (12 June 2008)
The police were called to a domestic dispute. The woman had gone to her family and after police checked by phone on her safety, the man asked them to leave several times. An altercation ensued, the man was arrested. He appealed the arrest and his appeal was upheld with costs against the police.
After the man had asked the police to leave…”there was neither statutory nor common law justification for the police remaining on the appellant’s premises.”
S 357F Crimes Act 1900 (NSW)(3) Except as provided in subsection (4), a member of the police force may not enter or remain in a swelling-house by reason only of an invitation given as referred to in subsection (2) if authority to so enter or remain is expressly refused by an occupier of the dwelling-house and the member of the police force is not so otherwise authorizes (whether under this or any other Act or at common law) to so enter or remain.
The case hinged on 3 facts:
1. an occupier of the dwelling-house had invited the police to “look around’ the flat
2. an occupier of the dwelling-house had then asked the police to leave
3. the police officer did not leave and remained on the premises for longer than it would reasonably have taken them to leave.
“Regs 8 and 9 of the Police Regulations 2000 (NSW), coupled with ss6 and 201 of the Police Act, prescribes a form of oath or affirmation to be taken by a police officer under s13 of the Police Act. The prescribed for of oath or affirmation contained a promise to ‘cause Her Majesty’ peace to be kept and preserved……s201 of the Police Act made it an offence to neglect or refuse to carry out any lawful duty as a police officer.”
COMMONWEALTH v NSW [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923)
This case was not about trespass but verifies many of the ownership rights on Fee Simple land.
Remember in a previous post, I gave details of the 4 elements of ownership that are carried in a Fee Simple Title Deed.
1. tenements
2. messuages
3. corporeal hereditaments
4. incorporeal hereditaments
First we must remember that many words have different legal words or had different original meanings to our current understanding.
Therefore, the word Tenement in 1. does not mean a hovel, shacks, etc. In a narrow sense it simply means buildings, however, in the broader sense as attached to a Fee Simple Grant, it means not only the land, but everything of a permanent & solid nature attached to the land, so the buildings, the rents, the leases, etc.
In 2. Messuages is a term for dwelling house. In essence this ownership right is permission to build and live on the land.
At 3. & 4. we come to the Hereditaments. These are things capable of being inherited, including not only the land, but everything thereon.
Corporeal Hereditaments are the tangible/physical elements of that inheritance. According to Blackstone’s Commentaries on English Law 1765 (still used in the High Court of Australia today): ”This consists of substantial and permanent elements of the land – the ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includes buildings, as they use the land as their foundation. Water cannot be owned, but the land which holds it can. In its legal significance, land has an indefinite extent both upwards and downwards to the centre of the earth.”
Incorporeal Hereditaments are the intangible elements of that inheritance. This is a right issuing from the physical element of land, such as rent, incomes from an enterprise on the land. They are a right to have an idea that will become physical on the land, ie to develop a business and produce an income. An incorporeal hereditament is the things we do with our land including waste it.
Now in the case we are discussing, the dispute was between the State of NSW and the Federal Government over mining land, which the Federal Government were resuming. The State wanted full compensation.
As the dispute was about mining, many comments were made about the minerals under the surface of the ground. All of the following quotes from this case cover the facts stated in Corporeal Hereditaments, that we own all the natural elements of our land from the top of the sky to the centre of the earth.
“…..”land the property of a State” covers the whole soil from the surface to the centre and everything which is physically incorporated in it including the Royal metals.”
“The power given by s13 Land Acquisition Act is to acquire ‘land’, and prima facie that means to acquire the soil from the surface to the centre.”
“….by its definition of the word ‘land’, enables the Commonwealth to acquire interests in, or rights, powers or privileges over, land as well as land in its ordinary meaning, namely, ‘that in respect of which you have a right from the centre of the earth to the heaven above.”
“As a natural fact, gold and silver, neither more nor less than copper or tin or platinum or clay or oil, are part of the concrete physical mass, commencing at the surface of the earth and extending downwards to the centre of the earth, which is called ‘land.’”“….trees growing on the land are, according to the received legal definition of ‘land’, regarded as part of it.,,” unless reserved to the Crown.
When resuming land…..”the full contents of the parcel of land pass; the ’land’ being measured superficially by metres and bounds and extending actually downward indefinitely and notionally upward indefinitely, is that which is ‘passing to the Commonwealth’ “ when the resumption occurs.
Many properties are now faced with Mining companies assessing the land for the minerals under the soil. Once miners had to pay full royalties for whatever they found in your land. Since the 1950’s approx, the government restricted that to the top 6 inches.
Did the government have a Letters Patent to re-enter our land in this manner and reduce our income from our land? In effect, they removed part of our Incorporeal Hereditaments – a right sold to us by the King/Queen who reserved the mineral rights, it is true, but not any royalty income via a depth in the soil. And this has led most people to believe they only purchase the top 6 inches of the soil. Not true. Absolutely not true. And clearly verified by this High Court case, which is still current in Australian law, being a CLR case – law precedent case.
1923 confirms the rights in our Fee Simple title.
When we purchase the land, the Crown guarantees that we buy that land free and clear Remember that the Abolition of Tenures Act 1660 & the Imperial Acts Application Act 1969 - SECT 36 both confirmed that we take on no debt through the purchase of the land. This case now tells us how the Commonwealth Government do resume the land free and clear also.
“…the lands have vested in the Commonwealth for an absolute and unconditionable estate in fee simple freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of NSW.”
“…and be freed and discharged from all trusts, obligations; estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident to…..”
“The word ‘land’ is, and has been….defined by S5 of the Lands Acquisition Act as including ‘any estate or interest’ in land – legal or equitable – and any easement, right, power, or privilege over, in, or in connection with land…”
“No implied limitation can be placed on the fullest meaning that can be given to the word ‘property’ in s51(xxxi) and s85 of the Australian Constitution.”
“s22 Acts Interpretation Act 1901…so as to include ‘messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein’ and ‘estate’ to include ‘any estate or interest, charge, right, title, claim, demand, lien or incumbrance at law or in equity’….”
“…sec 16(1) of the Act applies: so that the land decribed in the notifications became vested in the Commonwealth ‘freed and discharged from all trusts, obligations, estates, interestes, contracts, licences, charges, rates and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth.”
“….S17 (of the Act)includes not only the corporeal land but every interest therein, and any easement, right, power or privilege over, in or in connection with that land.”“From Challis’s Real Property, 3rd ed., p218, it is stated with perfect accuracy (remember these are the words of a High Court Justice); ‘In the language of the English law, the word fee signifies an estate of inheritance as distinguished from a less estate; ….A fee simple is the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law. It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination, including the right to commit unlimited waste; and for all practical purposes of ownership, it differs from the absolute dominion of a chattel, in nothing except the physical indestructibility of its subject. Besides these rights of ownership, a fee simple at the present day confers absolute right, both of alienation by inter vivos and of devise by will.”
1923 clarifies where a Torrens Title registration affects our ownership.
“Real Property Act 1900 provides by s13, as follows: (1) All waste lands……when alienated in fee, be subject to the provisions of this Act. (2) the grants of such land shall be in duplicate, and every such grant, in addition to proper words of description, shall contain a diagram of the land thereby granted on such scale as the Governor directs, and shall be delivered to the Registrar-General, who shall register the same in manner hereinafter directed.”
“It will be observed that it is only when land in this class is ‘alienated in fee’ by the Crown that it becomes subject to the provisions of the Act………Unless there has been an alienation by Crown grant of an estate in fee simple, the Registrar-General is no authorized by the real Property Act to take any step in the direction of registration or bringing the land under the Act, or issuing a certificate of title thereto. Unless……there is nothing which the Act authorizes the Registrar-General to enter in the register-book and against which he can record any instrument, dealing, or matter affecting such land.”
“His action is a State service, not an individual service.”
1923 clarifies Compensation is a Commonwealth issue.
“s27 Land Acquisition Act 1906, it is provided that where any Crown land is acquired by compulsory process the State shall be entitled to compensation, to be estimated as if the State were the proprietor of an estate in fee Simple.”
“Clearly, since the Lands Acquisition Act 1906 was passed under the power granted in s51(xxxi) of the Constitution, any ‘property’ specified in the statute may be taken provided “just terms” are available by law. Clearly also the same results must follow in the case of land taken compulsorily under the statute as in the case of the Constitution. The Constitution suo vigore passes instanter on the transfer of the ‘Departments’ the property used in connection therewith; the statute, under constitutional authority, passes, when its conditions are satisfied, the property taken for the ‘purposes’ indicated. The result, however, must in each case be the same, because in each case the Constitution is the ultimate basis of title.” “here we deal with….a Constitution distributing property and powers between different organs of the King’s government.”
“Where any land (other than Crown land) is acquired by compulsory process, the owner of the land shall, if deprived of the land in whole or in part, be entitled to compensation under this Act (Land Acquisition Act 1906).”“17 sub-section2 says: the compensation shall be estimated as if the State were the proprietor of an estate in fee simple in the land, subject to any estate or interest which any person had in the land at the time of its acquisition by the Commonwealth.”
‘s5, Interpretations, Lands Acquisition Act 1906, the word ‘owner’ includes, with respect to the land, ‘any person who under this Act is enabled to sell or convey the land to the Commonwealth’; and ‘land’ includes any estate or interest in land (legal or equitable) and any easement, right, power or privilege over, in or in connection with land. The owners of such outside interest appear to be entitled to all costs, charges and expenses of all conveyances and assurances of the interests (s61 (1)(a)); and this right would be anomalous if such owners were not also entitled to compensation.”
Dictionary of Important Words
Legal definition of Implied – where circumstances and not words appear to create an intention.
Legal definition of Tort – A legal wrong committed upon a person or property, ie trespass, theft, etc
Legal definition of Statutory – A legislatory act, enacted and established by the will of the government of the day.Legal definition of Common Law – Not modern civil law – comes from Anglo-Saxon times – relates to government, security of person and property, deriving from ancient usages and customs – fixed and immutable rules and principles. The background to Common Law is biblical principles.
Legal definition of Interest – General term denoting property in land or chattels. Particularly any right in the nature of property, but less than the title; a partial or undivided right; a title to share.
Legal definition of Alienation – Transfer of property and possessions of lands, tenements, or other things from one person to another. Absolute conveyance of real property.
Legal definition of Inter vivos – Latin: refers to property transfers between living persons, as opposed to inheritance
Legal definition of Devise by will – A gift of real property by will, by inheritance.
Legal definition of Suo vigore – Latin: energy, vigour
Legal definition of Instanter – presently to, upon
Definition of reservations, royalties, conditions, obligations, trusts, contracts, licences, charges, rates, title, claim, demand, lien or incumbrance at law or in equity’, to the intent that the legal estate therein, together with all rights and powers, every interest therein, and any easement, power or privilege over, in or in connection with that land – all the words used to convey those elements that the Grant in Fee Simple title is free from on alienation.
This is how we purchase our land from the King/Queen, this is how the Commonwealth resume land from private ownership and the States’ control.
"the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house." This implied licence extends to the driveway of a dwelling-house. However, the licence may be withdrawn by giving notice of its withdrawal. A person who enters or remains on property after the withdrawal of the licence is a trespasser.”
A sign at your front entrance clearly indicates that you do not give permission unless by invitation therefore entry is prohibited. Information from QLD has indicated that the police will enter through an open gate regardless of the sign, but cannot open one. Therefore, keep your gates closed. Police have also indicated that they cannot deliver a summons past a proper Trespass sign unless a felony has been committed under the Crimes Act and a warrant issued.
“The very limited nature of a constable's right to enter private property for the purpose of arrest is by itself a compelling argument for holding that, without making major changes to the law, the common law cannot logically recognise the service of a summons as a ground for entering premises against the will of the occupier. It would be incongruous for the common law to permit entry for the purpose of arrest in a few cases only but to permit entry for the purpose of serving a summons in every case whatsoever.”
Lord Edmund-Davis in Morris v Beardmore stated: “If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official.”
Every Australian Parliamentary Act now states that, under that Act, public officials may enter your property for the purposes of that Act.
I firmly believe that is not true, given the previous quotes. Here are notes from the 6 major Australian High Court Trespass cases we use to define our rights in this area.
And remember, Lord Coke’s quote “Common Law doth control Acts of parliament and adjudges them when against Common Right to be void.”
HALLIDAY v NEVILL [1984] HCA 80; (1984) 155 CLR 1 (6 December 1984)
Police noticed an unregistered driver back out of his driveway. When approached he ran back onto his property, the police entered and arrested him. The police were found to have trespassed and the Police appeal was dismissed with costs, in the High Court.
BRENNAN J. “This case is about privacy in the home, the garden and the yard. It is about the lawfulness of police entering on private premises without asking for permission. It is a contest between public authority and the security of private dwellings.”Notes from the case: “While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact…….The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.
“The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.”
GEORGE v ROCKETT [1990] HCA 26; (1990) 170 CLR 104 (20 June 1990)
Warrant was issued to the Police, to enter premises and investigate information in documents which were in a solicitor’s office. The solicitor appealed to the High Court, the warrant was found to be invalid, and he won the case with costs.
“It is the duty of a justice before issuing….a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing the respective matters mentioned in S711 of the Criminal code and that those grounds are reasonable.”
“What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question of whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.”
“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce a state of mind in a reasonable person.”
In Feathers v Rogers, Justice Simpson stated that the complaint must exist as a sworn oath, otherwise the statements made in the complaint are immaterial. A sworn oath would be in an affidavit form verified by oath or affirmation.
Suspicion without proof is not enough for a warrant to be issued.
PLENTY v DILLON [1991] HCA 5; (1991) 171 CLR 635 F.C. 91/004 (7 March 1991)
Police entered a rural property to issue a summons. The owner told them to leave, a scuffle ensued, the owner was arrested for assault. His appeal to the High court won with costs for damages against the 2 constables.
“Common law authority tends against (allowing for entry re delivery of a summons when entry) has been forbidden by the person in possession and entitled to possession thereof.”
“Next, it is submitted that the statutory power to serve a summons, either personally or non-personally, carries with it the right to make such entry on land as is necessary to effect service…..The grounds to justify to this fail. Police entry was wrongful.”
“Serving a summons is not an ‘execution under the process of any court of justice’; it is simply the commencement of the process.”“It would be incongruous for the common law to permit entry for the purpose of arrest in a few cases only but to permit entry for the purpose of serving a summons in every case whatsoever.”
· NSW v IBBETT [2006] HCA 57; (2006) 231 ALR 485; (2006) 81 ALJR 427 (12 December 2006)
Police entered the home of a lady, chasing her son. Weapons and threats were used by the police. Mrs Ibbett was awarded exemplary damages against the police involved. The Police appealed and lost with costs.
‘It is well established that the tort protects the interest of the plaintiff in maintaining the right to exclusive possession of her place of residence, free from uninvited physical intrusion by strangers.”
“The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government.”
Lord Devlin in Huckle v Money stated: “the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service.”
KURU v STATE OF NSW [2008] HCA 26 (12 June 2008)
The police were called to a domestic dispute. The woman had gone to her family and after police checked by phone on her safety, the man asked them to leave several times. An altercation ensued, the man was arrested. He appealed the arrest and his appeal was upheld with costs against the police.
After the man had asked the police to leave…”there was neither statutory nor common law justification for the police remaining on the appellant’s premises.”
S 357F Crimes Act 1900 (NSW)(3) Except as provided in subsection (4), a member of the police force may not enter or remain in a swelling-house by reason only of an invitation given as referred to in subsection (2) if authority to so enter or remain is expressly refused by an occupier of the dwelling-house and the member of the police force is not so otherwise authorizes (whether under this or any other Act or at common law) to so enter or remain.
The case hinged on 3 facts:
1. an occupier of the dwelling-house had invited the police to “look around’ the flat
2. an occupier of the dwelling-house had then asked the police to leave
3. the police officer did not leave and remained on the premises for longer than it would reasonably have taken them to leave.
“Regs 8 and 9 of the Police Regulations 2000 (NSW), coupled with ss6 and 201 of the Police Act, prescribes a form of oath or affirmation to be taken by a police officer under s13 of the Police Act. The prescribed for of oath or affirmation contained a promise to ‘cause Her Majesty’ peace to be kept and preserved……s201 of the Police Act made it an offence to neglect or refuse to carry out any lawful duty as a police officer.”
COMMONWEALTH v NSW [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923)
This case was not about trespass but verifies many of the ownership rights on Fee Simple land.
Remember in a previous post, I gave details of the 4 elements of ownership that are carried in a Fee Simple Title Deed.
1. tenements
2. messuages
3. corporeal hereditaments
4. incorporeal hereditaments
First we must remember that many words have different legal words or had different original meanings to our current understanding.
Therefore, the word Tenement in 1. does not mean a hovel, shacks, etc. In a narrow sense it simply means buildings, however, in the broader sense as attached to a Fee Simple Grant, it means not only the land, but everything of a permanent & solid nature attached to the land, so the buildings, the rents, the leases, etc.
In 2. Messuages is a term for dwelling house. In essence this ownership right is permission to build and live on the land.
At 3. & 4. we come to the Hereditaments. These are things capable of being inherited, including not only the land, but everything thereon.
Corporeal Hereditaments are the tangible/physical elements of that inheritance. According to Blackstone’s Commentaries on English Law 1765 (still used in the High Court of Australia today): ”This consists of substantial and permanent elements of the land – the ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includes buildings, as they use the land as their foundation. Water cannot be owned, but the land which holds it can. In its legal significance, land has an indefinite extent both upwards and downwards to the centre of the earth.”
Incorporeal Hereditaments are the intangible elements of that inheritance. This is a right issuing from the physical element of land, such as rent, incomes from an enterprise on the land. They are a right to have an idea that will become physical on the land, ie to develop a business and produce an income. An incorporeal hereditament is the things we do with our land including waste it.
Now in the case we are discussing, the dispute was between the State of NSW and the Federal Government over mining land, which the Federal Government were resuming. The State wanted full compensation.
As the dispute was about mining, many comments were made about the minerals under the surface of the ground. All of the following quotes from this case cover the facts stated in Corporeal Hereditaments, that we own all the natural elements of our land from the top of the sky to the centre of the earth.
“…..”land the property of a State” covers the whole soil from the surface to the centre and everything which is physically incorporated in it including the Royal metals.”
“The power given by s13 Land Acquisition Act is to acquire ‘land’, and prima facie that means to acquire the soil from the surface to the centre.”
“….by its definition of the word ‘land’, enables the Commonwealth to acquire interests in, or rights, powers or privileges over, land as well as land in its ordinary meaning, namely, ‘that in respect of which you have a right from the centre of the earth to the heaven above.”
“As a natural fact, gold and silver, neither more nor less than copper or tin or platinum or clay or oil, are part of the concrete physical mass, commencing at the surface of the earth and extending downwards to the centre of the earth, which is called ‘land.’”“….trees growing on the land are, according to the received legal definition of ‘land’, regarded as part of it.,,” unless reserved to the Crown.
When resuming land…..”the full contents of the parcel of land pass; the ’land’ being measured superficially by metres and bounds and extending actually downward indefinitely and notionally upward indefinitely, is that which is ‘passing to the Commonwealth’ “ when the resumption occurs.
Many properties are now faced with Mining companies assessing the land for the minerals under the soil. Once miners had to pay full royalties for whatever they found in your land. Since the 1950’s approx, the government restricted that to the top 6 inches.
Did the government have a Letters Patent to re-enter our land in this manner and reduce our income from our land? In effect, they removed part of our Incorporeal Hereditaments – a right sold to us by the King/Queen who reserved the mineral rights, it is true, but not any royalty income via a depth in the soil. And this has led most people to believe they only purchase the top 6 inches of the soil. Not true. Absolutely not true. And clearly verified by this High Court case, which is still current in Australian law, being a CLR case – law precedent case.
1923 confirms the rights in our Fee Simple title.
When we purchase the land, the Crown guarantees that we buy that land free and clear Remember that the Abolition of Tenures Act 1660 & the Imperial Acts Application Act 1969 - SECT 36 both confirmed that we take on no debt through the purchase of the land. This case now tells us how the Commonwealth Government do resume the land free and clear also.
“…the lands have vested in the Commonwealth for an absolute and unconditionable estate in fee simple freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of NSW.”
“…and be freed and discharged from all trusts, obligations; estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident to…..”
“The word ‘land’ is, and has been….defined by S5 of the Lands Acquisition Act as including ‘any estate or interest’ in land – legal or equitable – and any easement, right, power, or privilege over, in, or in connection with land…”
“No implied limitation can be placed on the fullest meaning that can be given to the word ‘property’ in s51(xxxi) and s85 of the Australian Constitution.”
“s22 Acts Interpretation Act 1901…so as to include ‘messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein’ and ‘estate’ to include ‘any estate or interest, charge, right, title, claim, demand, lien or incumbrance at law or in equity’….”
“…sec 16(1) of the Act applies: so that the land decribed in the notifications became vested in the Commonwealth ‘freed and discharged from all trusts, obligations, estates, interestes, contracts, licences, charges, rates and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth.”
“….S17 (of the Act)includes not only the corporeal land but every interest therein, and any easement, right, power or privilege over, in or in connection with that land.”“From Challis’s Real Property, 3rd ed., p218, it is stated with perfect accuracy (remember these are the words of a High Court Justice); ‘In the language of the English law, the word fee signifies an estate of inheritance as distinguished from a less estate; ….A fee simple is the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law. It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination, including the right to commit unlimited waste; and for all practical purposes of ownership, it differs from the absolute dominion of a chattel, in nothing except the physical indestructibility of its subject. Besides these rights of ownership, a fee simple at the present day confers absolute right, both of alienation by inter vivos and of devise by will.”
1923 clarifies where a Torrens Title registration affects our ownership.
“Real Property Act 1900 provides by s13, as follows: (1) All waste lands……when alienated in fee, be subject to the provisions of this Act. (2) the grants of such land shall be in duplicate, and every such grant, in addition to proper words of description, shall contain a diagram of the land thereby granted on such scale as the Governor directs, and shall be delivered to the Registrar-General, who shall register the same in manner hereinafter directed.”
“It will be observed that it is only when land in this class is ‘alienated in fee’ by the Crown that it becomes subject to the provisions of the Act………Unless there has been an alienation by Crown grant of an estate in fee simple, the Registrar-General is no authorized by the real Property Act to take any step in the direction of registration or bringing the land under the Act, or issuing a certificate of title thereto. Unless……there is nothing which the Act authorizes the Registrar-General to enter in the register-book and against which he can record any instrument, dealing, or matter affecting such land.”
“His action is a State service, not an individual service.”
1923 clarifies Compensation is a Commonwealth issue.
“s27 Land Acquisition Act 1906, it is provided that where any Crown land is acquired by compulsory process the State shall be entitled to compensation, to be estimated as if the State were the proprietor of an estate in fee Simple.”
“Clearly, since the Lands Acquisition Act 1906 was passed under the power granted in s51(xxxi) of the Constitution, any ‘property’ specified in the statute may be taken provided “just terms” are available by law. Clearly also the same results must follow in the case of land taken compulsorily under the statute as in the case of the Constitution. The Constitution suo vigore passes instanter on the transfer of the ‘Departments’ the property used in connection therewith; the statute, under constitutional authority, passes, when its conditions are satisfied, the property taken for the ‘purposes’ indicated. The result, however, must in each case be the same, because in each case the Constitution is the ultimate basis of title.” “here we deal with….a Constitution distributing property and powers between different organs of the King’s government.”
“Where any land (other than Crown land) is acquired by compulsory process, the owner of the land shall, if deprived of the land in whole or in part, be entitled to compensation under this Act (Land Acquisition Act 1906).”“17 sub-section2 says: the compensation shall be estimated as if the State were the proprietor of an estate in fee simple in the land, subject to any estate or interest which any person had in the land at the time of its acquisition by the Commonwealth.”
‘s5, Interpretations, Lands Acquisition Act 1906, the word ‘owner’ includes, with respect to the land, ‘any person who under this Act is enabled to sell or convey the land to the Commonwealth’; and ‘land’ includes any estate or interest in land (legal or equitable) and any easement, right, power or privilege over, in or in connection with land. The owners of such outside interest appear to be entitled to all costs, charges and expenses of all conveyances and assurances of the interests (s61 (1)(a)); and this right would be anomalous if such owners were not also entitled to compensation.”
Dictionary of Important Words
Legal definition of Implied – where circumstances and not words appear to create an intention.
Legal definition of Tort – A legal wrong committed upon a person or property, ie trespass, theft, etc
Legal definition of Statutory – A legislatory act, enacted and established by the will of the government of the day.Legal definition of Common Law – Not modern civil law – comes from Anglo-Saxon times – relates to government, security of person and property, deriving from ancient usages and customs – fixed and immutable rules and principles. The background to Common Law is biblical principles.
Legal definition of Interest – General term denoting property in land or chattels. Particularly any right in the nature of property, but less than the title; a partial or undivided right; a title to share.
Legal definition of Alienation – Transfer of property and possessions of lands, tenements, or other things from one person to another. Absolute conveyance of real property.
Legal definition of Inter vivos – Latin: refers to property transfers between living persons, as opposed to inheritance
Legal definition of Devise by will – A gift of real property by will, by inheritance.
Legal definition of Suo vigore – Latin: energy, vigour
Legal definition of Instanter – presently to, upon
Definition of reservations, royalties, conditions, obligations, trusts, contracts, licences, charges, rates, title, claim, demand, lien or incumbrance at law or in equity’, to the intent that the legal estate therein, together with all rights and powers, every interest therein, and any easement, power or privilege over, in or in connection with that land – all the words used to convey those elements that the Grant in Fee Simple title is free from on alienation.
This is how we purchase our land from the King/Queen, this is how the Commonwealth resume land from private ownership and the States’ control.
Trespass Sign
In order to protect our property and properly inform all who would enter of our rights, it is important (particularly today) to place No Entry signs on each entry gate to your property, and keep your gates closed.
This sign must be addressed to both persons and entities as this covers both an individual and any public / corporate official.
A person may enter through your gate and proceed to your front door, however any indication that entry is not permitted means the person is now under accusation of trespass.
“The policy of the law is to protect the possession of property and the privacy and security of its occupier. A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises…”
“The policy of the law is to protect the possession of property and the privacy and security of its occupier. A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises…”
This is the sign we have placed at our 2 entrances.
STOP
Notice
This property is owned under a Grant in Fee Simple Title
To all persons and entities entering this property without the permission of the land owners, admittance is by Invitation only
OR
Trespass applies.
Rulings by the High Court of Australia –
• Kuru v State of New South Wales [2008] HCA 26 (12 June 2008)
• New South Wales v Ibbett [2006] HCA 57; (2006) 231 ALR 485; (2006) 81 ALJR 427 (12 December 2006)
• Plenty vs. Dillon [1991] HCA 5; (1991) 171 CLR 635 F.C. 91/004 (7 March 1991)
• George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (20 June 1990)
• Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 (6 December 1984)
• Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923)
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