The Case Against Vaccine Mandates

REVIEW OF LAW

It is herein submitted that all mandates which deny, and infringe upon the fundamental rights and free­doms of Victorians which have been issued under the directives of Brett Sutton Chief Health Officer (Victoria) are uncon­stitutional, that is, that the mandates, or parts of the mandates are ultra vires the constitution of Victoria.

Before we begin an analysis of the mandates and the Constitution perhaps some observations taken from Australian law as to the continued validity of the “natural law” and fundamental rights of the people would be appropriate.

EARLY CASES IN NSW

There appears in many of the earlier cases in NSW decisions which affirm the constitutional fundamental rights of the people of Australia. These earlier cases appear to have been ignored by contemporary lawyers, yet the cases have never been overruled.

EX PARTE NICHOLS

The Case of Ex Parte Nichols (1839) 1 Legge 123 is one such case which clearly indicates the strength of the judges conviction in the natural law heritage applying in New South Wales.

Here are two quotes from that case:

Downling CJ at 126.5

“Independently of any Act of Parliament, I take it to be a principle of the law of England and of natural justice, that every defendant, whether in a civil or criminal judicial proceeding (summary or not), has a right to be fully heard in person, in defence of his property, his fame, his liberty, or his life.”

Also Stephen J., who would eventually become another of NSW’s distinquished Chief Justices stated at page 135.8

“I also think the principle exists, but at Common Law, and not by force enactment whatev­er.”

The constant theme expressed throughout the case was the concept of constitutional fundamental rights;

Dowling C.J. at page; 128.1 - “applicability of all the fundamental laws of England” 128.7 - “I regard as a fundamental personal right”

128.9 - “Shall therefore a fundamental law regarding a personal right”

Willis J. at page; 131.8 - “it adds to the great constitutional right conferred by Magna Charta”

132.6 - “a fundamental constitutional personal right of British subjects”

132.7 - “birthright of an Englishman as the Magna Chrarta, the Habeas Corpus”

133.6 - “personal rights which are fundamental, constitutional, and inherent”

Stephen J. at page; 135.8 - "suprra"

Clearly, the early judges considered that the people of NSW (and in turn the people of Australia) had fundamental rights received from our English heritage.

MacDONALD -V- LEVY

In MacDonald -v- Levy [1833] 1 Legge 39, the judges considered the statute of 9 Geo. IV, c. 83, and the law of NSW.

Burton J. at page 49.0 recognised the duty of the judges as the guardians of the rights of the people;

“I look upon this clause as the great charter of the Colony, and at once yielding to the colonists all that by the common law, or by the liberal, and enlightened, and accumulated wisdom of our ancestors, has been provided for the protection of life, liberty and property, and for regulating the transactions of men with each other. All becomes by virtue of it “the justice and right” which the judges are sworn to do to all the Kings’ subjects, and which is expressly provided in one of the clauses of Magna Charta.”

The learned judge also recognised the separation of powers doctrine on the same page at 49.7, wherein he noted the difference in deciding the application of the law versus the policy decisions of Parliament inherent in making a law.

Forbes C.J. clearly indicated the difference between constitutional laws and legislative laws at page 56.3

“Adopting the distinction here drawn, by the Judges in England, between such laws as are of a general and fundamental kind, upon which the constitutional Government, and social rights of the community depend, and such as are of a political and local nature, calculated to suit the exigencies of particular times and places, and admitting of a deviation without effecting the general laws of the Empire....”

It is at page 59.8 that the Chief Justice indicates that legislative laws must be reasonable and not repug­nant to the constitution,

“Let me not, however, be mistaken; the laws of England are our birthright where they apply to our condition, and can be administered to us with advantage; but where they are inap­plicable they are not in force, and where they are silent then there is no law, unless established by the general consent and usage of the Colony at large or the local Legislature, both being alike subordinate to the great and sovereign principle that our local laws and usages must be reasonable in themselves and not repugnant to the general laws of the parent country.”

REGINA -V- ROBERTS

In Regina -v- Roberts [1850] 1 Legge 544 the court was again approached to decide an issue regarding the interpretation of 9 Geo. IV, c. 83. Dickinson J. spent a great deal of time and effort, starting at page 562.1 and continuing to page 567.8 in defining the difference between the natural law and statute law. It is at page 567.5 that the judge shows the connection of the public interest aspect of a piece of legisla­tion to the rational basis for the legislation:

“From the method of discovering the common law, it is evident that its spirit is essentially the consid­eration of the public advantage; for in the resolution of cases of the first impression, the Courts must proceed as in matters of pure ethics, and decide according to their views of general consequences. On the other hand, no community is ever likely to sanction a decision that is perceived to be more advanta­geous to individuals that the majority. It is a leading maxim of the common law, that “a private mischief is preferable to a public inconvenience.”

Two restatements of the learned Judge’s comments can be taken which have relevance in the present case;

1. “A law against public interest is against the spirit of the common law, against the rule and dictate of right reason.”

2. “A private gain cannot be taken against the public interests.”

At page 569.5 the learned Judge continues with the necessity of instituted laws being similar in spirit to the natural law. At page 569.9 he indicates that the Court can recognise an infringement on the natural law, as long as it is not an undue infringement which creates a nullity of the natural law.

RUSDEN -V- WEEKS

In Rusden -v- Weeks [1861] 2 Legge 1406, the Court was called upon to decided if an Act of the Colo­nial Legislature which was contrary to Imperial Legislation binding on the people of NSW.

The decision of Wise J. starting a page 1419.9 - 1420.8 clearly supports the position of judicial review of legislation by the Parliament of NSW;

“..as the supremacy of the law is the characteristic of every constitutional government, it becomes the imperative duty of the courts of justice, independently of all political considerations, to decide which is the law of the land.”

EX PARTE THE REV. GEORGE KING

In Ex Parte The Rev. George King [1861] 2 Legge 1307 an ecclesiastical law was declared not a part of the laws and statutes of NSW.

Again Dickinson acting as the Chief Justice indicated at page 1313.1-.6 the universal nature of the nat­ural law and that no statute was necessary to introduce the natural law to NSW.

SUMMARY OF THE CASES

It appears quite clearly that the judges of NSW considered that the people of NSW had fundamental constitutional rights, that the courts could declare an Act of Parliament void, that the laws of the legis­lature must be reasonable and not inconsistent with the Constitutionnand that fundamental documents such as the Magna Charta, Bill of Rights and Habeous Corpus Act composed parts of the Constitution.

That was the position of the law in the mid-19th century, as will be shown, there is nothing to prevent the Judges of the 21st century from taking the same position.

THE MID-19TH CENTURY

The position taken by the judges of NSW was not distinctly different from the position taken by judges in other colonies, although the judges of NSW did not have any conflict with the Parliament over the concept of judicial review, in South Australia a signficant conflict arose. It was this conflict between the Parliament and a Supreme Court Judge that became known as the “Boothy affair”.

As will be shown, no change occured in the powers of judicial review because of the “Booth affair”. However, because people live, work and play, with what they think is reality, and not with what is reality; the legal profession of Australia, being misguided by several misoncpetions, appears to have disregard­ed the early law.

It is submitted that two things occurred in the latter half of the 19th century which affected the legal think­ing in NSW;

1. The Colonial Laws Validity Act and the re-assertion of legal positivism.

2. The "Sovereign Parliament" theory.

It was the re-assertion of legal positivism which had the greatest influence on the development of law in England and eventually in Australia. Whereas the people of England through the Bill of Rights of 1688 had declared once and for all an end to legal positivism in the form of the King’s Prerogative, various academics in the 19th century revived the concept, in the form of the Parliament’s Prerogative or as it is better known, the “Sovereign Parliament”.

In order to perform this bit of magic the various academics created their own version of English legal theory which they supported with their own brand of legal authority. This alleged legal authority did not, does not, support the position taken by the exponents of the “Sovereign Parliament” theory. It was this le­gal/political theory that was being taught to the legal practitioners of the latter part of the 19th Century.

We will return to the “Sovereign Parliament” theory in due course, but first, The Colonial Laws Validity Act.

THE COLONIAL LAWS VALIDITY ACT

As the Court should be aware the Colonial Laws Validity Act was the result of the events of the “Boothy affair” in South Australia. The following is a simple recapitulation of this event in the history of Australian judicial review.

Justice Booth, a Judge of the Supreme Court of South Australia, had declared several Acts of the Par­liament void for various reasons. This irritated the Parliament to such an extent that requests were sent to England to grant them unrestricted power to pass legislation. The first response from England contained the opinion of the law officers of the Colonial Office which stated in Opinion No 110 (April 12, 1862)

3. "Is he to pronounce such an Act invalid, if its provisions be, in his opinions, contrary to the principles of British Law which he deems fundamental...?”

The answer of the law officers read:

3. "This question we also answer in the affirmative and on the same ground of an unquestionable ‘repug­nancy’”.

The whole of the report was sent back to Sir Dominic Daly in a letter dated April 24, 1862, from the Duke of Newcastle;

“I enclose a copy of the report...a most valuable document...which I perceive with pleasure to have been in some of its most important features anticipated by the able and temperate statement on this subject, which has emanted from a Committee of the House of Assembly. As this report is in entire accordance with the views of Her Majesty’s Government...[I]n performing any executive act, or in advising the Queen in respect of any exercise of Her Royal Pre­rogative. Her Majesty’s Government, in conformity with the opinion of Her Law Advisers, will be guided by the following principles. They consider that a Colonial Judge is not only at liberty, but is bound to entertain the question, whether a colonial law, material to the decision of the question before him, is or is not valid. They consider that such an Act, even though left to its operation by Her Majesty, is void, if repugnant to an Act of the Impe­rial Parliament intended by that parliament to apply to the Colony; that it is also void if contrary to any of those essential principles of what may be called natural jurisprudence, which, as modified by the ideas and institutions of Christianity, have been adopted as the foundation of the existing law of England; but that it would not be void in consequences of any divergence from provisions of the English law which, having no necessary connection with any such fundamental principles, are, or might have been dictated by mere national pecularity, or consideration of local or temporary convenience.”(South Autralian Parliamentary Papers No 68 House of Assembly 1-2 (1862)

This response from England was not what the South Australian Parliament wanted to hear. In 1862 more legislation was alleged to be invalid, so back went another request dated 23 December 1862, requesting unbridled power through an Imperial Act. The Act, 26 & 27 Vict. c 83 was passed which validated previous laws, but which refused to remove judicial review.

The South Australian Parliament still continued to have problems with Justice Boothy. Although this was a conflict with a single Judge, the Parliament sought more that just relief from their immediate nemesis, they sought an extension of their power. In June 1864 the South Australian Parliament put together another committee to prepare an address to the Queen which read in part;

“to the danger and impolicy of leaving in the hands of the Colonial Judges the power to declare the Acts of the Parliament illegal...We, therefore trust that Your Magjesty will graciously relieve us from further suf­fering under this enormous evil...that it shall not be competent for any Judge of the Courts of the Provi­dence to call in question the validity of an Act."

A draft bill was annexed to the address as an example as what was wanted in the colony. Clause 8 of the bill provided; A copy of any Act of the said Parliament, certified by the Clerk of the Legislative Council, or by the Clerk of the House of Assembly, to be a true copy of such Act, and that it has been consented to by the Gov­ernor, shall be received in all Courts as absolute proof that such Act has been duly and properly passed, and that the said Act is within the powers of the Legislature, and has been duly assented to: and a copy of the Bill of the said Parliament, certified by Clerk of the Legislative Council or by the Clerk of the House of Assembly, to be a true copy of such Bill, and that the same has been reserved by the Governor for the signification of Her Majesty’s pleasure thereon, shall be received in all Courts as absolute proof that such Bill has been duly and properly passed and is within the powers of the Legilature, and has been duly presented to the Governor. And any proclamation of the Governor appearing in the South Austra­lian Government Gazette, notifying the disallowance by Her Majesty on any Act theretofore assented by the Governor in the name and on behalf of Her Majesty or notifying Her Majesty’s assent to any Act which may have been, or may be, reserved in all Courts as absolute proof of such disallowance or as­sent.” (South Australian Parliamentary Papers No. 142 House of Assembly 12-13 (1864)

In response to the address by the South Australian Parliament, the Colonial Law Officers in England gave another legal opinion which affirmed their previous opinion. In opinion 275 (September 28, 1864) the first question was;

“Under what circumstance is a law passed in South Autralia to be deemed invalid on accout of its repug­nancy to the law of England?”

The answer;

“Mr Elliot was further pleased to state that this question was explicitly treated in an opinion given by Sir William Atherton and Sir R. Palmer on the 12th April 1862, and printed in the annexed parliamentary papers, which exhibit in some degree the origin of the present dispute. But as that opinion is not binding on Colonial Judges, he was to request our opinion whether or not...it would be advisable by Imperial Legislation to extend to the Australian Colonies...the provisions...to the effect that no Colonial law shall be deemed invalid unless it is repugnant to some Imperial Act, which by express enactment or by neces­sary intendment extends to the Colony in which such Colonial law is passed”.

To placate the whinging South Australian Parliament and to stop the technical objections of Boothy, the Colonial Laws Validity Act was passed. Several things must be noted about the Colonial Laws Validity Act.

First, the Act did not remove the power of judicial review.

Second, it did not incorporate the Clause 8 as prepared by the South Australian Parliament.

In fact sec­tion 6 (apparently the result of the requested Clause 8) of the Act only refers to the clerk’s certificate as “prima facie evidence” that a bill was “duly and properly passed” and completely disregards any con­cept that it is “within the power of the legislature”.

Third, the Act did not remove any power to declare an Act invalid because it was contrary to the Consti­tutional law of England, nor did it remove any power to declare an Act invalid because it was contrary to the natural law of fundamental principles of English law.

It appears from the last two paragraphs of the Opinion No. 275 (September 28, 1864) that the Act was in response to the “technical objections” taken by Boothy. This was not only the purpose expressed in the opinion, but a purpose that logic would dictate, obviously the security granted under English Con­stitutional law and the fundamental rights of British subjects were not going to be compromised by the personality confict between a colonial parliament and a single Judge.

Boothy, true to his namesake, continued to put the boot into Parliament. Perhaps it could be argued by some that he could have tempered his comments more. Be that as it may, after the third attempt of the South Australian Parliament in 1866 to remove Boothy from office was unsucessful (neither of the suces­sive Secretary of State for the Colonies’ would advise the Queen to remove Boothy) the South Australian Parliament used the “Burke’s Act” to remove him. Before his appeal to the Judicial Committee of the Privy Council, he unfortunately died.

AFTER THE COLONIAL LAWS VALIDITY ACT

In a case immediately after the passage of the Act, Judges of the Queens Bench considered the question of whether or not, under the Colonial Laws Validity Act, Colonial legislation could be declared void if it was in conflict with the fundamental constitutional enactment, or to the natural law.

The case of Phillips -v- Eyre 1870 Q.B. 1, dealt with the issue of the validity of a piece of legislation subject to the Colonial laws Validity Act. It was argued that the Act in question was contrary to the prin­ciples of English Law (page 20.8). The Court entertained two lines of argument, one, that it was contrary to some positive law and, two, that it was contrary to some principle of natural justice. In the decision regarding the invalidity to natural justice the Court went on for nearly five pages of discussion of retro­spective legislation (page 23-28) and found that the Act as not contrary to a principle of natural justice.

It is perhaps one of the legacies of the “dark age” of statutory interpretation that Judges in subsequent cases, did not avail themselves to the background information about the Colonial Laws Validity Act. As a result of a lack of information and the teaching of the “Sovereign Parliament” theory, it is submitted that a distortion occured in the interpretation of the Colonial Laws Validity Act. This distortion did not only occurr with the judge who denied themselves information, but apparently with academics as well.

For example. R.D. Lumb in his book entitled The Constitution of the Australian States (4th Edition, St Lucia, Q. University of Queensland press) while discussing the Colonial Laws Validity Act at page 91.5 indicates that:

“No colonial law was to be void on the ground that it was repugnat to the fundamental principles of English law.”

He then cites S.3 as the authority, nothing more.

In another of his books Australian Constitutionalism (Sydney, Butterworths, 1983) while discussing the Act he states at page 46.4:

“The principle of Imperial hegemony was reflected in the doctrine of repug­nancy, a doctrine which, before the enactment of the Colonial Laws Validity Act (1865) extended beyond paramount statutes to certain ‘fundamental principles of British law”.

He doesn’t give any authority as to the demise of such a theory, but leaves it to the reader to infer that something, perhaps S.2 or S.5 is the authority.

It was these books and others (such as Dicey) which were used as the text books of many of the members of the legal proffession of Australia. The result to the rule of law would be predictable.

THE MYTH OF THE SOVEREIGN PARLIAMENT

The other aspect which had a great affect to the rule of law in the 19th Century occured with the re-as­sertion of legal positivism, in paticular, the theory of the “Sovereign Parliament”.

It is submitted, that the majority influence of this new theory was to undermine all the sacrifices of nu­merous generations of the English people. It reduced the great English heritage of freedom, back to the age before law to the age of power. It has placed the Commonwealth countries on a road which will inevitably give it an equality of despotism with the governments of China, Russia and other legal positivist countries.

It is submitted, that legal positivism is not objectionable per se. Many aspects of legal positivism, such as the irrebutable presumption that the registered owners of vehicles are deemed responsible for parking tickets, are completely reasonable. Since such matters are acceptable because they are reasonable it should be apparent that acceptable aspects of legal positivism are under the natural law of reason. That is legal positivism is subject to the natural law.

John Austin’s work, “Lectures on Jurisprudence” had a significant influence in the development of the “Sovereign Parliament” theory. To Mr. Austin’s credit was his analytical approach to try and get a sys­tematic arrangement out of the constituent parts of law, that is, the logical arrangement between various legal propositions. The starting point for Mr. Austins theory was his own limited version of a society. All his propositions re­late only to his hypothetical society, he did not deal with any other aspects of a society other than the one he postulated. As he never went beyond those aspects, he was only saying that his analysis was directed to the society he had used as a model.

Unfortunately, that “starting point’ for his analysis was to become something more that it was intended to be. It appears that Mr. Dicey used Mr. Austin’s limited version of a society as his mould in which he was to reform the English system of government - the “Sovereign Parliament” theory.

Dicey attempted to cite various authorities in his work to support this reformation, unfortunately, in order to achieve the results he wanted he had to “stretch” the truth to an uncomfortable dgree.

For example, Dicey (as did Blackstone) cites Sir Edward Coke’s comments at page 36 in his “Fourth Institute” as supporting the Sovereign Parliament theory. However, the “Fourth Institute” was concerned with the jurisdiction of Courts and the chapter quoted from was entitled “The High Court of Parliament”. Coke obviously was referring to the power of Parliament in the form of adjudication, not legislation.

What Dicey omitted to put in his student text was Coke’s many other comments. Such as Coke’s dictum in Dr. Bohnam’s Case 77 ER 646 at 652;

“it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parlia­ment is again common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void”.

Dr Coke’s confrontation with James 1, wherein he risked being beheaded by asserting Bracton’s com­ments that the Common Law protected the King, not that the King protected the Common Law. (Case of Prohibition (1607) 12 Co. Rep 63)

Or Coke’s comments during the drafitng of the Petition of Right of 1627, wherein he stated "'sovereign power' is not a parliamentary word. In my opinion, it weakens Magna Charta, and all of our statutes, for they are absolute, without any saving of sovereign power...Magna Charta is such a fellow that he will have no sovereign." (3 St. Tr. 193)

Clearly, Sir Edward Coke, (who sat as Chief Justice to the Kings Bench, Chief Justice to the Common Pleas, and later leader of the Opposition in Parliament) did not consider that Parliament had any more power than the Sovereign itself. This power recognised the distinction between “malum in se” and “malum prohibita”, between law and statute. The King might dispose of a statute that was “malum pro­hibita”, but his power did not extend to the common law, nor to acts declaratory of the common law. (C. H. McIlwain, “The High Court of Parliament and its Supremecy”, New Haven 1910, 311; see aso Thom­as -v- Sorrell Vaughan 330, ER 124)

Likewise, Dicey quoted Sir Mathew Hale’s comments on supremecy of parliament. However, it was apparent from Hale’s writings that he considered parliaments’s law-making powers as the King’s pow­ers.

“In him resides the power of makeing Lawes The Laws are his Laws encacted by him”, yett there is a certain solemnite and Qualification of that Power, namely with the advice and assent of the 2 houses of Parlemt., without which no Law can made” (Holdsworth, Hale on Hobbes, appendix 296-7).

What is so apparent from reading “The Law of the Constitution” is that Dicey does not support this theory with even one credible piece of authority (The Rule of Law G. Walker, Melbourne University Press, 1988 Chapters 4 & 5) Dicey simply state it is as a fact.

The “Sovereign Parliament” theory is inconsistent with the authorities of Engish legal theory and logicially inconsistent. It has been said of this school teacher’s lessons to vulnerable students that the “Sovereign Parliament” theory is; “A simple theory, for simple minds, that simply doesn’t work”

It is put forth the basic proposition that a stream cannot rise higher than its source. Likewise, with Sov­ereign Parliament taking over the position of the former Sovereign, it cannot take over powers that the former sovereign did not have. As the former Sovereign was required to respect the fundamental rights of the people, so too is the present Sovereign. The present sovereign simply steps into the shoes of the former sovereign in the fundamental documents of the Constitution.

It is submitted, that this theory is consistent with English history, consistent with the legal authority and logically consistent. The Court, however, may be reluctant to adopt an interpretation which is different than that which has been taught in school.

Recognising the stress and reluctance that this could cause, the Court could take comfort from the High Court’s decision in Cole -v- Whitfield (1988) 62 ALJ 303.

In that case the Court was confronted with a Section 92 argument under the federal constitution. The Court, lifting itself from the “dark age” of statutory interpretation, looked at the history of the constitution­al debates to find out the nature and objectives of the section (page 307F-311B). The analysis culminat­ed on page 315D with;

“What we have said explains some of the reasons why the criterion of operation ceased to command the acceptance of members of the Court, with the consequences that we do not see ourselves as con­strained by authority to accept it.”

Essentially, this single decision of the High Court rewrote the preceding 80 years of High Court authority on Section 92 of the Australian Constitution. Although the Court felt that reference to the Commerce Clause of the American Constitution did not assist the Court (page 316A), it is interesting that the Ameri­can Supreme Court has travelled a similar path of interpretation (316A-G) as the High Court.

Interesting also that both Courts have adopted the same interpretation for their respective sections (316G). Perhaps brilliant minds think alike.

AUSTRALIAN CASES APPARENTLY AGAINST CONSTITUTIONAL RIGHTS

There are a few Australian cases which could be interpreted in favour of strict legal positivism and against the position that Australians have constitutional rights and the powers of Parliament are not un­limited.

GHIA GEE

The High Court case of Ghia Gee Anors -v- Martin 3 CLR 649 is cited in the Australian Digest as the sole authority on the Magna Charta. The part relied upon is on page 653.0-2 wherein there is one sentence by Griffith C.J.,

“The contention that a law of the Commonwealth is invalid because it is not in conformity with Magna Charta is not one for serious refutation.”

It is only because of within the context of the case that it appears that the Judge does not believe the Magna Charta has any value, otherwise the statement could easily be construed to mean that the Mag­na Charta is of such paramount importance in English and Australian law that no one could seriously refute such a proposition.

Unfortunately, the Judge never explained himself or offered authority for his statement. It also appears that no other subsequent case has bothered to use it as authority for anything.

It is interesting that the 1297 confirmation of Magna Charta in Cap.II states:

“And we will, that if any Judgement be given from henceforth contrary to the Points of the Charters aforesaid by the Justices, or by any other our Ministers that hold Plea before them against the Points of the Charters, it shall be undone, and holden for nought.”

The history of the Magna Charta was a superior instrument that was used many times to declare statutes and judicial decisions void. The Magna Charta has been around for a long time, it is doubtful that Griffith C.J. really meant to discard the Magna Charta from Australian law with his one ill-thought out coment.

FISCHER -V- DOUGLAS

The Queensland case of Fisher -v- Douglas ex parte Fischer [1978] Qd.R. 27 at 45, is a typical “sov­ereign parliaent” argument. No authority to support the position, no reasoning process to support the position, the “sovereign parliament” is just taken as fact. The judge state at 45C:

“In Queensland, because of the sovereignty of Parliament, the subject does not have guaranteed rights. Those who describe themselves as the champions of civil liberties frequently speak of such liber­ties as though there were no such thing as the sovereignty of Parliament; and, when they address them­selves to the uncomprehending and the emotional, they may consequently mislead their audience.”

Should the court find favour with the arguments herein submitted, it would be expected that the Court would not take any of the comments from the Fischer case personally. It is submitted, that at least the Fischer case would be easy enough to distinguish, as the inital qualifaction was, “In Queensland”.

It should also be noted that one does not dispute the conclusion in Fischer, only the dicta.

GRACE BIBLE

In Grace Bible Church -v- Reddman [1984] 36 S.A.S.R 376, the Court dealt with the right to freedom of religion and the powers of the State. It appears that the judges relied upon the shakey foundation of Dicey as their authority. Various comments throughout the case could be seen to assist the respondent, but may be distinguished in various ways.

The first is at 380.1 where Zelling J. states that “on the face of it” the statement of Bracton is a reference to the Monarch and not to the Parliament. Zelling J. did qualify his statement correctly, however, there is no reason that the statement of Bracton could not be applied to any government under law.

White J. at 385.4 made comments about Parliament exercising its sweeping powers over fundamental rights of individual. This is correct, all the fundamental rights can be regulated by Parliament, it is submit­ted that it is a balancing act between the fundamental rights and the compelling interests of the State.

As the paragraph at page 385.5 there are comments about the absolute power of the State and the questioning of legal philosophers. Since the development of the “Sovereign Parliament” theory was a product of academics the comments are somewhat irrelevant. It should be noted, contrary to the judges statement, that the common law of England as it existed in 1836 did provide for constitutional funda­mental rights. Lasty the plenary power of a Parliament to make laws for the peace, welfare and good government (ie: police powers) is not in dispute. The Courts cannot inhibit (ie: injunct) the power of the Parliament from making a law. It is a different question however as to whether it is a valid law, that is a question that is up to the Courts to decide.

At page 387, White J. continues and correctly indicates that policy is a matter for the Parliament to consider and that on questions of power the Courts have the written Constitution to guide them. He then correctly indicates that the Courts are not the guardian over the manner of the Parliament’s exercise of its powers, however, he omitted to mention the Courts position as the guardian of the individuals rights. He then uses an emotional and somewhat uncomprehensible (see Fischer, supra) argument about every­man’s opinions. He then finishes the paragraph with the “political solution” argument, that is, the sub­stitution for all the individual rights with the single right to vote for the party of your choice (which party? blue with white stripes or white with blue stripes?)

At page 388.2 he continues with the fact that the common law has supported the supremacy of the Parliament (which it has since 1688 over the King). Then he states the common law did not give power to the Court to declare an Act invalid because it infringes or impinges upon the relgious freedom, he did not address whether the common law had granted the power to declare an Act invalid because it un­duly infringed or detroyed the freedom. However, it is conceded that in regards to religous freedom that the common law has a checkered past, and perhaps that common law history of religion was what the Judge was reffering to.

Millhouse J. correctly points out the fundamental problem with the appellant’s case was the “Sovereign Parliament” theory (as it so often is) and then goes on to point out some of the problems in legal training in South Australia (page 389.8-390.4)

At page 390.6 he uses the discredited “Bill of Rights” argument (see “The Natural Law Background of Due Process”, Columbia Law Review 31: 56-81), then states the citizens of South Australia do not have rights which may be over-ridden by Parliament, this is unclear as to whether he means by infringement or destroyed. He too finishes with the “political solution” argument.

It is here that one does not dispute the conclusion of the Court in Grace Bible only the grounds. From the fundamental rights perspective it does not seem that the law was an undue infringement upon the freedom of religion. As a side note, it appears that freedom of religion was recognised in dicta in two early cases in NSW. (Ex Parte The Rev. Geo. King, supra at 1321.3 and Regina -v- Robers, 1850 1 Leg­ge 544 at 571.2)

ENGLISH AUTHORITY APPARENTLY AGAINST CONSTITUTIONAL RIGHTS

Many legal positivists will reach back as far as 1606 in a House of Commons debate (2 St. Tr. 482) in which James Whitlocke (Yelverton in the official report) was alleged to have suggested the theory of par­liamentary sovereignty. The passage the legal positivists rely upon is from 482.2-482.8.

However, a reading of pages 481.9-482 of the report states this in regards to what the King had done;

“ I think he cannot; and I ground my opinion upon these four reasons. -1. It is against the naturall frame and constitution of the policie of this kingdome, which is jus publicum regni, and so subverteth the fundamental law of the realme, and induceth a new forme of state and government. -2. It is against the municipall law of the land, which is jus privatum, the law of property and of private rights. -3. It is against divers statutes made to restraine our king in this point. -4. It is against the practice and action of our common-wealth, contract morem majorum; and this is the modest rule to limit both king’s preroga­tives, and subjects liberties.”

It appears this speech in the House of Common which the legal positvists claim as support, actually supports constitutional rights, and the limitations of a sovereign to infringe upon those rights. Whatever power the “king in parliament” had, it was still to be subject to the “fundamental law of the realme”.

Further, by going back to page 479.2 there is this:

“for it is a question of our very essence; not what we shall be called, nor how we shall be divided that we have, but whether we shall have any thing or nonthing; for if there be a right in the king to alter the property of that which is ours without consent, we are but tenatnts at his will of that which we have. If it be in the king and parliament, then have we propertie, and are tenants at our own will; for that which is done parliament is done by all our wills and consents.”

As can be seen by this passage, at the time of this speech the parliament was not considered a sovereign body, but the representative of the people of England. This supports the positon that the word “parlia­ment” in the early documents is not a sovereign body, but the people of England.

LEE -V- BUDE AND TORRINGTON

The classic case that the legal positivists use as the foundation for the demise of the natural law is some dicta in Lee -v- The Bude and Torrington Junction Railway Company [1871] L.R. Vol. 6 576. The dicta of Wiles J. at 582.3 is the revelant passage wherein he referred to Coke’s comments in Bonhams Case which were referred to in Day -v- Savage Hob. 87.

The judge qualifies his statement that the dicta “stand as a warning, rather than an authority to be fol­lowed”. It is submitted. that the dicta of Wiles J. is correct to this extent, it does stand as a warning. The Courts have declared Acts of Parliament void before and they will damn well do it again.

It should be clarified that one does not agree with the judge’s comments about, “We sit here as servants of the Queen and the legislature.” This passage is contrary to the Constitutional basis of the judiciary. In Magna Charta it is stated “We will sell to no man, we will not deny, to any man, either Justice or Right”. The judiciary is more than mere servants of power.

Further, in the Act of Settlement 170, the judiciary was formally given an independence from the pow­er section of government. The “servants” dicta is also contrary to another legal positivisit’s case Duport Steels Ltd. -v- Sirs [1980] 1 W.L.R. 142 at 157B where Lord Diplock states:

“It cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based upon the separartion of powers; Parliament makes the laws, the judiciary interpret them.”

What may be a rather extraordinary aspect of Wiles J. comments, is that 5827 he states, “Having ne­glected to take the proper steps at the proper time to preen the Act from passing into a law, it is too late now to raise objections to it.” It is not indicated what the “proper steps” were that the judge was contem­plating, however, with all due respect to the judge, it is submitted that the Courts cannot intefere with the operation of Parliament and the making of laws. Perhaps, the judge meant that the plaintiff should have divined that the events were occuring without his knowledge (see page 577.7 paragraph 15) and ap­proached the various members of Parliament “at the proper time” and made submissions to them about the various matters of which he had no knowledge. (??)

DUPORT STEELS -V- SIRS

In Duport Steels Ltd. -v- Sirs, supra, at page 157B-F Lord Diplock made some comments that have been relied upon by legal positivists. However, it appears that Lord Diplock is cautiously moving away from strict legal positvism. It is refreshing to see an English Lord make the comment that the constitution is based upon the separa­tions of powers. At 157D he uses three words of interest; “inexpedient, or even unjust or immoral”. Unfortunately, we are not given a factual situation with which we can associate those words. As will be submitted later, even torture (immoral) could be acceptable under the Constitution in an appropriate case.

At 157F he states “it is for Parliament, not for the Judiciary, to decide whether any changes should be made to the law as stated in the Acts”. Disregarding some aspects of interpretation, this statement is correct, the judiciary does not change legislation, however, it can declare it void.

PICKIN -V- BRITISH RAILWAYS

In Pickin -v- British Railway Board [1974] A.C. 765 at 782 Lord Reid stated this well known passage;

“The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution, but a detailed argument has been submitted to your Lordships and I must deal with it. I must make it plain that there has been no attempt to question the general supremecy of Parlia­ment. In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregared in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has be­come obsolete.”

It is doubtful that Lord Reid really meant that “nature” would not be able to disregard a Parliamentary law regulating the weather, although it does seem that many advocates of the “Sovereign Parliament” theory would support this view. It appears that Lord Reid’s position denies the existence of the natural law or fundamental rights of the citizen. This change in English history is based upon a curious twist in logic that has allowed the new sovereign, the Sovereign Parliament, to usurp those rights. However, the strength of conviction of the English people to the existence of their fundamental rights is best illustrated by the Magna Charta and the Bill of Rights of 1688.

Both of these documents were products of the people, forged from revolutions, they were not statutory products of the parliament. Those documents declared fundamental rights and principles that the government was to respect if the government wished to keep power. The people did not give the government the right to abrogate those rights simply by allowing the government to ratify those documents. The concept of those documents was a curtailment of tyranny by the sovereign.

Lord Reid’s comments are logically inconsistent in that in his view the documents gave tyrannical power to the new sovereign - the sovereign parliament. The statement of Lord Reid is inconsistent on its face, the Bill of Rights of 1688 is a Bill of RIGHTS of the people. It appears that literal statements made in the Bill of Right may have been relied upon without serious thought given to the history of the period. For example, in the opening provision it states:

“That the pretended power of suspending of laws or the execution of laws by regall authoritie without consent of Parliament is ilegal”

The references to Parliament in the early legislation are anlogous to the people of England, and not to a sovereign body. In the early documents the sovereign was the King or Queen, and today in Australia even if the parliament were sovereign, it would be merely stepping into the shoes of the sovereign in those early documents. Therfore, the Sovereign Parliament would not only be exercising the rights and duties of the early sovereign, but would also be subject to the restrictions and liabilities of the former sovereign.

This line of reasoning is not only logically consistent, but was originally touched upon by Judge Moore in R. -v- McConnel (1985) 2 NSWLR 269, as stated in that decision:

“Both Coke and Stephen’s commentaries on the Laws of England, 7th ed (1874) vol II at 469 affirm the Magna Charta was for the most part declaratory of the principle grounds of the fundamental laws of England. Stephen (at 470) states that the Bill of Rights itself recognises that the rights asserted therein are the “true, ancient and indubitable rights of the people of this Kingdom”.

It is the duty of the courts to promote constitutional rights: R -v- Secretary of State for Home De­partment: Ex Parte Phansokar [1976] KB 606 at 626 per Scarman L.J. A constitution, and in particular, that part of it which protects and entrenches fundamental rights and freedoms, is to be given a generous and purposive construction: Attorney-General of Gamia -v- Jobe [1984] 1 AC 689 at 700 (Privy Coun­cil).

Magna Charta and the Bill of Rights of 1688 were declarations of the rights of the citizen, they are claims of rights, not a request. Declarations of existing rights are significantly different from common statutes. The early 19th Century cases in NSW make this point clear time and again.

For example in 1839, Ex Parte Nichols 1 Legge 123 at 131:

"The statute at once professed to be declaratory, and...was suffered to pass as a decalatory Act. Mr. Fox, in his introductory speech, expressly characterised it as a declaratory bill;...if the committee were clear as to the law on the subject, he thought their wisest and most proper measure would be, to enact a declaratory law respecting it. If the committee were of opinion that the high authorities (namely the judges) on the other side of the question made the law doubtful, they might settle the law on the subject in the future, without any regard to what it had been in times past...This bill was not debated as a party question, but as a subject of existing law, justice, and constitutional rights”.

Also in that case, although part of the decision of Stephen J. was lost the commentator at page 139 indicated that Stephen J. regarded the statute “as declaratory; or in other words, though of no value as an enactment, yet decisive as a legislation affirmation of a fact, as an authoritative statement, that the privilege claimed in this case always existed."

The High Court of Australia has noted these declarations of fundamental rights as being part of the “law of the land”, for example in Regina - v- Bolton: Ex Parte Beane, 70 ALR at 230 Justice Brennan stated:

“Many of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statutes which are so much of the accepted constitutional framework that their terms, if not their very existence, may be overlooked until a case arises which evokes their contemporary and undi­minished force”.

Justice Deane at page 236 expressed similar thoughts:

“It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny”.

Obviously, they would not be much of “bulwark” if the new sovereign could simply treat them on the same footing as the “Dog Act”. Unfortunately, this approach was suggested, but thankfully not decided in another case.

COBB -V- KROPP (Queensland)

In Cobb & Co. Limited Anors -v- Kropp [1965] Qd. R. 285 there was dicta in regards to subsequent legislation which could be inconsistent with the Bill of Right of 1688. The legislation was not inconsistent so the position of the Bill of Rights was not decided. At page 228.7 the defendant relied upon various authorities to support the proposition that “In any case the Bill of Rights has no greater efficacy that any other Act of Parliament”. Unfortunately, for the defendant, none of the authorities cited supported that position.

That did not stop the Court from making some rather interesting dicta. At page 292.2 Stable J. consid­ered the Bill of Rights a common statute. It is unclear from his statement why he held such a view, as he did not want to entertain the question.

Gibbs J. at 298 expressed similar comments about the Bill of Rights being a common statute. Howev­er, with his view about the lack of inconsistency between the two documents, the question of repeal by inconsistency did not have to be further examined.

Hart J. at 301.9 - 302.5 made some comments about the statutes and constitutions. It appears that the judges in Queensland consider the Bill of Rights as not forming part of the Constitution of Queensland.

It is submitted, that this is not the case in Victoria as it is not the case in NSW. The early NSW cases indicate that the fundamental documents such as Magna Charta, Petition of Right, Statute of Monopolies, Bill of Rights, Habeous Corpus Act - all were considered part of the Constitution of the Colony of NSW. If any doubt ever existed then the Parliament itself has settled the matter by declaring such documents as part of the Constitution in the Imperial Laws Validity Act 1969. In Victoria The Constitution of the Colony of Victoria was drafted in Melbourne by Victoria’s first Legislative Council in 1853-54, where it was thereafter sent to England and approved by the British Parliament in 1855, existing solely as an Act of the British Parliament until the 22nd of October 1975 when the Constitution was proclaimed as an Act of the Parliament of Victoria. Under The Constitution Act 1975- Section 3, it is clearly stated that the laws of of England are to be applied in the administration of justice.

CONCLUSION.

When one examines the history of NSW, and Victoria, it becomes apparent that the people of these colo­nies had fundamental constitutional rights at least until the mid-1800’s. If the people lost such significant rights one would expect some significant event to herald such a loss. If such an event occured, what was this event? When did it happen? Why did it happen? Who did it, and under what authority?

Obviously, such an even never occured. As such the people Victoria like the people of NSW still have their fundamental constitutional rights as Subjects of the Queen, and English freemen.

The plantiff pleads that the workers vaccine mandates are ultra vires the Constitutional Enactments of NSW as indicatd in the Imperial Laws Application Act, 1969 No. 30, Second Schedule, Part 1 (Application Act), and are ultra The Constitution Act, 1975, Section 3. Specifically, that the work­ers vaccine mandates are ultra vires the Magna Charta (1297), The Charter of Liberties (1100), The Liberty of Subject Act (1354), Statute of Monopolies (1623-4), Petition of Right (1627) and Bill of Rights (1688)

THE RULE OF LAW

In Australia, it is important that all people, including members of government are bound to uphold the Rule of law. But what is the Rule of Law? While there is no single agreed definition of the rule of law, there is a basic core definition that has near universal acceptance. As Emeritus Professor Geoffrey Walker, has written in his defining work on the rule of law in Australia:

"…most of the content of the rule of law can be summed up in two points: that the people (including, one should add, the government) should be ruled by the law and obey it and that the law should be such that people will be able (and, one should add, willing) to be guided by it." Geoffrey de Q. Walker, The rule of law: foundation of constitutional democracy, (1st Ed., 1988)

As such all government agents, administrators, officials public authorities and actors have a lawful, legal, moral, ethical and constitutional duty to uphold the Rule of Law.; where "First Do No Harm" - "Primum Non Nocere" - is a fundamental duty of medical ethics and law and is a maxim of common law, domestic and international laws and God's laws that binds them, as it binds all people. "Do No Harm" means that one must not act to cause harm, nor must one omit to act to prevent harm from happening; and whereas, omitting to act to prevent harm is as culpable as acting to cause harm. From Black's law dictionary:

"What is OMISSION?

Failure to complete a duty or task, usually as a result of apathy, complacency or neglect."

https://thelawdictionary.org/omission/#:~:text=Failure%20to%20complete%20a%20duty,of%20apathy%2C%20complacency%20or%20neglect.; and

THE RULE OF LAW - Human Civil, Spiritual and other Rights and Liberties

We are each Sovereign Human Beings

WHEREAS, it is a fundamental principle of the Rule of Law that human beings are born free and equal in dignity and rights. We are each and every one of us Sovereign human beings with inalienable, fundamental, natural Human Civil, Spiritual and other Rights and Liberties which cannot be derogated from.; and

We are each Equal under the Rule of Law and No One is above the Law

WHEREAS, a core principle of the Rule of Law is equality i.e. We are all equal in the eyes of God and are equal under God's laws. We are all equal under the Rule of Law and no one is above the law, including the Crown - "Rex Debet Esse Sub Lege, Quia Lex Facit Regem" - "The king should be subject to the law for the law makes the king."

https://www.duhaime.org/Legal-Dictionary/Term/RexDebetEsseSubLegeQuiaLexFacitRegem; and

NON-DEROGABLE RIGHTS

WHEREAS, inalienable, fundamental, natural Human Civil, Spiritual and other Rights and Liberties are enshrined in the Rule of Law and binding on the Crown and its Successors in perpetuity and cannot be derogated from - even in a public health emergency threatening the life of the nation or in warfare - other than in lawful acts of war - (see the following current law including, but not limited to: the Charter of Liberties (1100), the Magna Carta (1297), the Confirmation of the Charters (1297), the Confirmation of the Charters and Statutes (1416), Confirmation of Liberties (1423), the Liberty of the Subject Act (1354), the Habeus Corpus Act (1679), the Bill of Rights/Act (1688), the Human Rights Act (1998), the Equality Act (2010), the Universal Declaration of Human Rights (1948), the European Convention on Human Rights (1950), the International Covenant on Civil and Political Rights (1966),and paragraph 58 of the Siracusa Principles, the International Covenant on Cultural, Social and Economic Rights (1966), the Oviedo Convention (1997), the International Covenant on Human Rights and Bioethics (2005), the Rome Statute of the International Criminal Court, the International Criminal Court Act (2001), the Offences Against the Person Act (1861), the war Conventions.

There are other limits placed on the claimed right to derogate from these fundamental inalienable natural human rights in various legal instruments.

https://www.icj.org/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf; and

The Charter of Liberties (1100) - Liberties granted by the Crown, binding the Crown and the Crown's Heirs "in perpetuity" i.e. for ever.

WHEREAS, the Charter of Liberties (1100) was issued by King Henry I on his ascension to the throne of England, at London on his Coronation. Henry I swore a Coronation Oath to We the People at his Coronation to uphold the law (including, therefore, the Charter of Liberties (1100). The fact of its existence and the wording thereof of the Charter of Liberties (1100) was confirmed by King Edward I in paragraph 1 of the Great Charter of the Liberties of England, and of the Liberties of the Forest (1297) CHAPTER 9 25 Edw 1 cc 1 9 29.- (short title: Magna Carta (1297) which states that King Edward I had "seen the Great Charter of the Lord Henry sometimes King of England" of the "Liberties of England" as follows:

"EDWARD by the Grace of God King of England, Lord of Ireland, and Duke of Guyan, [to all Archbishops, Bishops, &c.] We have seen the Great Charter of the Lord Henry [1100] sometimes King of England, our Father, of the Liberties of England in these words:..."

https://www.legislation.gov.uk/aep/Edw1cc1929/25/9/paragraph/p1;

WHEREAS, the wording of the Charter of Liberties (1100) is cited in paragraph 2 of the Magna Carta (1297), which enshrines the Charter of Liberties (1100) into Statute law and remains current. The Charter enshrines the binding Covenant made by King Henry I (and his heirs and successors i.e. the Royal line - the Crown) to We the People to "give and grant" to "all Freemen of this our Realm" "these Liberties" to be "kept in our Kingdom of England" "for ever" i.e. in perpetuity. The Covenant was made "unto the honour of Almighty God" and "for the salvation of our souls" and "the souls of our Progenitors and Successors" i.e. the Royal line. The wording of the Charter of Liberties (1100) is as follows:

"HENRY by the Grace of God King of England, Lord of Ireland, Duke of Normandy and Guyan, and Earl of Anjou, to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, Sheriffs, Provosts, Officers, and to all Bailiffs, and other our faithful Subjects, which shall see this present Charter, Greeting:

Know Ye, that We, unto the honour of Almighty God, and for the salvation of [our souls and] the souls of our Progenitors and Successors [Kings of England,] to the advancement of Holy Church and amendment of our Realm, of our meer and free will, have given and granted to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, and to all [Freemen] of this our Realm, these Liberties following, to be kept in our Kingdom of England for ever."

https://www.legislation.gov.uk/aep/Edw1cc1929/25/9/paragraph/p2; and

WHEREAS, in the Charter of Liberties (1100), King Henry I restores the law of King Edward, subject to "amendments made to it by my father with the advice of his barons" and swears to "take away all the bad customs by which the kingdom of England was unjustly oppressed", and imposes a "strict peace" and commands that the strict peace be "maintained henceforth":

"Know that ... I, through fear of God and the love which I have toward you all" and "because the kingdom had been oppressed by unjust exactions"

"..I take away all the bad customs by which the kingdom of England was unjustly oppressed"

"12. I impose a strict peace upon my whole kingdom and command that it be maintained henceforth."

13. I restore to you the law of King Edward with those amendments introduced into it by my father with the advice of his barons."; and

https://archive.org/stream/pdfy-uS6dgJSBYfcMp3x_/The%20Charter%20Of%20Liberties%20Of%20King%20Henry%20I%20%281100%29_djvu.txt; and

https://www.legislation.gov.uk/aep/Edw1cc1929/25/9/paragraph/p1, and

The Carta Libertatum (1215) - (also known as the Magna Carta (1215))

WHEREAS, the “Carta Libertatum” (1215) or “The Charter of Liberties” (also known as "the Magna Carta (1215)") , was a Charter of Liberties made between King John I and the Barons of England on behalf of We the People, signed by King John I at Runnymede, England on 15th June 1215. The Carta Libertatum (1215) set out the laws which the king and everyone else had to follow. Chapter 29, reads:

“NO free man shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor [condemn him,] but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”

(translated from the original Latin)

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009; and

WHEREAS, the Carta Libertatum (1215) was annulled by the Pope shortly after it was signed but was reissued in (1216), (1217) by the King's regent and reissued in (1225) under the King's own Great Seal, thereby confirming the King's freely given consent to the Charter. The Magna Carta (1297) was enshrined in Statute law - including chapter 29 from the Carta Libertatum (1215) and remains current Statute law.; and

Habeus Corpus Act (1679)

WHEREAS, chapter 29 of the Magna Carta (1215) is enshrined further in current UK Statute law in the Habeus Corpus Act 1679 CHAPTER 2 31 Cha 2 which binds the crown to obeying the law and provided further security for the "Liberty of the Subject", The introductory text states that it is:

"An Act for the better securing the Liberty of the Subject and for Prevention of Imprisonments beyond the Seas."

https://www.legislation.gov.uk/aep/Cha2/31/2/contents; and

The Magna Carta (1217)

WHEREAS, in the speech of Justice Stephen Rares of the Australian Judiciary "Why Magna Carta Still Matters", from the Judicial Conference of Australia Colloquium, Adelaide, 9 October 2015, Justice Rares states that the story of the Magna Carta is "beautifully told" by the former Lord Chief Justice of England and Wales, Lord Igor Judge and Anthony Arlidge QC in their book published in 2014 - "Magna Carta Uncovered". (2014) Hart Publishing, Oxford and Portland. This source cites the fact that three subsequent charters were issued following the Magna Carter of 1215 as follows:

"[5] Pope Innocent III issued a papal bull, as King John always intended would happen, annulling Magna Carta less than 10 weeks after it had been granted on 15 June 1215.

[6] In essence, much, but not all of the 1215 Charter was used as the foundation for three subsequent charters issued in the nine years after King John’s unlamented death from dysentery in October 1216."

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009; and

Magna Carta (1216)

WHEREAS, King John I's son, Henry III ascended to the throne as an infant on his father's death in October 2016. The Earl of Pembroke, William Marshal, was appointed regent pending Henry III's Coronation. Marshal and the Papal legate reissued an amended Magna Carta in November 2016.

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009 - para [7] ; and

Magna Carta (1217) and the Charter of the Forests (1217)

WHEREAS, the regent and papal legate sealed two charters issued under the name of the infant king Henry III - the Magna Carta (1217) and the Charter of the Forests (1217). The historical significance of the 1217 charters is that, unlike those of the two previous years, these were issued without the king, or his regent, being under duress or threat. They, therefore, gave the King’s promises and concessions freely

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009 - para [9] and [10]; and

The Magna Carta (1225)

WHEREAS, upon becoming an adult in February 1225, King Henry III reissued the Magna Carta (1225) under his seal - the Great Seal of Henry III - binding himself and his heirs "in perpetuity". The authentication with the Great Seal of Henry III removed, once and for all, any suggestion that the Magna Carta's liberties were the product of coercion. In exchange, the People agreed to a "tax on moveables" to fund the King's campaign to defend his lands in Gascony, France. The Magna Carta (1225) is a legally binding contract between the Crown and We the People, with financial consideration paid by We the People for the benefit of the Rights and Liberties granted under the contract. This legal position is confirmed in the Magna Carta (1297) which is current statute law (see below).

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009 - paragraph [10]; and

https://www.bl.uk/collection-items/magna-carta-1225; and

WHEREAS, the UK Government states that the "Magna Carta set out the laws which the king and everyone else had to follow" and that "Copies of Magna Carta were sent out to be read out in each county of England so that everyone knew of its existence."

https://www.parliament.uk/about/living-heritage/evolutionofparliament/originsofparliament/birthofparliament/overview/magnacarta/magnacartaclauses/; and

WHEREAS, chapter 1 of "The Great Charter of the Liberties of England” - Magna Carta - (1225) provided that the King had:

“granted to all free-men of our kingdom … for ever, all the liberties written out below …”.

This Covenant was incorporated into chapter 1 with the King’s Covenant that the Church of England should be free and “shall have all her whole Rights and Liberties inviolable.”

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009 ; and

WHEREAS, under the Magna Carta (1225), all merchants, unless publicly prohibited beforehand, could safely and securely enter, leave and travel through England by land and water to buy and sell, without any unjust exactions, except in time of war- an early recognition of the importance of, relatively, free trade and movement.

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009 ; and

WHEREAS, chapter 9 of the Magna Carta (1225) granted, first, the City of London all its old liberties and customs and, secondly, gave the same to all of the cities, boroughs, towns and the Barons of the Five [or Cinque] Ports. This is current law, as enshrined in current Statute law under section IX of the Magna Carta (1297) as follows:

"IX Liberties of London, &c.

THE City of London shall have all the old Liberties and Customs [which it hath been used to have]. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, and all other Ports, shall have all their Liberties and free Customs."

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009 -para [17]

https://www.legislation.gov.uk/aep/Edw1cc1929/25/9/section/IX; and

WHEREAS, the concluding saving clause of the Magna Carta (1225) provided that:

“[A]nd if anything be procured by any person contrary to the premises, it shall be had of no force or effect”.

Thus, the King himself ensured, that by his own promise he would obey the law. This clause also provides that no law or action taken to derogate from the provisions of the Magna Carta (1225) would be legal and would have no legal effect.

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009 - para [22] ; and

The Magna Carta (1297) - THE GREAT CHARTER OF THE LIBERTIES OF ENGLAND, AND OF THE LIBERTIES OF THE FOREST

The Magna Carta (1297) is a legally binding contract between the Crown and We the People, with financial consideration paid by We the People of a "fifteenth part of their moveables" for the legally enforceable benefit of the Rights and Liberties granted under the contract.

The Magna Carta (1297) was granted "for ever" ie in perpetuity, thereby binding the Crown and its Heirs and Successors for ever.

It remains current Statute law.

WHEREAS, after 1225, monarchs regularly confirmed the Magna Carta, and Edward I confirmed the Magna Carta again in 1297 in the Confirmation of the Charters (1297) - in exchange for another tax on moveables provided by the People, thereby creating a legally binding contract "for ever" i.e. in perpetuity. The Magna Carta (1297) CHAPTER 9 25 Edw 1 cc 1 9 29 was entered on to England's statute roll book, where it remains as current Statute law.

https://www.legislation.gov.uk/aep/Edw1cc1929/25/9/contents

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009 - para [22]

https://www.bloomsbury.com/uk/search/?q=Magna%20Carta%20uncovered; and

WHEREAS, King Edward I at Westminster confirmed and granted the Charter of Liberties i.e. the "free Liberties" and "free Custom" which "they have had in time passed" to "all Persons"- entitled "THE GREAT CHARTER OF THE LIBERTIES OF ENGLAND, AND OF THE LIBERTIES OF THE FOREST" on the twenty-eighth day of March in the twenty-eighth year of his Reign - the "Magna Carta (1297)". It is current UK Statute law.

https://www.legislation.gov.uk/aep/Edw1cc1929/25/9/contents; and

WHEREAS, paragraphs 1 and 2 of the Magna Carta (1297) cite the Charter of Liberties (1100) inter alia:

"Know Ye, that We, unto the honour of Almighty God, and for the salvation of [our souls and] the souls of our Progenitors and Successors [Kings of England,] to the advancement of Holy Church and amendment of our Realm, of our meer and free will, have given and granted to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, and to all [Freemen] of this our Realm, these Liberties following, to be kept in our Kingdom of England for ever."

https://www.legislation.gov.uk/aep/Edw1cc1929/25/9/paragraph/p1,

https://www.legislation.gov.uk/aep/Edw1cc1929/25/9/paragraph/p2

; and

WHEREAS, section 1 of the Magna Carta (1297) states that King Edward I has "granted and given" to "all the Freemen of our Realm" thereby binding him and his heirs "for ever" i.e. in perpetuity these "Liberties" "for ever" - i.e. in perpetuity - as cited:

I Confirmation of Liberties.

FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable.

We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under- written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.

https://www.legislation.gov.uk/aep/Edw1cc1929/25/9/section/I; and

WHEREAS, section 29 of the Magna Carta (1297) states:

" XXIX Imprisonment, &c. contrary to Law. Administration of Justice.

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor [condemn him,] but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right."

https://www.legislation.gov.uk/aep/Edw1cc1929/25/9/section/XXIX; and

General Saving provisions of the Magna Carta (1297) - no right for the Crown or any person to derogate from a Person's "free Liberties" and "free Customs" which are "holden within this Realm".

- any such derogation to be null and void and of no effect

WHEREAS, the following "General Saving" provisions and the "Observance of these Liberties" remain as current UK Statute law. King Edward I "reserved to" "all Persons" their "free Liberties" and "free Customs" which the Crown had granted to be "holden within this our Realm". Edward I promised that he and his heirs will "observe the same against all Persons, in like wise." i.e. all persons are equal under the law. " In return, Edward I received consideration from the people a "Fifteenth Part of all their Moveables" thereby forming a legally binding contract. These provisions are found under the "wrapper" provisions of the Magna Carta (1297) inter alia:

"General Saving. Observance of these Liberties. Subsidy, in respect of this Charter and Charter of the Forest.

Reserving to all Archbishops, Bishops, Abbots, Priors, Templars, Hospitallers, Earls, Barons, and all Persons, as well Spiritual as Temporal, all their [free Liberties] and free Customs, which they have had in time passed.

And all these Customs and Liberties aforesaid, which We have granted to be holden within this our Realm, [as much as appertaineth to Us and our Heirs, we shall observe; and] all Men of this our Realm, as well Spiritual as Temporal, [as much as in them is, shall observe the same against all Persons, in like wise.]

And for this our Gift and Grant of these Liberties, and of other contained in our Charter of Liberties of our Forest, the Archbishops, Bishops, Abbots, Priors, Earls, Barons, Knights, Freeholders, and other our Subjects, have given unto Us the Fifteenth Part of all their Moveables.

And We have granted unto them on the other part, that neither We nor our Heirs shall procure or do any thing whereby the Liberties in this Charter contained shall be infringed or broken.

And if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect."

.....

We, Ratifying and approving these Gifts and Grants aforesaid, confirm and make strong all the same for Us and our Heirs perpetually, and by the Tenor of these Presents do renew the same:

Willing and granting for Us and our Heirs, that [this Charter and] all and singular his Articles for ever shall be steadfastly, firmly, and inviolably observed;

[and if] any Article in the same Charter contained yet hitherto peradventure hath not been kept [We will and by authority royal command from henceforth firmly they be observed].

In Witness whereof We have caused these our Letters Patents to be made.

[Edward our son at Westminster, the twenty-eighth day of March in the twenty-eighth year of our Reign.]"

https://www.legislation.gov.uk/aep/Edw1cc1929/25/9/section/wrapper1; and

Confirmation of the Charters (1297)

WHEREAS, King Edward confirmed the Charter of Liberties in the Confirmation of the Charters Act (1297) CHAPTER 6 25 Edw 1 cc 1 6. It is current Statute law. Section 1 states:

"I Confirmation of the Charters. Publication thereof.

EDWARD, by the Grace of God, King of England, Lord of Ireland, and Duke of Guyan, To All those that these present Letters shall hear or see, Greeting. Know Ye that We, to the honour of God, and of Holy Church, and to the Profit of our Realm, have granted for us and our Heirs, that the Charter of Liberties, . . . which were made by Common Assent of all the Realm, in the time of King Henry our Father, shall be kept in every point without breach.

And We will that . . . our Justices, Sheriffs, Mayors, and other Ministers, which under Us have the Laws of our Land to guide, [shall allow the said Charters pleaded before them in Judgment in all their points;] that is to wit, the Great Charter as the Common Law, . . . "

https://www.legislation.gov.uk/aep/Edw1cc16/25/6/section/I; and

The Statute the Fifth (1351)

WHEREAS, the Statute of the Fifth was passed by King Edward III at London on 10th October 1351. Section IV of the Statute the Fifth (1351) is current UK Statute law. It states:

"IV None shall be taken upon Suggestion without lawful Presentment; nor disfranchised, but by Course of Law.

"Whereas it is contained in the Great Charter of the Franchises of England, [the Magna Carta (1297)] that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land;

It is accorded assented, and stablished, That from henceforth none shall be taken by Petition or Suggestion made to our Lord the King, or to his Council, unless it be by Indictment or Presentment of good and lawful People of the same neighbourhood where such Deeds be done, in due Manner, or by Process made by Writ original at the Common Law; nor that none be out of his Franchises, nor of his Freeholds, unless he be duly brought into answer, and forejudged of the same by the Course of the Law; and if any thing be done against the same, it shall be redresseed and holden for none."

https://www.legislation.gov.uk/aep/Edw3Stat5/25/4/section/IV; and

WHEREAS, section VI of the Confirmation of the Charters Act (1297) is current Statute law and states:

"VI No Aids or Prises shall be taken but by Consent of the Realm.

MOREOVER we have granted for Us and our Heirs as well to Archbishops, Bishops, Abbots, Priors, and other Folk of Holy Church, as also to Earls, Barons, and to all the Communalty of the Land, that for no business from henceforth we shall take such manner of Aids, Tasks, nor Prises, but by the common assent of the Realm, and for the common profit thereof, saving the ancient Aids and Prises due and accustomed."

https://www.legislation.gov.uk/aep/Edw1cc16/25/6/section/VI; and

WHEREAS, section XI of the Confirmation of the Charters Act (1297) is current Statute law and states:

"X1 And Be it Remembered this same Charter, in the same Terms, word for word, was sealed in Flanders under the King’s Great Seal, that is to say, at Ghent the fifth day of November in the twenty-fifth year of the Reign of our aforesaid Lord the King, and sent into England."

https://www.legislation.gov.uk/aep/Edw1cc16/25/6/section/wrapper1; and

The Liberty of Subject Act (1354)

WHEREAS, the Liberty of Subject Act (1354) 28 Edw III c 3 was passed in the reign of King Edward III and is current Statute law. Section III provides that:

"III None shall be condemned without due Process of Law.

"no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law."

https://www.legislation.gov.uk/aep/Edw3/28/3

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009#_ftn4- para [25] ; and

Confirmation of the Charters and Statutes (1416)

WHEREAS, Confirmation of the Charters and Statutes (1416) 1416 CHAPTER 1 4 Hen 5 Stat 2 confirms that the "Great Charter" and "all other Statutes and Ordinances made in his Time" and "in the Times of his noble Progenitors Kings of England" and "not repealed" "shall be firmly held and kept in all Points" - at section 1:

"I Charters and Statutes confirmed.

FIRST, That the Great Charter, . . . F1, and all other Statutes and Ordinances made in his Time, and in the Times of his noble Progenitors Kings of England, and not repealed, shall be firmly holden and kept in all Points."

https://www.legislation.gov.uk/aep/Hen5Stat2/4/1/section/I

Confirmation of Liberties (1423)

WHEREAS, King Henry VI confirmed to "all..the King's People" and also "all the Cities and Boroughs" that they shall "have and enjoy" all their "Liberties and Franchises" "well used". The King also confirmed that these "Liberties and Franchises well used" "shall ....not be repealed, nor by the Common Law are repealable". This Confirmation was enshrined in the Confirmation of Liberties Act (1423) CHAPTER 1 2 Hen 6 and is current Statute law. Section 1 of the Confirmation of Liberties Act (1423) states:

"I Liberties confirmed.

FIRST, That Holy Church, and all the Lords Spiritual and Temporal, and all other the King’s People, having Liberties and Franchises, and also all the Cities and Boroughs shall have and enjoy all their Liberties and Franchises well used, and not repealed, nor by the Common Law repealable."

https://www.legislation.gov.uk/aep/Hen6/2/1/section/I; and

"Rex Debet Esse Sub Lege, Quia Lex Facit Regem" - "The king should be subject to the law for the law makes the king."

https://www.duhaime.org/Legal-Dictionary/Term/RexDebetEsseSubLegeQuiaLexFacitRegem

WHEREAS, Sir Edward Coke, the then Lord Chief Justice, wrote in "Prohibitions del Roy", that in 1607, he had told King James I that:

“...His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law... and: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected his Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said ; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege.”

Translation:

"The king is under no man, yet he is under God and the law, for the law makes the king."

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009#_ftn4-

Bracton was an English Judge who died in 1258.

https://www.jstor.org/stable/25721291

; and

The Petition of Right [1627]

WHEREAS, the Petition of Right [1627] 1627 CHAPTER 1 3 Cha 1 concerns the "Rights and Liberties" of the individual. It is current Statute law. Section VIII contains We the People's Petition of our Rights and Liberties to the Crown seeking redress.

https://www.legislation.gov.uk/aep/Cha1/3/1/section/VIII; and

WHEREAS, the Bill of Rights [1688] is an Act of Parliament declaring the "Rights and Liberties" of the "Subject" as at that date. The Bill of Rights (1688) is an Act of Parliament and is current Statute law, despite being called a "Bill". The Bill of Rights (1688) recites previous Human Rights and Liberties confirmed and enshrined in Usages, Customs, Common law, Statutes and previous Charters of Liberties prior to 1688 (see above). The Bill of Rights 1688 states, inter alia:

"An Act declaring the Rights and Liberties of the Subject and Settling the Succession of the Crowne."

(17th Century English)

WHEREAS, the introduction to the Bill of Rights [1688] confirms that "the Subject" has "antient Rights and Liberties" under the title "The Subject's Rights".

https://archive.org/stream/pdfy-uS6dgJSBYfcMp3x_/The%20Charter%20Of%20Liberties%20Of%20King%20Henry%20I%20%281100%29_djvu.txt

https://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction; and

WHEREAS, the Bill of Rights 1688 sets out that "Subjects' Liberties to be allowed" and that "Ministers hereafter to serve according to the same" .

https://archive.org/stream/pdfy-uS6dgJSBYfcMp3x_/The%20Charter%20Of%20Liberties%20Of%20King%20Henry%20I%20%281100%29_djvu.txt

https://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction; ; and

WHEREAS, the Bill of Rights 1688 places limits on the powers of the Crown. Section I of the Bill of Rights requires that the King and or Queen swears a Declaration according to the wording of 30 Car. II. [1678] ie Charles II, 1678: (Stat. 2.) "An Act for the more effectual preserving the Kings Person and Government by disabling Papists from sitting in either House of Parlyament.' i.e. that the King and or Queen and or Ministers and others must swear under Oath that they are a Protestant and will Declare that they will uphold our Protestant religion as established by law. (see the Declaration sworn, made and signed by Queen Elizabeth II in accordance with the wording enshrined in the Accession Declaration Act 1910 on 4th November 1952 (below).

- in Statutes of the Realm: Volume 5, 1628-80, ed. John Raithby (s.l, 1819), pp. 894-896. British History Online http://www.british-history.ac.uk/statutes-realm/vol5/pp894-896 [accessed 8 November 2021].; and

WHEREAS, our monarchs must uphold the Rule of Law by swearing to do so in their Coronation Oath as set out in the Coronation Oath Act 1688 - still applicable law as it has not been repealed. See also the Coronation Oath of Queen Elizabeth II (1953) (below). The Kings and Queens of this Realm have sworn a "Solemne Oath" to We the People to maintaine the "Statutes, Laws and Customs" of this Realm and all the People and inhabitants thereof in their "Spiritual and Civil Rights and Properties" - as confirmed in the Introduction of the Coronation Oath Act 1688 which states, inter alia:

"Whereas by the Law and Ancient Usage of this Realme the Kings and Queens thereof have taken a Solemne Oath upon the Evangelists at Their respective Coronations to maintaine the Statutes Laws and Customs of the said Realme and all the People and Inhabitants thereof in their Spirituall and Civill Rights and Properties."

https://www.legislation.gov.uk/aep/WillandMar/1/6/introduction;

It is here reiterated that if the courts consider the Parliament of Victoria to be "sovereign" now standing in place of Her Majesty Queen Elizabeth II, then the Parliament is also bound to maintain the statute laws and customs as a Commonwealth realm in Her Majesty's Commonwealth of Nations. Indeed, the purpose of s 75(v) of the Constitution is to ensure that actions or inactions of officers of the Commonwealth are always amenable to judicial review, if nowhere else, in the original jurisdiction of the High Court. That is achieved through the entrenched availability of the constitutional writs of mandamus, prohibition and injunction. These writs are available to ensure that officers of the Commonwealth can act only within their lawful power and do not exceed or ignore any jurisdiction that the law or Constitution confer on them.

https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20151009 - para 40

THE RULE OF LAW - Principle of evidence based decision-making

When we examine the Public Health and Wellbeing Act 2008, and examine the actions of our government agents such as those of Brett Sutton, Cheif Health Officer (Victoria) can we affirm that he has upheld his constitutional duty to uphold the Rule of Law through his directives which have impacted so many Victorians?

PUBLIC HEALTH AND WELLBEING ACT 2008 - SECT 5

Principle of evidence based decision-making

Decisions as to—

(a) the most effective use of resources to promote and protect public health and wellbeing; and

(b) the most effective and efficient public health and wellbeing interventions should be based on evidence available in the circumstances that is relevant and reliable.

It is here that I would like to draw the attention of the Court to this principle of "evidenced based decision making".

How do we define "evidence based"?

Evidence-based is any concept or strategy that is derived from or informed by objective evidence.

What is objective evidence?

Objective evidence means quantitative or qualitative information, records or statements of fact pertaining to safety or to the existence and implementation of a safety management system element, which is based on observation, measurement or test and which can be verified.

Why is this important to understand?

The rules, and regulations which have been enacted by the Victorian Government due to the COVID-19 pandemic have been reshaping the way Victorians live for over 22 months. These regulations, or directions, which have been enacted under the 'state of emergency' have been largely based upon controlling the number of 'active' COVID-19 cases within the state, where a 'positive case' has been deemed to be synonymous with an 'active infection'. But are these directions which have been issued by the Chief Health Officer, Brett Sutton, based upon objective, evidenced based determinations? No.

UNDERSTANDING POLYMERASE CHAIN REACTION (PCR)

Polymerase Chain Reaction is a process to amplify a molecule, such as DNA, until it is measurable.

To amplify a segment of DNA using PCR, the sample is first heated so the DNA denatures, or separates into two pieces of single-stranded DNA. Next, an enzyme called "Taq polymerase" synthesizes - builds - two new strands of DNA, using the original strands as templates. This process results in the duplication of the original DNA, with each of the new molecules containing one old and one new strand of DNA. Then each of these strands can be used to create two new copies, and so on, and so on. The cycle of denaturing and synthesizing new DNA is repeated as many as 30 or 40 times, leading to more than one billion exact copies of the original DNA segment.

So PCR is therefore an instrument to amplify a molecule, to make it measurable; so why is it being used as a diagnostic tool for infection?

WHO INVENTED PCR?

PCR was invented by Kary B. Mullis. The invention of the polymerase chain reaction technique earned him the Nobel Prize in Chemistry in 1993. Speaking on PCR, Kary Mullis expressly stated "It (PCR) doesn't tell you that you are sick". Kary Mullis also stated that the results of PCR could be inferred, and that this could be considered a misuse of PCR (erroneous inference).

https://www.youtube.com/watch?v=Xc0Kysti6Kc

INFERENCE

"In the law of evidence, a truth or proposition drawn from another that is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted. A logical and reasonable conclusion of a fact not presented by direct evidence but which, by process of logic and reason, a trier of fact may conclude exists from the established facts. Inferences are deductions or conclusions that with reason and common sense lead the jury to draw from facts which have been established by the evidence in the case." West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

Kary Mullis expressly stated that his invention of the polymerase chain reaction technique "doesn't tell you that you are sick". So the question must be asked here, upon which logical reason should one infer that the detection of a molecule (or a partial segment of a coronavirus genome) which has been amplified a billion times is confirmation of an active virus, and is thus confirmation that a person is carrying an infectious disease?

A spokesperson for Public Health England told Reuters why PCR tests are being used widely in England: “Molecular diagnostic tests, such as real-time PCR, are the gold standard methods for identifying individuals with an active viral infection, such as SARS-CoV-2 (the cause of COVID-19 disease), in their respiratory tract. These tests are rapid and produce results in real-time.

“It is important to note that detecting viral material by PCR does not indicate that the virus is fully intact and infectious, i.e. able to cause infection in other people. The isolation of infectious virus from positive individuals requires virus culture methods. These methods can only be conducted in laboratories with specialist containment facilities and are time consuming and complex.”

https://www.reuters.com/article/uk-factcheck-pcr-idUSKBN24420X

It is here that we can clearly see confirmation that PCR "does not indicate that the virus is fully intact and infectious, i.e. able to cause infection in other people", and we can also see the incoherent language used by this spokesperson for Public Heath England who also claimed that PCR are the "gold standard methods for identifying individuals with an active viral infection".

A question that needs to be asked here is how can PCR be a 'gold standard' method to identify individuals with an 'active viral infection', if "PCR does not indicate that the virus is fully intact and infectious, i.e. able to cause infection in other people"?

Even the Center for Disease Control and Prevention (CDC) which has supplied these PCR tests, and the manner to test for COVID-19 clearly states in their own documentation that the "Detection of viral RNA may not indicate the presence of infectious virus or that 2019-nCoV is the causative agent for clinical symptoms", and that "This test cannot rule out diseases caused by other bacterial or viral pathogens." See page 38 of the following document.

https://www.fda.gov/media/134922/download

Does Brett Sutton, Cheif Health Officer (Victoria) understand the limitations of PCR and that it is was neither designed to be, nor is an accurate diagnostic tool for infection? Does Brett Sutton, Cheif Health Officer (Victoria) understand that PCR is merely an instrument which amplifies a molecule until it is measurable, and that it cannot determine if that molecule is active, and infectious, or whether it is inactive, and harmless?

The objective science and evidence based data is clear. Every single 'active', or 'positive' COVID-19 case is based not upon objective evidence, but upon erroneous inference which cannot be supported by the results of PCR alone.

How can we determine if these 'active', or 'positive' COVID-19 cases are actually true infectious cases, where a person is carrying the SARS-CoV-2 virus, in an active, and infectious state?

In order to determine if a person is carrying an infectious virus, a sample must be taken from the person, and the virus needs to be isolated, and purified from the sample. This is done through a mechanical, or enzymatic method. This viral culture technique then takes the isolated sample of the virus, and places them in to different cell lines, to see if the virus is able to infect these cell lines. If the cells show visible morphological changes in these cell cultures, then the virus has produced what is known as 'cytopathic' effects, which means the culture is positive, and the person is carrying an active, and infectious virus.

Until every single COVID-19 test swab, has undergone viral culture, we cannot determine if a person is truly carrying an infectious disease.

Until every single COVID-19 test swab has undergone viral culture, the Chief Health Officer (Vic), Brett Sutton, cannot honestly say that he has based his directions on objective, and evidence based decision-making.

Until every single COVID-19 test swab has undergone viral culture, the Chief Health Officer, Brett Sutton, cannot honestly say he has acted upon, and obeyed, the rule of law.

Now Let us return to, and reconsider section 5.

Has the principle of evidence based decision-making being exercised correctly, and lawfully applied, as to the most effective use of resources to promote, and protect public health and wellbeing?

Can the principle of evidence based decision-making be supported, and upheld through the use of polymerase chain reaction (resource), and through the inferred diagnosis of the PCR test? No.

Can the principle of evidence based decision-making be supported, and upheld through the use of the PCR test, to act as a reputable diagnostic tool, in the intervention of effective public health, and wellbeing? No.

On the back of the likely misdiagnosis of thousands of Victorians, Brett Sutton, Chief Health Officer (Victoria) directed the Victorian government to mandate vaccines for all workers to enter their company premises. This authorisation to give such widespread vaccine directions is found under sectiom 117 of the Public Health and Wellbeing Act 2008 which gives the Chief Health Officer power to make such an order, however, there are provisions which need to be followed as seen below.

PUBLIC HEALTH AND WELLBEING ACT 2008

SECT 117 Chief Health Officer may make public health order

(1) The Chief Health Officer may, after having regard to the factors specified in subsection (2), make a public health order if the Chief Health Officer believes that .....

(2) The factors are —

(c) the possible side-effects and discomfort that may be caused to the person who is or may be infected with the infectious disease if he or she is required to undergo specified pharmacological treatment or prophylaxis for the infectious disease;

The questions therefore arises has Brett Sutton, Chief Health Officer (Victoria) ever stated to any individual who is under such mandate to be vaccinated, the possible side-effects, and discomfort that may be caused to the person who is required to undergo such specified pharmacological treatment or prophylaxis for the infectious disease? No. So once again, the Rule of Law is not being followed by the Chief Health Officer of Victoria, Brett Sutton.

In an article published by NIH, Timothy Cardozo and Ronald Veazey authored a paper which suggested that a vaccine which uses an unmodified or minimally modified coronavirus viral spike to elicit neutralising antibodies, whether it is composed of protein, viral vector, DNA or RNA and irrespective of delivery method, may worsen COVID-19 disease via antibody-dependent enhancement (ADE), and that the specific and significant COVID-19 risk of ADE should have been and should be prominently and independently disclosed to research subjects currently in vaccine trials, as well as those being recruited for the trials and future patients after vaccine approval, in order to meet the medical ethics standard of patient comprehension for informed consent.

As Australians are still participating in Phase III of the Clinical Trials, all Australians should have been made aware of the specific and significant COVID-19 risk of ADE which can be increased through the use of these COVID vaccines and the full length s-spike protein which the mRNA vaccines induce your body to produce.

https://pubmed.ncbi.nlm.nih.gov/33113270/ see also

SARS-CoV-2 Spike Protein Impairs Endothelial Function via Downregulation of ACE 2

https://www.ahajournals.org/doi/10.1161/CIRCRESAHA.121.318902 and

SARS-CoV-2 spike protein alone may cause lung damage

https://medicalxpress.com/news/2021-04-sars-cov-spike-protein-lung.html

SARS–CoV–2 Spike Impairs DNA Damage Repair and Inhibits V(D)J Recombination In Vitro

https://www.mdpi.com/1999-4915/13/10/2056

INTERPRETING THE CONSTITUTION

It is submitted, that the Supreme Court of Victoria has the power of ju­dicial review when legislation is ultra vires the Constitution of Victoria. Further, as part of the Constitution of Victoria it is submitted that the fundamental documents referred to in the early cases in NSW, and as affirmed in The Constitution Act, 1975, Section 3, and affirmed in 9 Geo. IV, c. 83, and as declared in the Imperial Laws Ap­plication Act, 1969 No. 30, Second Schedule, Part 1, are provisions of the Constitutiion of NSW which guarantee to the people of NSW their various liberties, properties and principles of English law. It is also submitted that these enactments further guarantee to the people of Victoria their various liberties, properties and principles of English law.

It is submitted that under a written constitution it is the duty of the Courts to determine whether statutes enacted by the legislature transcend the limits imposed by the constitution and whether such laws are or are not unconstitutional. It is to the Courts alone so say what the law is. The power which the courts have proceeds from the supremacy of the Constitution and their duty to declare such supremacy.

Such a duty is obvious, if the courts did not posses the right to vitiate unconstitutional legislation, written constitutions would be of little or no value; for the legislature, being the sole judge of its own powers, would soon remove any restriction in its way.

“The supremacy of the law requires that where enacted Constitutions form the fundamental law there be some authority which can pronounce whether the legislature itself has or has not transgressed it in the passing of some law, or whether a specific law conflicts with the superior law, the Constitution. If a separate body of men were established to pronounce upon the constitutionality of law, nothing would be gained. It would be as much the creature of the Constitution as the legislature, and might err as much as the latter. Quis custodiet custodes? Tribunes or ephori? They are as apt to transgress their powers as other mortals. But there exists a body of men in all well-organised polities, who, in the regular course of business assigned to them, must decided upon the clashing interests, and do so exclusively by the force of reason, according to the law, without the power of armines, the weight of patrongae or imposing pomp, and who, moreover, do not decide upon principles in the abstract, but upon practical cases which involve then - the middlemen between the pure philosphers and the pure men of governement. These are the judges of the law.” (Ellingham -v-Dye 99 NE 1)

The Plantiff refers the Court to the American decision of Marbury -v- Madison 1 Cranch 137, specifically page 176.2-180.9 This case has been accepted in the High Court as the relevant theory for constiu­tional interpretation (see Fullager J. at page 262 in Australian Communist Party - v- The Commonwealth [1951] 83 CLR 1).

It also appears that the early NSW cases (Rusden -v- Weeks, supra) also knew of and adopted the concept in Marbury without referring to the American cased by name.

It is submitted, that fundamental documents such as the Magna Carta and Bill of Rights of 1688 were considered paramount to statutes and judicial decisions when they were produced . They were products of the people to dictate to the government of the day conditions under which the early constitution of which colonial legislation had to be consistent. These documents have been held the constitution of the English people right down to the day the Victorian Parliament formally included them in the written constitu­tion of Victoria (Constitution Act 1975) and was proclaimed as an Act of the Parliament of Victoria.

It is submitted, that this is the same situation as existed in America before the writing of the American Constitution. For example, in the case of Bowman -v- Middleton (1787) 1 Bay 252, an Act of the Assem­bly in 1712 transferred a freehold from one to another, without trial or compensation. The Court at page 254.8-255.2 held

“that the plantiffs could claim no title under the Act in question, as it was against

common right, as well as Magna Charta, to take away the freehold of one man and vest it in another, and that, too, to the prejudice of the third persons, without any compensations, or even a trial by the jury of the country, to determine the right in questions. The the Act was therefore, ipso facto, void. That no length of time could give it validity, being originally founded on erroneous principles.”

This case and others confirm the existance of the “natural, inherent, and inalienable rights” as declared in documents owned nothing to their recognition there (see “The Natural Law Background of Due Pro­cess”, Columbia Law Review 31:56-81 or “The Higher Law Background of American Constitutional Law”, Corwin, Cornell University Press, 1984).

It is submitted that for Parliament to abolish or override such constitutional documents there would need to be before it such a monumentous event in history of English law through a medium as significant as the monumnetous events which gave rise to their being. Since those documents were products of the people, they should therefore be abolished by the people when and if it become necessary. It is submit­ted, that the Parliament, through the proces of party politics could not undo the strong threads which run through the principles of English law, rather, it must be up to the people through a referendum to perfom such a delicate and significant operation. It must be the people who give up their rights, not the sover­eign who takes them away.

It would be a design offensive to the rational mind if the Victorian Parliament sought to take principles which had a a pre-existance and declare them on a piece of paper only to destroy the paper later in the hope of destroying the principles.

The present case does not concern itself with such a significant question, the question before the Court is rather more simple.

IMPERIAL LAWS APPLICATION ACT

In the Imperal Laws Application Act, 1969 No. 30, Second Schedule , Part 1 there are fundamental documents which are listed as the Constitutional Enactment of NSW.

Under the Imperial Laws Applica­tion Act, there is no indiciation that these fundamental documents are subject to the legal interpretation theory that subsequent parliamentary enactments are to override previous parliamentary enactments to the extent of inconsistency.

Part 2, sec. 6 declares those fundament documents to be in force in NSW. Other Imperial Acts, which are not fundamental to the Constitution, are shown by Part 2, sec. 5 of the Imperial Laws Application Act to be subject to Alteration by subsequent Acts of the NSW Parliament. The Imperial Laws Application Act appears to have recognised and been constructed to be consistent with the constitutional interpretation theory as enunciated in Marbury, that is, the concept of paramount law. How paramount will be left to another day. This matter can be dealt with on a constitution theory with simpler issues.

Taking a despotic Victorian Parliament’s cases at its highest, if the Parliament should wish to try to abrograte the fundamental rights of the citizens of Victoria, it would first need to abrogate the fundament documents that were enshrined in the Constitution Act 1975, and the Imperial Acts Application Act 1980. Likewise if the Parliament of NSW should wish to try to abrograte the fundamental rights of the citizens of NSW, it would first need to abrogate the fundament documents that were declared in the Imperial Acts Application Act 1969. Using the authority of such cases as Cooper -v- Commissioner of Income Tax for the State of Queensland (1907) 4 CLR 1304 McCawley -v- The King Anors (1919( 26 CLR 9 and Trethowan Anor -v- Peden Anors (1930) 31 NSWR 183, the NSW Parlia­ment would first have to abolish the Constitutional Enactment in Part 1 of the Second Schedule before legislation could be passed which would be inconsistent with those Constitutional provisions.

It is submitted, that the all vaccine mandate which curtail the freedom of movement, and the right to earn a living given by the direction of Brett Sutton Chief Health Officer (Victoria), is ultra vires the following Constitutional Enactments of VIC:

1. (1297) 25 Edward I (Magna Carta) c. 292. (1623-4) 21 James I c.3 (Statute of Monopolies) ss. 1 & 63 (1627) 3 Charles I c 1 (Petition of Right)4. (1688) 1 William and Mary sess. 2 c. 2 (The Bill of Rights)

DUE PROCESS OF LAW.

Is a concept which has its origins in Magna Charta. The words “law of the land” as used orginially in Magna Charta were understood to mean due provess of law; that is by indictment or presentment of good and lawful men; “and this” says Lord Coke, “is the true sense and exposition of those words”.

The better and larger definition of “due process of law” is, that it means "law in its regular course of admin­istration through courts of justice”,

2 Kent Comm. 13, quoted in Whvnehamer -v- People, 13 NY 395; Rowan -v- State 30 Wis. 146 (taken from the American and English Encyclopaedia of Law 1888)

In the Tenessee State Constitution the word “law of the land” are still used and have been interpreted as synonymous with the “due process of law” provisions of the Federal Constitution. (Anglin -v- Mitchell, 395 Sw2d 779, Dearborne -v- State, 575 SW2d 259)

The same situation exists with the Constitution of the Sate of North Carolina. (A-S-P Associates -v- City of Raleign, 258 SE2d 444, Stam -v- State, 267 SE2nd 335)

Due process of law has been conferred by 28 Edward III ch. 3 (1354), 42 Edward III ch. 3 (1368) and the Petition of Right (1627). Each of these Imperial enactments are in force in NSW pursuant to S.6 of the Imperial Acts Application Act, as they are in Victoria under the Imperial Act Application Act 1980. The American court use the term “substantive due process” in some applications, this is really just a sim­ple phrase to indicate the “rule and dictate of right and reason”.

It has been developed from the concept that a person cannot be seen to be receiving due proce of law, when the law itself lacks the substance of the law. No matter how proper the procedures may be, a person does not receive the benefit of due process when the law is corrupt.

Unfortunately, the judicial system has often been seen by the public as just one more participant in the oppression when it has systematically followed the the legal rules of procedure down the road to an injustice. As Cardozo K. stated, “aviled the eye and plunged the knife”.

ATTEMPTS AT LIBERTY

In the well known BLF Case (1986) 7 NSWLR 372 the Chief Justice attempted through the use of the words “peace, welfare, and good governemnt” to place limitiations on the powers of the NSW Parlia­ment. Since these words have long been know to grant plenary power, not restrict it, his attempt failed. In the BLF Case there was reference to the three rather significant New Zealand cases of which contained decisions of Sir Robin Cooke; New Zealand Driver’s Association -v- New Zealand Road Carriers (1982) 1 NZLR 116 at 121, and Taylor -v- New Zealand Poultry Board (1984) 1 NZLR 394 at 398.It was in the Taylor Case that Sir Cooke stated

“... I do not think that literal compulsion, by torture for instance, would be within the lawful powers of Parliament. Some common law rights persumably lie so deep that even Parliament could not override them.”

It is submitted, that the learned Judge may have stated the case too strongly. It is submitted, that all the fundamental rights may be infringed upon, even overridden in appropriate situations, but only by the rule and dictate of right and reason. An argument could be made in such a circumstance, that if a foreign terrorist has planted a nuclear de­vice in Victoria set to go off in a few hours, it would not only be reasonable, but with the public interest that literal compulsion by torture be exercised.

Ultimately, it is the natural law element of reason which balances the rights of the individuals and the compelling interests of the state.

UNION STEAMSHIP

The case of Union Steamsip Co. of Australia Pty Ltd -v- King 82 ALR 43 again dealt with the words of “peace, welfare and good governemnet” At page 48 the words were again declared to be the grant of plenary power, however, the High Court indicated at 48.17, Whether the exercise of the legislative power is subject to some restrains by reference to rights deeply rooted in our democratic system of government and the common law (citations of New Zealand cases), a view which Lord Reid firmly rejected in British Railways Board -v- Pickin (1974) AC 765 at 782, is another question which we need not explore. The question, of course, is the very question the plantiff attempts to answer in this submission.

HAMILTON -V- OADES

Perhaps one last case should be mentioned, Hamilton -v- Oades (1989) Vol 63 ALJ 352. The respon­dent put forth the proposition that he was denied “due process”. At page 357D, Justices Deane and Gaudron thought such arguments interesting, but disposed of the matter on other grounds.

It was the Judge at page 361G who had the most to say about the concept. Several things are apparent by his unspported statements. By starting with the phrase “in truth” one is struck by the apparent similari­ties to other legal positive judges who simply rely upon the classic Dicey argument of “everybody knows”. Lord Reid in British Railways supra, appears to be the most elegant of the lot, however, the forceful com­ments in Fischer, supra, are noteable, as is the verbosity of Grace Bible, supra.

It is perhaps because Dicy never gave any significant authority and simply asserted his theory as fact, that it becomes necessary for his followers to do likewise. The dicta at page 361G is an interesting twist in that it states the appeals to due process is nothing more than an appeal to the principles of Parliamentary Sovereignty. Continuing, it appears to have been an overstatement to assume he’s aware of how everyone thinks in Australia, and hopefully, his last comment in the paragraph will prove to be wrong.

TESTS OF INVALIDITY

Various tests have been developed in Australia to be used in determing whether or not legsilation is ultra vires the Constitution. Most of these tests (reasonableness, vague, overbreath etc.) can be found in cases which are in relation to the federal constitution, predominantly Section 92 cases. It would be a logical extension, and reasonable to adopt the same tests for the review of State legislation as those tests have been developed over centuries and approved by the highest judicial power in Australia.

Further, if the Supreme Court finds that the people of Victoria retained their con­stitutional fundamental rights and the principles of Justice from their English heritage, then the test devel­oped, predominatly in America, in regards to infringment of constitutional fundamental rights would also be reasonable, since those fundamental rights tests are basicaly variations of the tests already approved by the High Court.

It is also submitted, that because the United States has a two-tiered, federal and state system like Austra­lia, that many American cases which explore the realationship between the state and federal constitu­tions can also be of assistance to the Court.

STATE AND FEDERAL CONSTITUTIONS

It is submitted, that the State of Victoria can grant to its citizens more personal rights under the State Constitution that are granted under the Federal Constitution. Although this proposition does not seem to have been directly dealt with in Australia, it has been decided may times in another two-tier system - America.

In the American Supreme Court case of Pruneyard Shopping Centre et al. -v- Robins et al. 447 U.S. 74, the Supreme Court held that the Federal Constitution does not “limit a State’s authority to exercise its police power or its sovereign right to adopt its own constitution individual liberties more expansive than those conferred by the Federal Constitution” (page 81 . 3-.6). State Courts in America have dealt with the arguments of a similar nature and have likewise decided the question at the state level.

In the Rhode Island case of State -v- Benoit the issue of an unreasonable search and seizure under an unwarrented search was decided. At pages 899.0-901.6 the Court reviewed the right of the state courts as final interpreters of state law and approached the decision to depart from the minimum federal standards to the increased level granted under the state constitution with a “princi­pled rationale.”

Another search and seizure case of Minnesota, O’Conor -v- Johnson 287 NW2nd 400 also held a search unreasonable under the state constitution. At page 405 .4-.8, they held that the states are inde­pendently responsible for safeguarding the rights of their citizens and may afford their citizens greater protection that the safeguards guaranteed under the Federal Constitution.

Likewise , in the Tennessee case of Merchangts Bank -v- State of Tenessee, Wildlife Resources Agency 567 SW2nd 476, the Court admitted that under the Federal Constitution the apellee-claimant would have no rights at all, however, they determined the case under the Constitution of Tenessee (page 478.9-479.2) and decided the law was unconstitutional.

It is submitted that this line of reasoning in the United States is reasonable and appropriate to the State of Victoria Constitution under which the Supreme Court of Victo­ria must interpret the laws. As in America, the grant of powers to the Australian Commonwealth Govern­ment is limitied with the residuary powers remaining in the states. This line of reasoning becomes significant when considertation must be given to the Constitutional Enact­ments which the Victorian Parliament has formally declared to be applicable in Victoria. Especially when the Parliament has taken the time to include then exclude various parts of fundamental documents applicable to the law of Victoria.

STATUTE OF MONOPOLIES

Under Australian law, the Statute of Monopolies 1624 is central to one of the tests for patentability of inventions in the Patents Act 1990. Of special interests in NSW legislature is the exclusion of Section VII of the Statute of Monopolies that is declared a Consti­tution Enactment under the Second Schedule, Part 1 of the Imperial Acts Application Act, 1969 No. 30 Although Sections I and VI were declared, the saving provisons in regards to monopolies created by the Parliament were omitted. It is submitted that this is rather significant as this approach to curtailing the powers of the sovereign is exactly what the Statute of Monopolies was designed to do.

If the Court takes a strict interpretation of the theory of the “Sovereign Parliament” stepping into the shoes of the sovereign in the early fundamental documents, then this Constitutional Enactment, as declared by Parliament, logicially proceeds to do what was the intention of the Statute of Monopolies, to prevent monopolies granted by the sovereign.

This approach to the interpretation of the Constitution of NSW, as the Constitution of Victoria and to the restriction on the power to create monopolies is consistent with American state constitutions. For example, The Constitution of Texas in Article I (Bill of Rights), Sec. 26. states;

“Sec. 26. Perpetuitues and monopolies are contrary to the genius of a free governement, and shall never be allowed; nor shall the law of primogeniture or entailments ever be in force in this State.”

Contrast the Texas Sec. 26. with Sec. 31. of the North Carolina Constitution under its Article I (Declara­tion of Rights) :

“Sec. 31. Perpetuties and monopolies are contrary to the genius of a free State, and ought not to be allowed.”

It would appear that in North Carolina the Legislature could still make a monopoly, however, it appears that it would be subject to strict scrutiny by the courts. This appears to be consistent with High Court’s position of strict scrutiny in Clark King and Ubergang when it looked at the Wheat Board monopoly. Clark King & Co. P/L -v- Australian Wheat Board (1978) 140 CLR 120, Ubergand -v- Australian Wheat Board (1980) 145 CLR 266)

In Ubergang the High Court sent the Wheat Board off to find some evidence to support its assertion that the Wheat Board was “the only practical and reasonable manner of regulation”. Considering the multi­tude of other schemes and deregulation that exists around the world, it was no wonder that the Wheat Board never returned. It is conceded by the plantiff that the Victorian Supreme Court as the interpreters of the Victoria Constitution have the power to declare Section VII (saving provision of Parliament) of the Statute of Monopolies a part of the Constitution of Victoria.

However, it is submitted, that such an interpretation could not be done by consent of the parties but only by evidence and argument put before the Court. Perhaps the American case of Chicago and Grand Turk Railway Company -v- Wellman US 339 would be of some assistance on this issue, at 344. 346.5 it was indicated that the Courts should be careful not to declare legislative acts unconstitutional upon agreed and general statements, and without the fullest disclosure of all mate­rial facts.

CASES OF MONOPOLIES

The various English cases concerning monopolies make a distinction between monopolies and ingross­ing, that is, a monopoly is by patent from the sovereign, and ingrossing is an act between two parties. It seems that monopolis by the sovereign were so well known to be illegal, that it appears that there is not other case on the point since The Case of Monopolies (1602) 11 Co. Rep. 84b., 77 ER 1260.

In The Case of Monopolies the plaintiff relies upon Coke’s analysis of the three inseparable incidents to every monoply (ER page 1263.5) as being directy applicable to the Respondents’s monopoly. This will be demonstrated by the increase in prices, curtailment of products and the decrease in numbers of workers. Other points of interest in the case is the recognition at page 1263.8 of every man’s trade maintains his life and the high value placed upon this aspect of personal liberty. Further, on page 1264.0 is the recognition of the deception of the sovereign in granting such a monoply as for the public good, when it will actually be employed for the private gain of the monopoly to the prej­udice of the public. It appears that other English cases that deal with monopolies are concerned with contracts between par­ties, rather than governement issued monopolies.

Mitchell -v- Reynolds (1711) 1 P. Wms 181, 24 ER 347, is a case of much interest in that it is a resolu­tion of the Court which consolidates much of the law in regards to monopolies. The rules concerning grants from the crown are at page ER 348.5. Throughout the case are references to reason, public inter­est and Magna Charta.

Rex -v- Waddington (1800) 1 East 143, 102 ER 56, was a case concerning engrossing, that is, the in­creasing of unfair profits in the selling of hops. At page ER 64.8-65.1 is a reference to the public inter­ests, especially to the necessities of life.

Wickens -v- Evans (1829) 3 Y. & J. 318, 148 ER 1201, dealt with a limited, rather than general, restric­tion of trade that was supported by adequate and good consideration, as such it was a valid agreement. There is an interesting comment at 1204.8,

“Magna Charta provided against force and power, and not the voluntary acts of men; and if I sell my liberty to trade, it is no longer mine, but his to whom I sell it.”

Mallan -v- May (1843) 11 M. & W. 653, 152 ER 967, was a case concerning a covenant to practice as a dentist. Part of the covenant was void as a restraint of trade which was larger than what was required for the necessary protection of the party with whom the contract was made, it was unreasonable and void, as it was injurious to the interest of the public, on the ground of public policy (page ER 973.2)

Other cases say much the same thing, Hilton -v- Eckersleu 6 E. & B. 47, 119 ER 781; Hare -v- London and Northern Western Railaway Company 2 J. & H. 80, 70 ER 978; Nordenfelt -v- Maxim Nordenfelt Guns and Ammunition (1894) A.C. 535.

Hawkins’ Pleas of the Crown, vol 2, Bk. 1. Ch. 29 also explains that the making of an unlawful monopo­ly was an offence to the common law that was malum in se (sect. 5) in that it was contrary to the ancient and fundamental laws of the kingdom. He further cites the restrictions under the Statute of Monopolies. The Court may find of interest the analysis of English law in regards to monopolies which the American Supreme Court reviewed in Standard Oil Co. -v- United States 221 US 1, starting at page 51.2 through 59.1. Although the Sherman Anti-trust Act was directed at personal contracts injurious to public interest, it lays as its legal foundation the acts of government monopoly which is injurious to trade. The ills that are brought about by government monopolies are the very ills that the Sherman Act was designed to pre­vent from private parties. These, of course, are the same ills that the Plantiff alleges are brought about by the Respondent.

The Plantiff takes the point that the Con­stitutional Enactments of the Constitution of Victoria make any monopoly void (as in the Texas Constitu­tion). The Respondent is a monopoly and is therefore ipso facto void. If the Court was convinced that the Parliament of Victoria still retained the power to create a monopoly without amending their Constitutional Enactments (as in the North Carolina Constiution), or that the Courts could include Sec. VII as a mere oversight of their Parliament, and the Parliament of Victoria still retained their power to create a monopoly without amending their Constitutional Enactment, then it is submitted that the Respondent bears the onus of proof that the monopoloy is reasonable and is one for the public interest.

THE NATURAL LAW IN CONSTITUTIONAL VALIDITY

It is submitted that all Constitutional Enactments of Victoria are natural law documents. The Magna Cart is a natural law document, as is the Petition of Rights, the Statute of Monopolies, the Bill of Rights and the Habeous Corpus Act. There is no constitutional support for legal positivism. Without going into an indepth review of the history of natural law (see Corwin, supra), it is submitted that “reason” or “natural law” is the basis for the English system of law. It has a heritage in Western philo­sophical thought going back at least to Aristotle and the Stoic school of philosophy in Ancient Greece. Cicero in Rome also referred to the paramount importance of reason. Early English cases as compiled by Bracton indicate the importance of reason. Sir Edward Coke’s comments about “common right and rea­son” in Dr. Bonham’s Case, (161) 8 Co. 107a are often referred to. Contemporary Australian cases use the same test for reason. The concept of the “natural law” has an unbroken heritage in western thought going back at least 2,000 years. The substance of English law is reason. Legislation without reason is without the substance of English law. A law without substance is void.

The natural law concept has been given recognition in various Constitutional Enactments. In Magna Charta c.29 it is often stated that the phrase “law of the land” refers to the natural law concept. In the Statute of Monopolies it is implicit in the phrase “constant and agreeable to the ancient and fun­damental laws”. In the Petition of Right several pharses indicate the presence or concern for the natural law,

“concering divers rights and liberties of the Subjects...because such loans were against reason and the francise of the land...not warrantable by the laws or statutes of this realm...by the law of the land...subjects have of late been imprisoned without just cause shewed...By pretext whereof some of your Majesty’s subjects...”

In the Bill of Rights the concept or concern for the natural law is shown in such phrases as:

“Law and Liberties of this Kingdom...and by divers other arbitrary and illegal Courses...utterly and directly contrary to the known Laws and Statute, and Freedom of this Realm...delivering this Kingdom from Popery and arbitrary power...Laws and Liberties might not again be in Danger of being subverted....vindicating and asserting their ancient rights and Liberties...preserve them from the Violation of their right...Rights, and Liberties...are the true, ancient, andubitable Rights and Liberties of the People of this Kingdom,”.

The central concept of reason in a Statute is often referred to the rationale of the legislation, or rational basis. This is a concept that is central in Anglo/American law. Australian cases also refer to this concept.

MIDLAND MILK

In the case of Midland Milk Pty Ltd Anors -v- NSW Dairy Corporattion [1986] 6 NSWLR 200. In this case, before a single judge of the NSW Supreme Court, provisions of the Daily Industry Act 1970 were declared invalid as the regulations were not found to be a reasonable regulation of interstate trade un­der Section 92 of the federal constitution.

The plantiff is not arguing a section 92 point as the mandates are not directed to discriminatory burdens having a protectionist purpose in either its form of substance.

The mandate is restricted to the “core activity” of individual free trade which, of course, would be a necessary prerequisite for the freedom of interstate trade. Freedom of “interstate” trade is really just an extension of the freedom of trade one claims within the jurisdiction of Victoria.

Freedom of trade or to engage in one’s lawful occupation are elements of personal liberty. As Justice Rogers pointed out at page 225D the federal constitutional freedom of interstate trade stands unchal­lenged as “a freedom of the individual”. Likewise the “core activity” of trade is such a freedom of the individual which is protected under the State Constitution.

Midland Milk incorparates many of the tests which are fundamentsal principles of the English Law; fors­eeability”, “reasonabless”, “good faith”, “fairness”, which spring from the English natural law heritage, which is the rule and dictate of right and reason (substantive due process). Some tests and concepts of English jurisprudence which were used in Midland Milk include, 1. Void of vagueness (page 223G).2. Rational basis (page 225G).3. Individual freedom (page 225).4. Unjustifably discriminatory (page 231A-D) 5. Reasonableness (page 225E) 6. Public interest (page 225) Justice Rogers was clearly exercising substantive due process (rule and dictate of the right and reason).

These principles are not specificly expressed in the Australian Federal Constitution, but implied as they are in the American Federal and State Constitutions. It is submitted, that it is logical and reasonable that the principles are valid for interpretation of the provisions of the Victorian State Constitution.

In Midland it appears that Justice Rogers did not make a finding in regards to whether there was a sup­portable rational basis (he states “raison d’etre”) for the legsilation, although he expressed some doubts as to whether there actually was (page 225G). However, since the freedom of interstate trade is a free­dom granted under the federal Constitution, he went on to the higher test of balancing a constitutional freedom with the compelling interest of the state. This change of approach is significant as it switches the burden of proof to the other party (page 225E).

Legislation is presumed to have a rational basis, and a party which assaults legislation as not having a rational basis, bears the burden of proof. However, when a constitutional freedom is at issue, the leg­islation is subjected to greater scruitiny by the courts and the onus of proof switches to the party who attempts to restrict the constitutional freedom. Although this concept regarding which party has the onus of proof is accpeted law, it does not appear that there are many cases in Australia on point which refer to the issue of contitutional fundamental free­doms, such as liberty and property. As such it may assist the Court to review some American decisions which deal specificly with those concepts.

AMERICAN CASES

There are a multitude of American cases (perhaps hundeds of thousands) which deal with the funda­mental freedoms of the citizen. These few cases are only illustrative of the concepts and may be of some assistance to the Court.

Petrey -v- Flaugher 505 F. Supp 1087, was a case which deals with a right (free education) which was not enumerated under the Constitution. The Court found that such right was not fundamental and there­fore used the rational basis to determine the constitutional validity. There was a rational basis and the statute was valid. This case has an intersting analysis of “The Doctrine of Substantive Due Process” beginning in page 1088 which the Court may find of assistance.

Matter of Wood 430 F. Supp 41 was a case involving an alleged conflict with the issuance of subpeonas by a grand jury and the subpoenaed party’s fundamental rights. As such the Court was required to shift the burder to the government to demonstrate a “compelling interest”. The Court’s balancing of the vari­ous interest begins at page 45.3-449.8 The government tipped the balance of the scales in favour of its “compelling interest”. The Plantiff draws special attention to the comments about rights being zealously guarded if they are not to be whittled away, little by little, over the course of time.

Giordano -v- Roudebush 448 F. Supp 899, was a case dealing with the concept of procedural due pro­cess in regards to a liberty interests. At page 904 [3,4] the Court makes reference to the liberty interest to engage in any of the common occupations of life.

Globe Fur Dyeing Corp. -v- U.S. 467 F. Supp 177, was a case in which the Court indicated that it had a wide latitude to find a rational basis for legislation. Beginning at page 179[2-4] to 180[6] the Court arrived at a rational basis for the legislation.

Woods -v- Holy Cross Hospital 591 F. 2d 1164, was a medical malpractice case which deals with equal protection and due process. At 1175 B. DUE PROCESS to the end of page 1176, there is an analysis of the law of substantive due process. Essentially there was no fundamental right and there was a rational basis which bore a reasonable relationship to the subject of the legislation and which was adopted in the interests of the community.

LIBERTY AND PROPERTY

It is this core activity of personal liberty, of “a freedom of the individual”, that the respondent seeks not to just infringe upon, but to extinquish. Further, the Respondent seeks to deny the Plantiff the fruit of his labours by denying him the ability to earn a living, by mandating private businesses enforce a lockout of non-vaccinated workers on their company premises. By the Respondent claiming authority to deny the Plantiff’s right to work, the Plantiff has effectively lost the ability to provide for himself, his family, and to economically secure his future. It is submitted that in a case where constitutional fundamental rights (life, liberty and property) are in issue, such as this case, that the Respondent bears the onus of proof that the mandates and regulations are reasonable and necesary to promote the purpose of the mandates which should be in the public interest. However, in the present case, the Court may never have to go on to the balancing test as it is the position of the plaintiff that the mandates issued by Brett Sutton Chief Health Officer (Victoria) never had a legitimate purpose.

RATIONAL BASIS

The mandates are said to be given to “eliminate or reduce the risk to public health” and they are “rea­sonably necessary to protect public health through preventing serious illness, and death, and as much as possible disease transmission.”

However, as “breakthrough” infections are becoming increasingly common the court may like to consider the following studies which pertain to the transmissibility of SARS-CoV-2 among fully vaccinated individuals and highlights how the impact of vaccination on community transmission of circulating variants of SARS-CoV-2 appeared to be not significantly different from the impact among unvaccinated people. 1,2 And where the scientific rationale for mandatory vaccination in the USA (and within Victoria) relies on the premise that vaccination prevents transmission to others, resulting in a “pandemic of the unvaccinated”, 3 yet, the demonstration of COVID-19 breakthrough infections among fully vaccinated health-care workers (HCW) in Israel, who in turn may transmit this infection to their patients, 4 requires a reassessment of compulsory vaccination policies leading to the job dismissal of non-vaccinated "authorised" workers in Victoria. Indeed, there is growing evidence that peak viral titres in the upper airways of the lungs and culturable virus are similar in vaccinated and unvaccinated individuals. 1,2,4– which includes a recent investigation by the US Centers for Disease Control and Prevention of an outbreak of COVID-19 in a prison in Texas which showed the equal presence of infectious virus in the nasopharynx of vaccinated and unvaccinated individuals. 5 Similarly, researchers in California observed no major differences between vaccinated and unvaccinated individuals in terms of SARS-CoV-2 viral loads in the nasopharynx, even in those with proven asymptomatic infection. 6 Thus, the current evidence suggests that current mandatory vaccination policies should be reconsidered as there is not a tangible benefit to public health, nor is their a rational basis to continue these mandates in light of the objective scientifc evidence.

1 Singanayaman A, Hakki S, Dunning J, et al.

Community transmission and viral load kinetics of the SARS-CoV-2 delta (B.1.617.2) variant in vaccinated and unvaccinated individuals in the UK: a prospective, longitudinal, cohort study. Lancet Infect Dis 2021; published online Oct 29.

https://www.thelancet.com/journals/laninf/article/PIIS1473-3099(21)00648-4/fulltext

2 Wilder-Smith A. What is the vaccine effect on reducing transmission in the context of the SARS-CoV-2 delta variant?Lancet Infect Dis 2021; published online Oct 29.

https://www.thelancet.com/journals/laninf/article/PIIS1473-3099(21)00690-3/fulltext

3 Tayag Y. Stop calling it a pandemic of the unvaccinated. The Atlantic. Sept 21, 2021.

https://www.theatlantic.com/ideas/archive/2021/09/persuade-unvaccinated-protect-unvaccinated/620091/

4 Bergwerk M, Gonen T, Lustig Y, et al. COVID-19 breakthrough infections in vaccinated health care workers. N Engl J Med2021;385:1474–84.

https://www.nejm.org/doi/full/10.1056/NEJMoa2109072

5 Hagan LM, McCormick DW, Lee C, et al. Outbreak of SARS-CoV-2 B.1.617.2 (delta) variant infections among incarcerated persons in a federal prison—Texas, July–August 2021.

MMWR Morb Mortal Wkly Rep2021; 70:1349–54.

https://stacks.cdc.gov/view/cdc/110541

6 Acharya CB, Schrom J, Mitchell AM, et al. No significant difference in viral load between vaccinated and unvaccinated, asymptomatic and symptomatic groups infected with SARS-CoV-2 delta variant.medRvix2021; published online Sept 29.

https://www.medrxiv.org/content/10.1101/2021.09.28.21264262v1

The Court would also be aware that a ‘non-vaccinated indi­vidual’ is not synoymous with an ‘infected individual’, and that a 'vaccinated individual' who has been innoculated with a COVID-19 vaccine is not akin to a person who has been vaccinated with a 'sterilising immunity' vaccine (which means that they can neither contract nor transmit the SARS-CoV-2 virus to others), and that any belief held in contrary of these objective fact is not grounded in science.

As vaccinated people can become infected and trasmit the virus, the cost of achieving the objective of reducing the spread of the virus may exceed the rather intaginble benefit to the pubic interest. If this intangible benefit is the new “rational basis” for the mandates, then the plantiff takes the position that there are no facts (intagible) which bear a reasonable relationship between the mandates and this objective.

FIDUCIARY CARE

The Plantiff takes the point that Brett Sutton, Chief Health Officer (Victoria) has actively dismissed his fiduciary duty of care to all Victorians which have been impacted by his workers vaccine mandates against their best interests, and is further causing continued harm to these same people. The Plantiff takes the further point that Brett Sutton, Chief Health Officer (Victoria) has actively dismissed his own legal and ethical responsibility to put the interests of these Victorian men and women ahead of his own, and failed to to exercise his utmost due care and diligence to prevent any physical, and psychological harm.

The discharge of ethical conduct by a fiduciary is also fundamental to the legal requirement to act with utmost care. For example, a fiduciary, in this case being Brett Sutton, Chief Health Officer (Victoria) must be able to prove at any given time that the decisions and actions that have been taken are in the best interests of the Victorians. It also goes without saying that higher principles of love, respect and care hold value over any private political alignment or motivation which may be held by the defendant. The Plantiff takes the point that Brett Sutton, Chief Health Officer (Victoria) failed to discharge his fiduciary duty of care to these Victorians through his mandatory medical directives for an experimental medical therapy to which the future effects, adverse effects or potential harms are still largely unknown.

The court would also be aware that over 100 conditions are listed in adverse event reports data in the UK, USA, Europe and Australia such as cardiac disease, haematological conditions, renal conditions, auto-immune disorders and neurological conditions, and as such the claims which have been made to support and enforce the mandates such as to “eliminate or reduce the risk to public health” and they are “rea­sonably necessary to protect public health through preventing serious illness, and death, and as much as possible disease transmission” is without justification, or evidence based assesment.

BALANCING OF INTERESTS

The first question that must be addressed is what is the compelling interest of the state that is being sought to be advanced? As in Midland Milk the present matter deals with constitutional rights, albeit fundamental constitutional rights under the Victorian Constitution. Therefore, the same test of balancing the com­pelling interests of the state and the fundamental rights of the individual is appropriate (reference can also be made to the American cases). Just as at 225E in Midland the defendant was required to show that the regulation was a reasonable regulation in the public interest, so too must the respondent show that the mandates are a reasonable directive in the public interest. Likewise in Midland the onus of proof is upon the respondent. The mandates are not only arbitrary. capricious and unreasonable in their operation within Victoria, but these mandates further create an absurdity to “public health” by denying heathy, non-vaccinated individuals their ability to enter their work premises, while simultaneously allowing vacci­nated individuals who have the potential to be both infected and transmit the SARS-CoV-2 virus on to others, to enter, and work within these same premises.

Perhaps the Respondent wishes to argue that the public interest of Victoria is be­ing served somehow by these mandates, but if this is the position of the Respondent, the onus falls on the Respondent to produce such a case. Clearly, the Respondent cannot tip the scales of justice in favour of the state’s compeling interests against the constitutional rights of the Plantiff. These mandates must be declared void as ultra vires the Con­stitution of Victoria by being an unreasonable and arbitirary infringement of constitutional fundamental rights.