AGS [2015] QCATA 189

CITATION: AGS [2015] QCATA 189 PARTIES: AGS APPLICATION NUMBER: APL342-15 MATTER TYPE: Application and Appeals HEARING DATE: 2 October 2015 HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 14 December 2015 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – ADULT GUARDIANSHIP – DECLARATION OF INCAPACITY – where the applicant filed an originating application in the Supreme Court – where the application claimed relief in the form of a declaration that certain governmental and administrative arrangements taking place after 8 March 1986 were invalid – where the applicant was a vexatious litigant and had prosecuted the same, or substantially similar, arguments before the Supreme Court on at least seventeen prior occasions – where the presiding Judge referred the applicant to QCAT, exercising its adult guardianship jurisdiction, to ascertain whether the applicant possessed the capacity to pursue the originating application – where QCAT found the applicant possessed certain elaborate delusions regarding the structuring of government and legislative arrangements in Queensland – where QCAT found that the applicant was not capable of understanding the nature and effect of his decisions where the subject of the decisions relate to his delusions – where QCAT declared that the applicant lacked the required capacity to commence and maintain the proceedings before the Supreme Court – where the applicant filed an application for leave -- 1 of 25 -- 2 to appeal and appeal against the decision of QCAT – where the applicant sought to challenge the decision of QCAT on the grounds of the purportedly invalid governmental and legislative arrangements of Queensland – whether the governmental and legislative arrangements of Queensland are regular – whether there are any grounds warranting interference with the decision of the original decision-makers. Acts Interpretation Act 1954 (Qld), s 9(1) Australia Act 1986 (Cth), ss 7, 13 Australia Act 1986 (UK) ss 7, 13 Australia Acts (Request) Act 1985 (Qld), ss 2, 3, 4, 7, 13 Constitution Act 1867 (Qld), ss 2A, 11A, 11B, 53 Constitution Act Amendment Act 1977 (Qld), s 4 Constitution of the Commonwealth of Australia Act 1901 (Cth). Constitution of the Commonwealth of Australia, ss 51, 71, 76(i), 77, 128 Judiciary Act 1903 (Qld), ss 30, 38, 39 Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 25, 28, 61, Statute of Westminster 1931 (Imp), ss 4, 9 Vexatious Proceedings Act 2005 (Qld), ss 6, 9, 10, 11 Attorney-General (Vic) v Commonwealth (1945) 71 CLR 237, 267 Boele v Norsemeter Holding AS [2002] NSWCA 363 Briginshaw v Briginshaw (1938) 60 CLR 336 Buttes Gas & Oil Co v Hammer (No 3) [1982] 1 AC 888 Clampett v Attorney-General (Qld) [2013] QCA 325 Clampett v Hills & Ors [2007] QCA 394 Cook v Sprigg [1899] AC 572 Damberg v Damberg (2001) 52 NSWLR 492 Federal Commissioner of Taxation v Munro; British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1926) 38 CLR 153 Federation Insurance v Wasson (1987) 163 CLR 303 Garcia v National Australia Bank Ltd (1998) 194 CLR 395 International responsibility for the Promulgation of Laws in Violation of the Convention (Article 1 -- 2 of 25 -- 3 and 2 of the American Convention on Human Rights) (1994) 116 ILR 320 Interpretation of the Statute of the Memel Territory (1932) PCIJ Ser A/B No 49, 294 Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 76 CLR 1 Martyn v Graham [2003] QDC 447 Menzies & Bruce v Owen [2013] QCAT 527 Minister for Immigration, Multiculturalism and Indigenous Affairs v Al Masri (2003) 126 FCR 54 Oceanic Sun Line Shipping Co v Fay (1987- 1988) 165 CLR 197 Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170 Parakasho v Singh [1968] P 233 Penhall-Jones [2004] NSWCA 789 R v Minister for Justice and Attorney-General (Qld); Ex parte Skyring [1986] FC 9. Salaman v Secretary of State in Council of India (1906) 1 KB 613 Sharples v Arnison [2002] 2 Qd R 444 Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 Universal Music Australia Pty Ltd v Sharman Licence Holdings Ltd (2005) 228 ALR 174 Watson & Anor v Lee & Anor (1979) 26 ALR 461 APPEARANCES and REPRESENTATION (if any): APPLICANT: AGS (self-represented) REASONS FOR DECISION [1] This is an application for leave to appeal and appeal against the decision of the Queensland Civil and Administrative Tribunal (QCAT), exercising its jurisdiction under the Guardianship and Administration Act 2000 (Qld) to declare the applicant incapable of commencing or maintaining proceedings in respect of application BS7224/2014, filed in the Supreme Court. [2] The applicant is a registered litigant the subject of a vexatious proceedings order under the Vexatious Proceedings Act 2005 (Qld).1 He, therefore, requires leave of the Supreme Court of Queensland before entering proceedings in any court or tribunal.2 [3] On 11 August 2014 the applicant sought leave of the Supreme Court of Queensland to file an application for a declaration that certain legislative and executive acts were invalid for being performed ultra vires or without compliance with prescribed constitutional requirements. It is unnecessary 1 Vexatious Proceedings Act 2005 (Qld), ss 6, 9. 2 Vexatious Proceedings Act 2005 (Qld), ss 10, 11. -- 3 of 25 -- 4 to furnish any further description of the cause of the originating application because it also forms the foundation of these appellate proceedings. [4] Justice Dalton referred the applicant to QCAT for a determination of whether the applicant possessed the capacity to initiate and maintain application BS7224/2014. Justice Dalton made this referral on the basis of perceived irrationality in seeking to re-agitate the cause in BS7224/2014, previously found spurious on numerous occasions by the Court. [5] The referral was heard on 17 April 2015 before Senior Member Endicott and Member Morriss exercising QCAT’s guardianship jurisdiction. On 20 August 2015 the Tribunal handed down its decision declaring that the respondent lacked the requisite capacity to commence and maintain proceedings in respect of application BS7224/2014. [6] The Tribunal primarily relied on various medical, psychological and neuropsychiatric reports indicating that the respondent was not capable of understanding the nature and effect of his decisions insofar as they related to the subject matter of his delusions. The asserted delusions included fundamental defects in the system or infrastructure of Government and Parliament within Queensland, and alleged deficiencies in the lawfulness of currency issued by the Commonwealth. [7] The application for leave to appeal and appeal was filed on 26 August 2015. The only stated ground is: With the Australia Act (Imp) 1986 (sic) never having received the Queens’s (sic) pleasure – as H.M. is (sic) unqualified to give it any manner affecting (sic) the Commonwealth Constitution until s.128 thereof authorises H.M’s (sic) consent, it ‘failed’ to get it – the necessary consequence HAS TO BE that all changes which have been wrought to the ‘High Government’ of this State of Queensland since 8th March 1986 when the Letters Patent were proclaimed on the basis that the Australia Act (Imp) 1986 (sic) had been lawfully enacted, are, in fact and in law, ‘null and void and of no effect whatsoever’ as Law (sic) in this State. As the Guardianship and Administration Act (Qld) 2000 (sic) is one such statute, the ruling purportedly given by Q.C.A.T (sic) is therefore also null and void, and as a consequence, it also ‘has no legal standing whatsoever’. [8] The Tribunal has removed the confusing emphases used by the applicant from the recital of the ground of appeal, but has endeavoured to maintain its substance, devoid of unnecessary textual flourishes, which detract from the legibility and cogency of his arguments. [9] In brief, the applicant submits that the Australia Act 1986 (Cth) and Australia Act 1986 (UK) are void because the Australia Acts (Request) Act 1985 (Qld) is invalid by reason of non-compliance with certain procedural provisions, prescribed under the Constitution Act 1867 (Qld). The effect of non- compliance, according to the applicant, is to invalidate legislation enacted -- 4 of 25 -- 5 after 8 March 1986, including the Guardianship and Administration Act 2000 (Qld) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [10] The applicant contends, therefore, that the Appeal Tribunal is enjoined to set aside the decision of the Tribunal in GAA8056-14 by reason of jurisdictional error, rendering the applicant capacitous to pursue BS7224/2014 before the Supreme Court. PROCEDURAL REGULARITY OF THE APPLICATION FOR LEAVE TO APPEAL AND APPEAL [11] These proceedings exhibit a preliminary procedural irregularity insofar as the applicant has failed to nominate the Public Guardian or Public Trustee as a contravener in his application for leave to appeal and appeal. [12] The Appeal Tribunal considered joining the Adult Guardian or the Public Trustee to the proceedings. On receiving submissions from the applicant, however, it concluded that such a joinder was not necessary or appropriate, because: 1. the Adult Guardian and Public Trustee were not joined in the original proceedings and had not evinced a substantial interest in participating in the dispute; 2. the grounds of appeal bear only peripheral or tangential relevance to the substantive findings in the original proceedings before the Tribunal; 3. the applicant’s arguments, insofar as they are subject to binding precedent emanating from superior courts within the Queensland judicial hierarchy, are futile and doomed to fail; 4. the applicant’s arguments could be readily resolved without resorting to submissions from a contravener; and 5. initiating joinder proceedings would increase the cost, delay and inconvenience associated with adjudicating the appeal. [13] The Appeal Tribunal is required to determine disputes in a manner that is accessible, fair, just, economical, informal and quick.3 The procedure for the administration of any proceeding before the Appeal Tribunal is discretionary,4 provided it acts fairly according to the substantial merits of the case5 and observe the rules of natural justice.6 [14] The Appeal Tribunal does not consider that the failure to join a contravener in the proceedings causes substantial unfairness or injustice to the applicant or any third party and is of the view that its determination would not be 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b). 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(1). 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2). 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a). -- 5 of 25 -- 6 affected by any submissions likely to be made by the Public Guardian or the Public Trustee. [15] To the extent necessary, the Appeal Tribunal grants relief in the form of a waiver of compliance with any material procedural requirement, including any requirement that the proceedings have a contravener, or that the Public Guardian or Public Trustee should be joined. JURISDICTION OF THE APPEAL TRIBUNAL [16] The jurisdiction of the Appeal Tribunal is predominately prescribed by statute.7 The Queensland Civil and Administrative Tribunal Act 2009 (Qld) does not, however, exhaustively define the scope of the jurisdiction of the Appeal Tribunal.8 In particular, the Act is silent on whether the Appeal Tribunal possesses jurisdiction to hear matters of a constitutional nature or which would otherwise be an aspect of federal jurisdiction. [17] The Appeal Tribunal, therefore, invited submissions from the applicant regarding the scope of its jurisdiction in relation to questions concerning the validity of legislation enacted by the Legislative Assembly of Queensland. [18] The applicant failed to provide comprehensive or insightful submissions regarding the scope of the jurisdiction of the Appeal Tribunal. He suggested the Appeal Tribunal lacked the required jurisdiction. However, it appeared that the applicant, in responding to this question, conflated the legitimate issue of the scope of the Appeal Tribunal’s jurisdiction to determine constitutional questions, and the rather arcane issues raised in his application for leave to appeal and appeal. [19] The authority to hear and determine constitutional matters is an aspect of federal jurisdiction. The Constitution of the Commonwealth of Australia (the “Australian Constitution”) empowers the Commonwealth Parliament to vest such jurisdiction in the High Court9 and in any other State courts it invests with federal jurisdiction.10 [20] The Commonwealth Parliament vested the High Court with original jurisdiction to hear all matters arising under the Australian Constitution or involving its interpretation.11 The Commonwealth Parliament has vested the State courts with jurisdiction in respect of all matters in which the High Court has original jurisdiction,12 subject to presently irrelevant exceptions.13 7 Queensland Civil and Administrative Tribunal 2009 (Qld), s 25. 8 See, for example: Queensland Civil and Administrative Tribunal 2009 (Qld), s 25(b). 9 Constitution of the Commonwealth of Australia 1901 (Cth), s 71, 76(i), 77. 10 Constitution of the Commonwealth of Australia 1901 (Cth), s 71, 77(i)-(ii). 11 Judiciary Act 1903 (Qld), s 30(a). 12 Judiciary Act 1903 (Qld), s 39(2). 13 Judiciary Act 1903 (Qld), s 38. -- 6 of 25 -- 7 [21] Therefore, the Appeal Tribunal would possess federal jurisdiction, including the jurisdiction to hear and determine constitutional matters, if it can be properly described as a “Court of a State”. [22] Regrettably, but unsurprisingly, the Judiciary Act 1903 (Cth) does not define the meaning of the phrase “Court of a State”. This raises legally complex, but significant, questions regarding the essential properties of a court, and whether such an entity is an appropriate repository of federal judicial power. [23] Fortunately, this question has been authoritatively determined by the Queensland Court of Appeal. In Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen, Chief Justice de Jersey (as His Excellency then was) held: The legislature has ordained QCAT as a court of record, and has militated independence and impartiality, hallmarks of the judicial process, as mandatory for QCAT. Insofar as the actual operating conditions within the Tribunal may for argument’s sake not have been ideal in terms of judicial criteria, high authority supports the view that one need not nevertheless secure that ultimate ideal in order to justify the “court of law” characterization. Ultimately there is the assurance that this Tribunal is to apply the law, and to do so in the manner in which courts traditionally operate, that is, independently and impartially. That is enough to justify calling this Tribunal a “court of the State” within the meaning of the Constitution: none of the additional features tabulated for the applicant, nor their combination, excludes that conclusion.14 [24] The President of the Court of Appeal also held that: For these reasons, as well as those of the Chief Justice, I consider QCAT is a court of a State for the purposes of s 77(iii), albeit one of summary jurisdiction. This conclusion marries with the obvious legislative intention, inferred from Ch III and s 39(2) of the Judiciary Act, to establish a practical and functional federal scheme whereby State courts can exercise delegated federal judicial power concurrently with their State judicial power.15 [25] This decision was applied by the Queensland Civil and Administrative Tribunal in its later decision of Menzies & Bruce v Owen.16 [26] The Appeal Tribunal is, therefore, an entity properly described as a “Court of the State” within the meaning of s 77(iii) of the Australian Constitution and s 39 of the Judiciary Act 1903 (Cth). Accordingly, it has jurisdiction to determine constitutional matters. [27] However, in many circumstances, genuine constitutional questions are of such gravity and moment, especially where they purport to result in the avoidance of regular legislation, that it will often be appropriate to refer the 14 Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170, [19]-[20]. Justice 15 Ibid, [52]. 16 Menzies & Bruce v Owen [2013] QCAT 527. -- 7 of 25 -- 8 matter, where possible, to the Supreme Court for resolution. This course has not been taken in these proceedings because the arguments advanced by the applicant have previously been the subject of decisive, and repeated, determinations of both superior courts of record. INTERLUDE: FUNCTION AND OPERATION OF PRECEDENT [28] The Appeal Tribunal notes that it is bound by the multitude of decisions17 of the Supreme Court and Court of Appeal in rejecting the applicant’s arguments.18 [29] He has petitioned the Appeal Tribunal to consider his grounds of appeal afresh (on the basis of the assertion that his arguments have not been decisively rejected by any judicial decision). I have taken the request at face value and will consider the issues raised by the applicant independently, without undue recourse to precedent (except to note where other Courts have reached the same conclusion) in the (probably) vain hope of finality. [30] In the unlikely event that the conclusions reached are contrary to higher authority the precedent, of course, will be applied in acknowledgement of the legal, practical, social and moral significance of the doctrine of stare decisis. GROUNDS OF APPEAL OF THE APPLICANT [31] The submissions of the applicant are bulky and byzantine, replete with esoteric textual conventions and idioms which significantly impair coherency and cogency. [32] This is not intended to be a criticism of the applicant, although it is presented in the expectation that his submissions might be improved in any future applications. Rather, it merely records the challenges confronting the Appeal Tribunal in reproducing the applicant’s submissions. [33] There are three distinct, but integrated, arguments advanced by the applicant which, for convenience, are called: 1. the Invalid Request Argument; 2. the Invalid Assent Argument; and 3. the Fraud on the Electorate Argument. [34] The Appeal Tribunal will consider the submissions of the applicant in respect of each argument separately. 17 If citations were required for a proposition of law so elementary and foundational as that of the doctrine of precedent, they would include: Garcia v National Australia Bank Ltd (1998) 194 CLR 395, 417; Federation Insurance v Wasson (1987) 163 CLR 303, 314. 18 See, for example: Clampett v Attorney-General (Qld) [2013] QCA 325; Sharples v Arnison [2002] 2 Qd R 444; Clampett v Hills & Ors [2007] QCA 394; R v Minister for Justice and Attorney-General (Qld); Ex parte Skyring [1986] FC 9. -- 8 of 25 -- 9 Invalid Request Argument [35] The applicant contends that the Australia Act 1986 (UK) and Australia Act 1986 (Cth) (the “Australia Acts”) are invalid because the Australia Acts (Request) Act 1985 (Qld), which is required by the Statute of Westminster 1931 (Imp) and the Australian Constitution for the regularity of the Australia Acts, was void for non-compliance with anterior procedural requirements necessitating a referendum in respect of legislation amending s 11A of the Constitution Act 1867 (Qld) or modifying the office and power of the Governor of the State of Queensland. [36] The Australia Act 1986 (Imp) and the Australia Act 1986 (Cth) (the “Australia Acts”) are complementary statutes enacted by the Parliament of the United Kingdom and the Commonwealth Parliament of Australia. [37] The Parliament of the United Kingdom lacks the power to enact legislation applicable to the Commonwealth of Australia or any State of Australia, except with the statutory consent of the legislature of the relevant sovereign authority.19 [38] The Parliament of the Commonwealth of Australia does not possess the constitutional authority to enact legislation consenting to an interference in the domestic constitutional arrangements of a State of Australia by the Parliament of the United Kingdom20 without: 1. the statutory consent of the relevant State of Australia;21 and 2. the proper conferral of authority under the Australian Constitution.22 [39] Although the two principles are expressed conjunctively, the same statutory instrument could probably discharge both functions. [40] The applicant submits, therefore, that the Parliament of the United Kingdom could not possess the authority to enact the Australia Act 1986 (Qld) without the consent and concurrence of the Commonwealth of Australia and the affected States. Equally, the Commonwealth Parliament could not possess the authority to enact the Australia Act 1986 (Cth) without the consent and concurrence of the affected States.23 [41] The State of Queensland gave statutory consent to the enactment of the Australia Act 1986 (Imp) and Australia Act 1986 (Cth) by the Australia Act (Request) Act 1985 (Qld). The Australia Act (Request) Act 1985 (Qld) contained the following provisions: 19 Statute of Westminster 1931 (Imp), s 4. 20 Statute of Westminster 1931 (Imp), ss 9(1)-(2). 21 Statute of Westminster 1931 (Imp), s 9(2). 22 Constitution of the Commonwealth of Australia 1901 (Cth), s 51(xxxviii). 23 This leaves aside, for the moment, other potential sources of authority under the Constitution of the Commonwealth of Australia 1901 (Cth), s 51. -- 9 of 25 -- 10 1. section 2, which requested the Parliament of the Commonwealth of Australia to enact legislation in terms of Schedule 1, which was the Australia Act 1986 (Cth);24 2. section 3, which requested, and consented to, the Parliament of the United Kingdom to enact legislation in terms of Schedule 2, which was the Australia Act 1986 (UK);25 3. section 4, which requested, and consented to, the Parliament of the Commonwealth of Australia to enact legislation in terms of Schedule 2, which was the Australia Act 1986 (Cth).26 [42] The Australia Acts make very minor formal modifications or alterations to the power and authority of the Governor of the State of Queensland.27 The Australia Acts also make formal modifications to the manner of appointment of the Governor of the State of Queensland.28 [43] The applicant appears to assert that because the statutory consent and conferral of authority by the Queensland Parliament was a condition precedent to the enactment of the Australia Acts, at least insofar as they purported to interfere with the domestic governmental and constitutional arrangements of the State of Queensland, the Australia Acts (Request) Act 1985 (Qld) should be regarded as modifying or altering the power, or at least method of appointment, of the Governor of the State of Queensland. [44] The Constitution Act 1987 (Qld) prescribes that any bill which expressly or impliedly provides for the abolition or alteration in the Office of Governor, or that expressly or impliedly, in any way, affects s 11A of that Act, must not receive royal assent unless approved at a State referendum.29 The failure of such a bill to receive approval at a State referendum before the purported appending of royal assent renders the whole Act invalid.30 [45] The applicant maintains that because the Australia Acts (Request) Act 1985 (Qld), in substance or practical effect, alters the power and authority of the Governor of the State of Queensland, or the manner of appointment under s 11A of the Constitution Act 1867 (Qld), the legislation required approval at an anterior State referendum before receiving royal assent. [46] He says that because the Australia Acts (Request) Act 1985 (Qld) did not receive approval at an anterior State referendum before receiving royal assent, the Act is entirely invalid. 24 Australia Acts (Request) Act 1985 (Qld), s 2. This request was necessary for an effective conferral of authority under the Constitution of the Commonwealth of Australia 1901 (Cth), s 51(xxxviii). 25 Australia Acts (Request) Act 1985 (Qld), s 3. 26 Australia Acts (Request) Act 1985 (Qld), s 4. 27 Australia Act 1986 (Cth), s 7; Australia Act 1986 (UK), s 7. 28 Australia Act 1986 (Cth), s 13; Australia Act 1986 (UK), s 13. 29 Constitution Act 1867 (Qld), s 53(1). 30 Constitution Act 1867 (Qld), s 53(1). -- 10 of 25 -- 11 [47] According to the applicant, as the Australia Acts (Request) Act 1985 (Qld) is invalid, the Parliament of the Commonwealth of Australia did not receive delegated authority to enact the Australia Act 1986 (Cth) in accordance with ss 9(1)-(2) of the Statute of Westminster 1931 (Imp) or s 51(xxxviii) of the Constitution of the Commonwealth of Australia 1901 (Qld). Therefore, the Australia Act 1986 (Cth) is invalid for being ultra vires, at least to the extent that it affects the constitutional arrangements of the State of Queensland. [48] Similarly, as the Australia Acts (Request) Act 1985 (Qld) is invalid, the Parliament of the United Kingdom did not receive delegated authority to enact the Australia Act 1986 (UK) in accordance with s 4 of the Statute of Westminster 1931 (Imp) because there was no valid consent from the Parliament of the State of Queensland, and the Parliament of the Commonwealth of Australia did not possess the requisite power to provide consent on behalf of the Parliament of the State of Queensland. Therefore, the Australia Act 1986 (UK) is invalid for being ultra vires, at least to the extent that it affects the constitutional arrangements of Queensland. [49] The applicant is vague about the manner in which the alleged invalidity of the Australia Acts and the Australia Acts (Request) Act 1985 (Qld) renders Government actions and legislation after 8 March 1986 invalid. [50] However, he seems to posit that legislation purportedly enacted by the Parliament of the State of Queensland is only valid if it has been duly assented to by the Governor of Queensland.31 Sections 13(2)-(3) of the Australia Acts modify the method of identifying and appointing the Governor of the State of Queensland. Prior to 1986 the Governor of the State of Queensland was the person appointed by the Queen by Commission under Her Majesty’s Royal Sign Manual and Signet to the office of the Governor under the State of Queensland.32 On 3 March 1986 the Governor of the State of Queensland was the person appointed by the Queen by Commission under Her Majesty’s Royal Sign Manual. Sections 13(2)-(3) of the Australia Acts also modify the Governor’s obligation to conform to the instructions of the Queen.33 [51] It appears that the applicant contends that because the Australia Acts are invalid, the method of appointment of the Governor of the State of Queensland, and the manner of appending royal assent to legislation enacted by the Parliament of the State of Queensland, is the same as that prescribed by the Constitution Act 1867 (Qld), s 11(2)(a)-(b), bearing amendments until Constitution Act Amendment Act 1977 (Qld). [52] In the applicant’s view, as the Governors of the State of Queensland were appointed in accordance with the modified method of appointment after 31 Constitution Act 1867 (Qld), s 2A(1). 32 Constitution Act 1867 (Qld), s 11A(3)(a), as enacted by the Constitution Act Amendment Act 1977 (Qld), s 4. 33 Constitution Act 1867 (Qld), s 11B, as enacted by the Constitution Act Amendment Act 1977 (Qld), s 4. -- 11 of 25 -- 12 1986, and/or gave royal assent in accordance with the modified manner after 1986, all bills enacted after 1986 are void and of no effect. [53] Therefore, on the applicant’s submissions, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and Guardianship and Administration Act 2000 (Qld) are void for having been enacted after 1986. Accordingly, the Tribunal lacked the required jurisdiction to declare the applicant incapacitous. Invalid Assent Argument [54] While the Invalid Assent argument lacks the convolution characterising the Invalid Request argument, it has its own shortcomings. [55] The Invalid Assent argument relies on a document tendered to the Appeal Tribunal which purports to be a record of proceedings for the parliamentary debates appertaining to the enactment of the Parliamentary Privileges Act 1987. The content of the record of proceedings, however, relates to a House of Commons Second Reading debate on the Commonwealth of Australia Constitution Bill 1900 (Imp). [56] Appended to the record of proceedings is an extract from s 128 of the Commonwealth of Australia Constitution Bill containing typed annotations by an unidentified author writing at an unspecified time after 1986. [57] The written annotation provides that: It would appear from this transcript, and from Section 128 when read in context, that the Australia Act 1986 has not received the Queens (sic) pleasure because she is unqualified to give it in any manner affecting the Constitution until Section 128 authorises her consent. The transcript sets out the proper procedure to be followed, and no amount of dishonesty can prevail over these written words. [58] This extraordinary annotation, of uncertain and unverified provenance, appears to suggest that the Australia Acts have not received Royal Assent, or if they have, that such Royal Assent is invalid because the Australia Acts were not endorsed by an anterior referendum, as required by s 128 of the Australian Constitution for any amendment of the Constitution. [59] Moreover, the applicant claims that the decision to give Royal Assent to the Australia Acts is a “sovereign act” within the meaning of Salaman v Secretary of State in Council of India, meaning that it is non-justiciable.34 [60] The applicant takes the position that the Australia Acts are not only invalid by reason of failing to comply with the prescribed requirements of s 128 of the Australian Constitution, but the Appeal Tribunal possesses no jurisdiction to enquire into the quality of the Royal Assent given to the Australia Acts. 34 Salaman v Secretary of State in Council of India (1906) 1 KB 613. -- 12 of 25 -- 13 Fraud on the Electorate Argument [61] The applicant’s Fraud on the Electorate argument claims that the process used by the legislatures of the State of Queensland, the Commonwealth of Australia, and the United Kingdom amounts to a “fraud on the electorate”. [62] This conclusion proceeds from the apparent premise that the manner of enactment of the Australia Acts circumscribed certain statutory safeguards requiring the approval of the electorate through a referendum, which had the effect of depriving the electorate of the right to endorse the modifications to existing intergovernmental structures and arrangements. [63] The applicant seems to suggest that, were the Appeal Tribunal to find the existence of such a fraud on the electorate, the Appeal Tribunal would be enjoined to make orders voiding the Australia Acts, invalidating legislative enactments made after 8 March 1986. ANALYSIS OF GROUNDS OF APPEAL [64] Having examined the grounds of appeal and arguments proffered by the applicant, it is now time to consider each separately. Invalid Request Argument [65] The Invalid Request Argument rests on a critical, and vulnerable, premise. It is predicated on accepting the argument that the Australia Acts (Request) Act 1985 (Qld) did either of the following so as to activate the referendum requirement under s 53(1) of the Constitution Act 1867 (Qld): 1. abolished or altered the office of the Governor; 2. expressly or impliedly affected ss 11A or 11B. [66] In considering the Australia Acts (Request) Act 1985 (Qld), it is important to distinguish between what the statute does, and does not, do. The Australia Acts (Request) Act 1985 (Qld) does not abolish or alter the office of the Governor. The Australia Acts (Request) Act 1985 (Qld) does not expressly affect ss 11A or 11B. The Australia Acts (Request) Act 1985 (Qld) does not enact Schedules 1, 2 or 3 of that Act. [67] All the Australia Acts (Request) Act 1985 (Qld) does is to request, and provide consent to, the Commonwealth and United Kingdom enacting legislation substantially in the forms set out in Schedules 1, 2 and 3. [68] A simple test of logic is as follows: what would have happened if the Australia Acts (Request) Act 1985 (Qld) had been enacted, and the Australia Acts were never legislated by the United Kingdom and Commonwealth parliaments? [69] The answer to this question is, and must be, that Schedules 1, 2 and 3 would not have been enacted. This is because a request for, and consent to, a different legislature enacting such a statute might contemplate or -- 13 of 25 -- 14 anticipate the passage of such legislation, but does not require, much less actually effectuate, the passage of the contemplated legislation. [70] Thus, at least insofar as the first limb of s 53(1) of the Constitution Act 1867 (Qld) is concerned, the Australia Acts (Request) Act 1985 (Qld) does not alter or abolish the office of the Governor. It is equally clear that the Australia Acts (Request) Act 1985 (Qld) does not expressly affect ss 11A or 11B of the Constitution Act 1867 (Qld) either. [71] The residual question is whether the Australia Acts (Request) Act 1985 (Qld) impliedly affected ss 11A or 11B. In this respect, it cannot be disputed that the Australia Acts themselves expressly and directly modified ss 11A and 11B of the Constitution Act 1867 (Qld). Furthermore, it cannot be seriously contended that, in passing the Australia Acts (Request) Act 1985 (Qld), the Legislative Assembly of Queensland did not contemplate such amendments to ss 11A and 11B of the Constitution Act 1867 (Qld). [72] In a very real sense, therefore, it might be said that the Australia Acts (Request) Act 1985 (Qld) facilitated the modification of ss 11A and 11B of the Constitution Act 1867 (Qld). [73] One might even go so far as to suggest that the Australia Acts (Request) Act 1985 (Qld) indirectly caused the modification of ss 11A and 11B of the Constitution Act 1867 (Qld), because but for the enactment of that statute, the Australia Acts could not have been validly enacted. This argument, however, is not indisputable – a novus actus interveniens took place which may have broken the chain of causation, namely the passage of the Australia Acts by the Commonwealth and United Kingdom legislatures which directly modified ss 11A and 11B of the Constitution Act 1867 (Qld). [74] Fortunately, it is not necessary to resolve the complex question of whether the Australia Acts (Request) Act 1985 (Qld) indirectly caused the modification of ss11A and 11B of the Constitution Act 1867 (Qld), because that is not the language of the statute. Section 53(1) requires the Australia Acts (Request) Act 1985 (Qld) to impliedly – not indirectly – affect ss 11A or 11B of the Constitution Act 1867 (Qld). [75] The Oxford English Dictionary defines the lexemic verb “imply” to mean: To enfold, enwrap, entangle, involve… To involve or comprise as a necessary logical consequence… To express indirectly; to insinuate, hint at... [76] The verb “imply” derives from the Latin term implicāre, meaning to infold or involve. The etymological origins sheds important light on the intensional properties which should be ascribed to the verb “imply”. [77] Nevertheless, modern words are not held captive by their ancient progenitors. The precise colour of meaning to be ascribed to the adjective “implied” will, of course, depend on its statutory and grammatical context. -- 14 of 25 -- 15 [78] Although it is not the most appropriate definition for the adjective “implied” in in s 53(1) of the Constitution Act 1867 (Qld), the third definition extracted in [76] exhibits a superficial similarity with the phrase “indirectly caused”. [79] However, a closer examination demonstrates that the term “indirectly” qualifies the verb “express”. The concept of “express” and “cause” are quite discrete. “Express” discharges a communicative function – that is, to signify something by words, signs or actions. “Cause” discharges a descriptive function – that is, it describes the relationship between two objects or things. [80] To say that X indirectly expressed Y, is not to say that X indirectly caused Y. Although this distinction becomes somewhat confused in the context of legislation, where it is the expression of a rule that causes a particular effect, the distinction remains important. [81] A practical illustration of this principle is that if the Federal Parliament were to enact legislation which implied that proprietary limited companies were subject to higher rates of taxation, one might say that the Legislative Assembly indirectly caused an imbalance in competition by unintentionally discriminating against other forms of corporate vehicles. Even if one could establish that the Federal Parliament intended to create an economic imbalance in the market, one could not correctly say that the legislation indirectly expressed or implied such a market failure, as distinct from indirectly causing a market failure.35 [82] For something to be implied within a statute, it must be contained within the operative text of the statute, regardless of whether it was intended by the legislature. This is reflected in the etymological root implicāre (meaning to infold or involve) and the first and second definitions prescribed by the Oxford English Dictionary. Thus, all three definitions require the subject of the purported implication be contained within the text of the statute. [83] The difference between indirect causation and implication is a subtle, but crucial, distinction in understanding the operation of s 53(1) of the Constitution Act 1867 (Qld). The legislature might have reframed s 53(1) to refer to any Act of the Legislative Assembly of Queensland which, directly or indirectly, affected ss 11A and 11B of the Constitution Act 1867 (Qld). However, the Legislature used the language of “express or implied”, which possess a clear and distinct meaning. [84] A lenient interlocutor might intercede on behalf of the applicant claiming that the analysis above is an exceedingly strict or grammarian approach to the construction of s 53(1) of the Constitution Act 1867 (Qld). [85] The Appeal Tribunal is sympathetic to such objections. Despite this, the Appeal Tribunal is of the view that it is not unduly strict or pedantic to ascribe to a word its natural and ordinary meaning, especially where it is consistent 35 This is different from arguing that the system enacted by the Legislature implied the existence of such a market failure. In this situation, the word implied adopts a different meaning, because it is not reified in text. Rather, the system established by the Legislature encompasses more than the mere text of any statute to which it relates. -- 15 of 25 -- 16 with its common usage. In any event, were the analysis open to the objection of prescriptivism, the Appeal Tribunal would note the following principle espoused by Isaacs J in Federal Commissioner of Taxation v Munro; British Imperial Oil Co Ltd v Federal Commissioner of Taxation: There is always an initial presumption that Parliament did not intend to pass beyond constitutional bounds. If the language of a statute is not so intractable as to be incapable of being inconsistent with this presumption, the presumption should prevail.36 [86] Therefore, as the preferred construction of the Australia Acts (Request) Act 1985 (Qld) is open on the natural and ordinary meaning of the text of the statute, and there is no clear parliamentary intention militating against such an interpretation, the Act should be construed so as not to infringe s 53(1) of the Constitution Act 1867 (Qld).37 [87] The Australia Acts (Request) Act 1985 (Qld) did not alter or abolish the Office of the Governor, or expressly or impliedly affect ss 11A or 11B of the Constitution Act 1867 (Qld). Furthermore, s 53(1) of the Constitution Act 1867 (Qld) only applies in respect of the Queensland legislature, not the legislatures of the Commonwealth of Australia or the United Kingdom. [88] Accordingly, leave to appeal should not be granted on this ground. Invalid Assent Argument [89] The Invalid Assent argument possess two distinct limbs: 1. that Her Majesty the Queen did not give Royal Assent to the Australia Acts; and/or 2. that Her Majesty the Queen did give Royal Assent to the Australia Acts, but that such Royal Assent was invalid by reason of non-conformance with the procedural requirements prescribed under s 128 of the Australian Constitution. [90] The first limb of the Invalid Assent argument raises a question of fact, namely whether Her Majesty the Queen gave Royal Assent to the Australia Acts. [91] The presumption of regularity is an evidentiary principle which presumes, in a non-criminal case, that an administrative act or function was properly performed unless the contrary is proved. This remits the persuasive onus of proof to the party asserting that the administrative act or function was not 36 Federal Commissioner of Taxation v Munro; British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1926) 38 CLR 153, 180. See further: Attorney-General (Vic) v Commonwealth (1945) 71 CLR 237, 267; Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 76 CLR 1, 14; Minister for Immigration, Multiculturalism and Indigenous Affairs v Al Masri (2003) 126 FCR 54. 37 Acts Interpretation Act 1954 (Qld), s 9(1). -- 16 of 25 -- 17 discharged. In many respects, the presumption is a species of the overarching rule that “he or she who asserts must prove”. [92] The rationale for the rule is self-evident: an official is assumed to properly perform their administrative functions, unless there is some fact, reason or circumstances to find otherwise. This promotes efficiency in judicial decision-making, and avoids the burdensome requirement of seeking evidence from every official involved complex administrative processes that the intricacies of a bureaucratic procedure, on which the validity of some act or instrument depends, has been regularly discharged, until there is cogent and credible evidence indicating it had not been regularly discharged. [93] It is important to observe that this expression of the rule does not purport to be a complete or precise expression of the presumption of regularity or its supporting rationale. In practice, the presumption is characterised by jurisprudential inconsistency and abundant exceptions, especially where it is applied in novel or emerging categories of cases. Happily, this is an archetypal case for the application of the presumption of regularity. [94] The appellants in Watson and Anor v Lee and Anor were convicted of offences involving the sending of currency out of Australia in breach of rr 6 and 42(1) of the Banking (Foreign Exchange) Regulations (Cth). The appellants claimed that the effect of s 48(1) of the Acts Interpretation Act 1901 (Cth) and s 5(3) of the Rules Publication Act 1903 (Cth) was that the regulations did not enter into effect until they were duly notified [95] They appealed to the High Court of Australia claiming that the regulations had not been duly notified as required by s 48(1) of the Acts Interpretation Act 1901 (Cth) and s 5(3) of the Rules Publication Act 1903 (Cth). According to Barwick CJ, due notification required, at least, the provision of copies of the regulation at the location nominated in the notifying Gazette. Chief Justice Barwick concluded that: There remains the question of proof of the availability of the copies of the regulations. It is quite possible to take the view that the availability of the copies of the regulations is an indispensable part of the proof of their operation and therefore on the Crown if it is seeking to enforce the regulations. That ought not to place a very great burden on the Crown because presumably proper records are kept of the delivery of copies of the regulations by the government printer to the various sub-treasuries or other places where it is said they will be available for purchase. But, in my opinion, at least prima facie, the presumption of regularity will satisfy any such onus. If availability for purchase at the place notified is challenged, it seems to me that, having regard to the presumption of regularity, the onus of establishing that they were not is upon the person raising the question. In this case, the plaintiffs accepted the task of establishing that on the date of notification copies of the relevant regulations were not available at the place specified. In my opinion, they have failed to do so. The highest point to which proof rose was that it was not known whether or not they were so available. That, it seems to me, left the presumption to work and satisfy the obligation of the Crown to establish the availability of the regulations. I would therefore -- 17 of 25 -- 18 not be prepared to hold that the regulations in this case never became operative. On the contrary, accepting the presumption of regularity, I would hold that they became operative on the date of their notification.38 [96] Watson & Anor v Lee & Anor establishes that, even in cases where non- compliance with an anterior administrative function is a requirement for the valid operation of legislation, the presumption of regularity operates to require the party asserting non-compliance to establish the fact, to the civil standard of proof, of non-compliance. It is only a small step of logic from Watson & Anor v Lee & Anor to determine that the same principle applies in respect of establishing non-compliance with an anterior administrative function which is a constitutional predicate of the validity of legislation. [97] The presumption of regularity appears to apply here, but the question does not need to be resolved. The general principle, that “he or she who asserts must prove”, would nevertheless require the applicant to establish non- compliance with the requirement of Royal Assent to the prescribed civil standard of proof. [98] What evidence is there to negative the presumption that the Australia Acts had received Royal Assent by Her Majesty the Queen, or the relevant vice- regal representatives? [99] The only evidence tendered by the applicant is in the form of the peculiar annotation extracted and described at [55]-[61]. [100] The annotation is documentary hearsay, and therefore cannot be used for the purpose of establishing the truth of the facts contained therein. The source or provenance of the annotation has not been established, meaning that neither its trustworthiness nor probative value can be properly assessed. Furthermore, the annotation is inherently ambiguous, insofar as it is unclear whether it is asserting that Her Majesty the Queen did not, in fact, give Royal Assent to the Australia Acts, or that Her Majesty the Queen failed to give valid Royal Assent to the Australia Acts. [101] Even if admitted despite its evidentiary weakness, the annotation has little weight and is insufficient to discharge the applicant’s onus to the required civil standard. [102] To make good his case, the applicant has adduced, what is at best, an incredible, unreliable, ambiguous, and technically inadmissible ‘scintilla’ of evidence tending to suggest the Australia Acts might not, in fact, have been given Royal Assent by Her Majesty the Queen, or Her Majesty’s vice-regal representatives, which is also inadequate to displace the presumption of regularity. 38 Watson & Anor v Lee & Anor (1979) 26 ALR 461, 467. -- 18 of 25 -- 19 [103] Accordingly, there is no reason for finding that Her Majesty the Queen, and Her Majesty’s vice-regal representatives in Australia, did not, in fact, give Royal Assent to the Australia Acts. [104] The second limb of the Invalid Assent argument raises a question of law. The applicant infelicitously frames this contention as a question of whether Her Majesty the Queen, or Her Majesty’s vice-regal representatives, gave valid Royal Assent to the Australia Acts. However, the argument is more conveniently framed as a question of whether the Australia Acts are invalid by reason of failing to comply with an anterior constitutional condition. [105] The Appeal Tribunal has dispensed with the applicant’s contention that the Australia Acts are invalid because the Australia Acts (Request) Act 1985 (Qld) was not sanctioned by an anterior referendum in Queensland under s 53(1) of the Constitution Act 1867 (Qld). The residual question, therefore, is whether the Australia Acts required prior endorsement by a referendum under s 128 of the Australian Constitution. [106] Section 128 of the Australian Constitution requires a referendum to approve any amendments to the Australian Constitution. Indeed, the introductory clause provides that: This Constitution shall not be altered except in the following manner… [107] The word “[t]his” operates as a demonstrative determiner of the noun “Constitution”. Therefore, it identifies and refers to the relevant Constitution within which the phrase is used.39 It does not refer to any conventions, principles, or intergovernmental arrangements, which may be regarded as possessing a constitutional or quasi-constitutional quality, that are not expressly contained within the text of the Constitution. [108] The Australia Acts did not expressly amend, repeal, or otherwise modify the Australian Constitution. Accordingly, the Australia Acts did not activate the referendum procedure required under s 128 of the Constitution. [109] As the Australia Acts did not need to be sanctioned by referendum, there is no impediment to the validity of the Australia Acts of the kind described by the applicant in these proceedings. [110] As Her Majesty the Queen, and Her Majesty’s vice-regal representatives, gave Royal Assent to the Australia Acts, and neither the Australia Acts, nor the Royal Assent given to such Acts, are invalid by reason of a failure to comply with anterior referendum requirements, the relevance of Salaman v Secretary of State in Council of India40 is not immediately obvious. 39 This section does not, nor is it intended to, analyse the complex question of whether the mechanism employed in s 128 for modification of the Australian Constitution may also be used to modify the Constitution of the Commonwealth of Australia Act 1901 (Cth). 40 Salaman v Secretary of State in Council of India (1906) 1 KB 613. -- 19 of 25 -- 20 [111] It is undoubtedly correct that some of the sovereign acts which took place to further the independence of Australia from the United Kingdom would not be justiciable by the courts of Australia or the United Kingdom. It is unclear whether the giving of Royal Assent is such a sovereign act, because the provision of Royal Assent is commonly a condition precedent to the validity of legislation, a matter which is evidently within the jurisdictional auspices of the judiciary. It is sufficient to observe that, even if it were such a sovereign act, the Appeal Tribunal is satisfied that there is no material irregularity invalidating the Australia Acts, or their Royal Assent. [112] Accordingly, leave to appeal should not be granted on this proposed ground. Fraud on the Electorate Argument [113] The applicant’s Fraud on the Electorate argument presumes that the circumvention of complex referendum requirements amounts to a “fraud” perpetrated on the electorate. [114] In cases involving the validity of acts of parliament, it is not useful to discuss matters in such emotive and imprecise language. The only question for consideration is whether the subject legislation was within the scope of the legislative power of the parliament. The resolution of this question requires no findings as to the moral, ethical or normative quality of the procedure adopted by Parliament to enact the legislation. Such evaluations are mere distractions from the central function of the Appeal Tribunal. [115] The arguments of the applicant fail to raise any material impediment to the validity of the Australia Acts. The Australia Acts are within the compass of the legislative and constitutional authority of the relevant parliaments. No normative evaluations may be permitted to interfere with this conclusion. [116] The legislatures of the State of Queensland and Commonwealth of Australia possess the right to enact legislation to achieve impolitic or opprobrious purposes, and abrogate precious and fundamental common law or statutory rights, provided that it does not infringe on any constitutional proscriptions. In such circumstances, the courts and tribunals of Australia are enjoined to uphold such laws, although it may offend more refined sensibilities. [117] This heavy duty of the judiciary is a necessary corollary of the constitutional separation of powers, and a function of the principle of parliamentary supremacy. It is also implied by the doctrines of responsible government and representative government, as the judiciary is neither responsible to, nor representative of, the people through direct or conventional means, excluding the rather extreme faculty of popular revolt. [118] The Australia Acts, and the procedure employed to enact the legislation, were within the scope of the constitutional authority of the Queensland and Commonwealth legislatures. [119] Accordingly, leave to appeal should not be granted on this ground. -- 20 of 25 -- 21 Jurisdiction to Determine the Validity of the Australia Act 1986 (UK) [120] The Appeal Tribunal’s consideration of the applicant’s arguments has been limited to legislation of Queensland and the Commonwealth of Australia. The applicant has also posited, using the Invalid Assent argument, that the Australia Act 1986 (UK) is also invalid. [121] Although I would apprehend that the substance of the applicant’s arguments are unmeritorious for the reasons described above in the Australian context, it does raise a vexing threshold question of the jurisdictional competence of Australian courts to determine the validity of foreign domestic legislation. [122] Related to this matter is the intractable question of the practical effect of an Australian court declaring foreign legislation invalid for non-compliance with an anterior constitutional procedure. The futility of any such purported annulment would, in solus, justify the exercise of judicial restraint through declining to exercise jurisdiction over the subject matter of the dispute. [123] Assuming that the matter is justiciable, a further problem might arise: foreign law is traditionally considered a question of fact, albeit one of an anomalous and peculiar nature.41 As described at [100] – [102] of this decision, the evidence adduced by the applicant to establish the facts of the foreign law is unsatisfactory and unreliable. The applicant has not attempted to adduce any expert evidence to establish the foreign law on which he seeks to rely. [124] The jurisdiction of the Appeal Tribunal is prescribed under the ss 25, 26 and 142 of the QCAT Act and s 39 of the Judiciary Act 1903 (Cth). Neither the statutory nor federal jurisdiction of the Appeal Tribunal purports to confer jurisdiction to determine the validity of legislation of the United Kingdom. Indeed, the Appeal Tribunal doubts whether a superior court of record, such as the Supreme Court, possesses the jurisdiction to make such orders.42 [125] Even if the Appeal Tribunal possessed the required jurisdiction, the Appeal Tribunal would, ex proprio motu, raise the issue of forum non conveniens. It would seem that if the applicant intended to agitate matters involving the validity of legislation enacted by the Parliament of the United Kingdom, the Appeal Tribunal would be a clearly inappropriate forum.43 The United Kingdom has a robust and vibrant local judiciary possessing the jurisdiction, competence, and legal system required to respond to the application. [126] Assuming that the Appeal Tribunal possessed the required jurisdiction, and the applicant could persuade the Appeal Tribunal of the, quite extraordinary, 41 Parakasho v Singh [1968] P 233, 250 per Cairns J. 42 Interpretation of the Statute of the Memel Territory (1932) PCIJ Ser A/B No 49, 294, 336; International responsibility for the Promulgation of Laws in Violation of the Convention (Article 1 and 2 of the American Convention on Human Rights) (1994) 116 ILR 320, 332. 43 Oceanic Sun Line Shipping Co v Fay (1987-1988) 165 CLR 197, 251. Indeed, as the application requires leave of the Appeal Tribunal, the Appeal Tribunal would need to be affirmatively satisfied of forum conveniens, that is, that the Appeal Tribunal is the most appropriate forum for the determination of the applicant’s arguments: Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460, 464-465. -- 21 of 25 -- 22 notion that it constitutes forum conveniens, the Appeal Tribunal is presented with the question of whether it should decline to exercise jurisdiction over the subject matter of the applicant’s contentions. The Appeal Tribunal would be of the view that the validity of foreign legislation is non-justiciable.44 [127] If the applicant, through an exceptional feat of advocacy, were to persuade the Appeal Tribunal of the abovementioned matters, the applicant would then be faced with the consequences of his abject failure to adduce any appropriate evidence of English constitutional and administrative law on the justiciability of the validity of Royal Assent given to English legislation. The applicant might seek refuge in the presumption of identity; but the Appeal Tribunal would decline grant him such comfort. The presumption of identity is not a principle of universal application.45 [128] Where the subject matter of the presumption is of such moment and complexity as to relate to the avoidance of legislation for want of compliance with constitutional requirements, the Appeal Tribunal would be hesitant to presume that the laws of the United Kingdom were identical to the laws of Australia, despite our common legal, historical and institutional heritage. [129] Once more the lenient interlocutor might intercede to salvage the applicant’s arguments. The interlocutor might rightly say that the Appeal Tribunal has answered a question which the applicant has not, and need not, ask: that is, whether the Appeal Tribunal might, as a matter of law, declare the Australia Act 1986 (UK) invalid for want of compliance with constitutional requirements. The interlocutor might say that the applicant was merely asking for the Appeal Tribunal to find, as a question of fact, that the Australia Act 1986 (UK) was invalid for non-compliance with an anterior constitutional requirement, not to declare it so invalid. The interlocutor might observe that, were the Appeal Tribunal to conclude that the Australia Act 1986 (UK) was invalid, the Appeal Tribunal would possess the jurisdiction required to hold that the Australia Act 1986 (Cth) was similarly invalid. [130] The Appeal Tribunal, in response to such a contention, would observe that, if the applicant were to be taken as advancing such an argument, the applicant would be assuming a fact which had not been established. No decision of any United Kingdom court or tribunal has held that the Australia Act 1986 (UK) is invalid. The Appeal Tribunal must, in considering foreign law, take the law as it is found. That is, the Australia Act 1986 (UK) must be taken as valid until it is voided by a decision of a United Kingdom court. [131] Accordingly, the Appeal Tribunal finds that it possesses no jurisdiction to determine that the Australia Act 1986 (UK) is invalid for want of compliance with an anterior constitutional requirement. The Appeal Tribunal also finds, 44 For an authority supporting the existence of this discretion, see: Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888, 932-933; Cook v Sprigg [1899] AC 572, 578. 45 See the erudite exposition of Heydon JA (as his Honour then was) in Damberg v Damberg (2001) 52 NSWLR 492, [112] – [147]; Boele v Norsemeter Holding AS [2002] NSWCA 363; Penhall-Jones [2004] NSWCA 789; Universal Music Australia Pty Ltd v Sharman Licence Holdings Ltd (2005) 228 ALR 174; martyn v Graham [2003] QDC 447. -- 22 of 25 -- 23 on the limited evidence available, that, as a question of fact, the Australia Act 1986 (UK) is valid until held to the contrary by a United Kingdom court. [132] Leave to appeal should not be granted in respect of this ground. MERITS OF THE DECISION OF THE TRIBUNAL EXERCISING ITS ORIGINAL JURISDICTION [133] Hopefully, the detailed analysis dispenses with the grounds of appeal in a way that the applicant can now accept defeat. [134] He has not made any reasonable attempt to challenge the decision of the Tribunal exercising its original jurisdiction. Put at its highest, the applicant has resorted to claiming that psychology and psychiatry are “pseudo- sciences” and should not be relied on by the Tribunal. [135] This statement is supported by a series of extracts of email exchanges, broadly prejudicial to psychiatry and psychology, with others. The emails also contain further extracts of information published on the internet which are similarly derisory to those professions, most significantly a paper intituled “The Devious Matrix Called Psychiatry: The war on free consciousness…” [136] Interspersed among the emails are peculiar references to unrelated topics, such as the dangers of water fluoridation and vaccination. Several emails also assert that such practices, including the proliferation of psychiatry and psychology, may be part of an elaborate government conspiracy designed to impair freedom of thought and oppress the community. [137] This evidence is new, not fresh, and therefore should not be admitted in the appeal proceedings without leave of the Appeal Tribunal. Leave was not sought to adduce such evidence, nor was leave granted. Indeed, the absurdity and irrelevance of the material adduced would have militated against granting leave. [138] Even if the evidence was accepted, there is no credible or reliable material supporting his defamatory assertion that psychology and psychiatry are pseudo-sciences. The applicant certainly has singularly failed to establish that the original Tribunal was incorrect in relying on psychological evidence to establish that he lacked the capacity to understand the nature and effect of proceedings which relate to his delusions. [139] Obviously, the guardianship jurisdiction should not be used as a forum for silencing ostensibly capacitous litigants, however vexatious. And I admit that initially it struck me as a little suspicious that a litigant known to the courts and tribunals of Queensland, and familiar with the nature and procedures associated with the judicial process, should be regarded as incapacitous under the Guardianship Administration Act 2000 (Qld). [140] But any reservations were rapidly dispelled by the submissions filed by the applicant in the current proceedings. Many of the applicant’s claims, -- 23 of 25 -- 24 especially his denigration of the psychology and psychiatry professions, are nonsensical, entirely baseless, and peripheral to the central question to be determined by the Appeal Tribunal. [141] Indeed, his arguments in this application for leave to appeal and appeal are of tangential relevance to the substantive issues in dispute, and have been resolved on numerous occasions by the Supreme Court of Queensland. [142] The Appeal Tribunal notes that this is an exceptional case. The expert evidence in the original and appeal proceedings was, in substance, unanimous and uncontradicted. The declaration of incapacity is narrow, and relates only to the proceedings before the Supreme Court. The applicant has failed to respond to the substantive issues in contention. [143] It is important, in most cases, to distinguish between a vexatious litigant and a person lacking the capacity to understand the nature and effect of litigation. A person who makes a decision for religious reasons, irrational reasons, or no reason at all, may nevertheless possess the capacity to make that decision. Irrationality is only inductive evidence from which incapacity may be inferred. Irrationality, or poor judgment, is not incapacity. [144] Although the judiciary, supported by public funds, should be expedient in its use of resources, within a sophisticated democracy governed by the rule of law the judiciary discharges an important function of providing access to justice. Access to the courts and tribunals is an important human right, and is integral to maintaining the rule of law and holding the executive and legislature to account for constitutional overreach. [145] Only in exceptional circumstances should a litigant, who ostensibly understands the nature and effect of the judicial process, and can articulate a coherent but losing argument, be declared to be incapacitous. The effect of such a declaration would, in many cases, preclude the litigant from commencing or maintaining legal proceedings without approval from their surrogate decision-maker. If the litigant persistently initiates frivolous legal proceedings, the appropriate response is to take action to have the litigant declared a vexatious litigant, not to have the litigant declared incompetent. This balances the public interest in ensuring the efficient and expedient administration of justice, and preserving the rights of the litigant to initiate and maintain legal proceedings. [146] In light of these observations, and considering that the applicant has not furnished any additional evidence in these proceedings tending to contradict the expert evidence in the original hearing, there is no justification for interfering with the findings of fact of the Tribunal. [147] Accordingly, leave to appeal should not be granted. CONCLUSION [148] The applicant has not established that the Guardianship and Administration Act 2000 (Qld) is void by reason of the invalidity of the Australia Acts. -- 24 of 25 -- 25 [149] The applicant has not established that the decision or orders of the Tribunal exercising its guardianship jurisdiction were infected by legal, factual or discretionary error. [150] Therefore, the applicant has failed to establish a reasonably arguable case that the original decision and orders should be vacated. [151] Leave to appeal should be refused. ORDER [152] It is the decision of the Appeal Tribunal that leave to appeal is refused. -- 25 of 25 --