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TRUE DEMOCRACY True: in accordance with fact or reality; not false or erroneous. Democracy: government by the people, direct or representative. demos (Greek):

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Presentation on theme: "TRUE DEMOCRACY True: in accordance with fact or reality; not false or erroneous. Democracy: government by the people, direct or representative. demos (Greek):"— Presentation transcript:

1 TRUE DEMOCRACY True: in accordance with fact or reality; not false or erroneous. Democracy: government by the people, direct or representative. demos (Greek): people. kratos (Greek): rule.

2 CHARTERS OF LIBERTY -v- INSTRUMENTS OF SLAVERY

3 CHARTERS OF LIBERTY INCLUDE: * the HOLY BIBLE * the KORAN * the MAGNA CARTA * the DECLARATION OF INDEPENDENCE * the UNIVERSAL DECLARATION OF HUMAN RIGHTS * etc….

4 INSTRUMENTS OF SLAVERY INCLUDE: * the awards, doings and proceedings to the prejudice of your people in any of the premises. * Acts of Parliament which subvert and extirpate the laws and liberties of this kingdom. * etc… INSTRUMENTS OF SLAVERY INCLUDE: * the awards, doings and proceedings to the prejudice of your people in any of the premises. * Acts of Parliament which subvert and extirpate the laws and liberties of this kingdom. * etc…

5 Examples of an Acts of Parliament which extirpate the Right to Trial by Jury: District Court Act 1973: s.76A Action to be tried without jury unless required in the interests of justice. (1) An action is to be tried without a jury, unless the Court orders otherwise. Supreme Court Act 1970; s.85 Trial without jury unless required in interests of justice. (1) Proceedings in any Division are to be tried without a jury, unless the Court orders otherwise. Federal Court of Australia Act 1976: s.39 Trial without jury. In every suit in the Court, unless the Court or a judge otherwise orders, the trial shall be by a judge without a jury.

6 Three Arms of Democratic Government: 1. Executive: "the person, group or branch of government that has the duty, and the power of putting the laws into effect". 2. Parliament: "from the French word parlement, meaning a discussion or debate". "a council or congress that is the highest lawmaking body in some countries". 3. Court: "a place where justice is administered". "an official dispute-resolution body presided over by either a magistrate or judge".

7 Trial by Jury: Trial: "the act or process of trying or testing". Jury: "a body of persons sworn to render a verdict on questions submitted to them in court of justice". Justice: "the protection of rights and the punishment of wrongs".

8 Thomas Jefferson said: "I believe trial by jury is the only anchor yet imagined by man which can hold a government to the principles of its constitution".

9 Sir William Blackstone said in the 23rd Chapter of his "Commentaries on the Laws of England" entitled "Of the Trial by Jury": "the more it is searched into and understood, the more it is sure to be valued. And this is a species of knowledge most absolutely necessary for every gentleman in the kingdom: as well because he may be frequently called upon to determine in this capacity the rights of others, his fellow-subjects; as because his own property, his liberty, and his life, depend upon maintaining, in it's legal force, the constitutional trial by jury.".

10 Lysander Spooner, in his An Essay on Trial by Jury, said: "It is not only the right and duty of juries to judge what are the facts, what is the law, and what is the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of such laws.". "It is not only the right and duty of juries to judge what are the facts, what is the law, and what is the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of such laws.".

11 No freeman shall be taken, or imprisoned, or be disseised of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any other wise destroyed, nor will we pass upon him nor condemn him unless by the lawful judgment of his equals or by the law of the land. - CAP 29 Magna Carta 1215.

12 The Magna Carta Monument in Canberras Parliamentary Triangle was opened by PM John Howard on 26 th September A few of the inscription says: Magna Carta is now seen as a traditional mandate for trial by jury, justice for all, accountable government and no arbitrary imprisonment. and It is from the people that the Commonwealth gets its ultimate authority and to them that the parliament is responsible.

13 The American Declaration of Independence 1776 says: We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness – That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it…...

14 The American Declaration of Independence 1776 lists among the grounds for their declaring to be absolved from all Allegiance to the British Crown, and that all political Connection between them and the State of Great-Britain is and ought to be totally dissolved is FOR depriving us, in many case, of the Benefits of Trial by Jury: andFOR taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Government:…

15 And we will, that if any Judgment be given from henceforth contrary to the Points of the Charters aforesaid by the Justices, or by other Officers that hold Plea before them against the Points of the Charters they shall be undone and holden for nought. - CAP 11, Confirmation of Charters 1297

16 …your Majesty would also vouchsafe to declare, that awards, doings and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example. - s.11, Petition of Right 1628.

17 Trial by Jury has been entrenched Constitutional Law in Australia since 25 July 1828 with the proclamation of the UKs Imperial Act 9 George IV Chapter 83, known as the Australian Courts Act 1828.

18 A PARLIAMENT has the power, conferred by its Constitution, to make laws for the peace, order and good government but a law in excess of the authority conferred by the Constitution is no law; it is wholly void and inoperative; it confers no rights: it imposes no duties; it affords no protection…… To be valid and binding they must be within the domain of jurisdiction mapped out and delimited in express terms, or by necessary implication, in the Constitution itself. What is not granted to the parliament of the Commonwealth is denied to it. (The Annotated Constitution of the Commonwealth of Australia by Quick & Garran, p 346).

19 A Constitution …enumerates certain cardinal rules, principles and maxims which are intended to be the indiciae of public policy that should guide or bind the Executive and the Judiciary Departments. Thus Magna carta, the Petition of Rights, and the Bill of Rights, contain declarations of rights, privileges, and immunities, which are said to be the inalienable birthright and heritage of every British subject, protecting his liberty from unlawful impairment and his property from spoilation. - Q.&G.

20 A Referendum in 1988 to alter s. 80 of the THE CONSTITUTION to exclude Trial by Jury from cases of Contempt of Court and Court-Martials. RESULT: 80% NO

21 "The trial of civil issues by juries is such an ancient and established institution of English law, that it may well be deemed not only incidental, but even necessary, to the due administration of justice according to English ideas.". - Q. & G.

22 Imperial Acts Application Act 1969 No.30: PART 4 – PENALTIES s.43 Any person guilty of any offence under any Imperial enactment included in Part 1 of the Second schedule for which no punishment is otherwise provided is liable to imprisonment for a term of not more than five years or to a fine not exceeding 20 penalty units, or to both such imprisonment and fine. Imperial Acts Application Act 1969 No.30: PART 4 – PENALTIES s.43 Any person guilty of any offence under any Imperial enactment included in Part 1 of the Second schedule for which no punishment is otherwise provided is liable to imprisonment for a term of not more than five years or to a fine not exceeding 20 penalty units, or to both such imprisonment and fine.

23 Imperial Acts Application Act 1969 No. 30 SECOND SCHEDULE PART 1- Constitutional Enactments (1297)25 Edward 1 (Magna Carta) c.29 ………………………… (1627)3 Charles 1 c.1 (The Petition of Right) (1640)16 Charles 1 c.10 (Habeas Corpus Act 1640) ……………………………….. (1688)1 William and Mary sess.2 c.2 (The Bill of Rights)

24 The SUPREME COURT PROCEDURE ACT No. 49, 1900 says under section 3. (1) In any action by consent of both parties the whole or any one or more of the issues of fact in question may be tried, or the amount of any damages or compensation may be assessed by a Judge without a jury..

25 The INTERPRETATION ACT No. 15, 1987 says under section 30. (1) The amendment or repeal of an Act or statutory rule does not: …(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule..

26 HALSBURYS LAWS OF AUSTRALIA says under ( ): Consent to summary jurisdiction: The consent to be tried summarily must be clear and unequivocal and a failure to carry out the procedures for obtaining the consent will deprive the court of jurisdiction to determine the matters summarily.

27 NATURAL JUSTICE Rules of fair play Any decision reached in contravention of natural justice is void as ultra vires. There are 2 principal rules: (1) The first is the rule against bias - nemo judex in causa sua (or in propria causa). This means that any decision, however fair it may seem, is invalid if made by a person with any financial or other interest in the outcome or any known bias that might have affected his impartiality

28 s.259. The Court or judge may amend any notice of motion, rule nisi, writ, pleading, affidavit, jurat or title of affidavit, record, praecipe, or other proceeding used before the Court or Judge not likely to mislead the opposite party on any point essential to the merits of the case, and may award such reasonable costs of such amendment as to the Court or Judge seem fit. - Common Law Procedure Act No

29 The BILL OF RIGHTS 1688 says that:the late King James the Second, by the assistance of evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the the laws and liberties of this kingdom ……by assuming and exercising a power of dispensing with and suspending of laws... The BILL OF RIGHTS 1688 says that:the late King James the Second, by the assistance of evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the the laws and liberties of this kingdom ……by assuming and exercising a power of dispensing with and suspending of laws...

30 I have said in the Supreme Court of New South Wales and the High Court of Australia that: Judges must never be given nor allowed to assume absolute power whereby they can conceal their own incompetence, corruption and treachery.".

31 Thomas Jefferson said in 1821: The germ of destruction of our nation is in the power of the judiciary, an irresponsible body - working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated..

32 …when a long train of abuses and usurpations, pursuing the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and provide new guards for U.S. Declaration of Independence, July 4, 1778.

33 Commonwealth of Australia Constitution Act, (63 & 64 Victoria, Chapter 12) [9 th July 1900]: Covering Clause 9, THE CONSTITUTION: s. 80: The trial on indictment of any offence against any law of the Commonwealth shall be by jury…. s.118: Full faith and credit shall be given, throughout the Commonwealth to the laws. The public Acts and records, and the judicial proceedings of every State.

34 UPON these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And, if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases! But this we must refer to the ensuing book of these commentaries: only observing for the present, that it is the most transcendent privilege which any subject can enjoy, or with for, that he cannot be affected either in his property, his liberty, or his person,

35 but by the unanimous consent of twelve of his neighbours and equals. A constitution, that I may venture to affirm has, under providence, secured the just liberties of this nation for a long succession of ages. And therefore a celebrated French writer (Montesq. Sp.L.xi.6), who concludes, that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, were strangers to the trial by jury.- Blackstone.


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