Dear Esme, Part 1. followed by part 2 Lore and Order in Aboriginal Community's of Queensland
Firstly Re: Request for consideration to Change of Laws Please find enclosed copies of letters
Dated:-6th August 2008 To The Premier of Queensland, Anna Blight, As to reduce the effects of alcohol with in the Aboriginal communities, and as to maintain a more peaceful, harmonious and natural live style for our people, and on there behalf:- We humble request you as the Premier of Queensland, and the Minister responsible for all Minister of Parliament, to consider and recommend to Parliament to lift the unnecessary burden placed on the Aboriginal people of Queensland.
29th August 2008, From and on behalf of the Premier of Queensland, Anna Blight.In relation to your comments regarding the use of cannabis, there is clear evidence that cannabis use can harmful to the physical, psychological and social health and wellbeing of users.
12th December 2008 To The Premier of Queensland, Anna. We maintain with the support of many aboriginal communities, that the present Queensland laws surrounding cannabis use, and cultivation has caused a division amongst the people, hardship, cost, trauma and an unnecessary burden on the people of Queensland as I also note from your letter.. It would greatly appreciated if you could forward to us copies of the evidence that's been referred to...
Note. Australians first botanist Joseph Banks upon discovering of this plant, categorised it as related to the Cannabinoids family. Which was used in special spiritual ceremonies of thousand of years by our people, Unfortunately, the Laws of Queensland as prohibit this use of cannabis. Traditional (law) Lore being translated "if it came from the earth and grew in your country it was yours, to use and care for' It is most important to uphold the old traditional (law) Lore, as to protect the people, respecting the Lore.Considering, there has never been a lethal over does of cannabis recorded in humans world wide .and for some years we have requested Governments for Australian to forward any unquestionable evidence that supports cannabis prohibition. (nothing received to date) .
We ask if you could copy and pass around your community, this abuse of power must be stopped, We are only asking for small thing, as to let Aboriginal (law) Lore of the land to be understood and respected by all.
Your opinion or any helpful comments appreciated.
Yours faithfully
Les McDonald
Chief Lore Officer
Aboriginal Embassy Victoria
Part 2. Lore and Order in Aboriginal Community's of QueenslandRe: Request The Act the Queensland Parliament the lawful power to make Laws for the Aboriginal people of Queensland.Enclosed copies of letters Dated:-
4th January 2010 To The Premier of Queensland, Anna Blight, I have been requested to ask you to clarify (forward) the Act, if any, that gives the Queensland Parliament the proper lawful power to make laws for peace, order and good Government for the Aboriginal People of Queensland. and to also clarify the Courts Jurisdiction over the Aboriginial people of Queensland .
11th February 2010 From and on behalf The Premier of Queensland, Anna Blight, referred to section 2 of the Constitution Act 1867 (Old) states; "Within the said Colony Her Majesty shall have power by the advice and consent of the said Assembly to make laws for peace welfare and good government of the colony in all cases whatsoever"
17th May 2010 To The Premier of Queensland, Anna Blight, Sadly, it appears that the issue concerning the Courts Jurisdiction over the Aboriginal people has been overlooked. ..and Considering the Act 1867, which makes no reference to the Aboriginal people at all, as that time Terra-Nullis was advocated by the legal profession which remained in vogue up until the fiction of terra nullius was rejected by the High Court in Mabo Case, 1992.
23 June 2010 From and on behalf The Premier of Queensland, Anna Blight.. For a more detailed response to your questions. however, this matter has been referred to the Honourable Cameron Dick MP, Attorney-General and Minister for Industrial Relations for his consideration and reply direct to you ....also been referred to the Honourable Desley Boyle MP. Minister for Local Government and Aboriginal and Torres Strait Islander Partnerships for there information.
It is of interest to note that the Premier has referred the issues to other Ministers, Surely the requested documents are within the easy reach of the Premier Office, as assumed by general public. Accountability is now a must for all.
It is most urgent the traditional (Law) Lore and belifes are upheld, in matters were no other has suffered, any damage or loss. Respect the Lore
Yours faithfully
Les McDonald
Chief Lore Officer
Aboriginal Embassy Victoria
28th June 2010
Tuesday, June 29, 2010
Tuesday, May 18, 2010
To The Premier of Victoria 17/05/10
The Premier of Victoria
John Brumby
Level 1 Treasury Place 19th May 2010
Melbourne 3001
Dear Premier, John Brumby.
Re Request to clarify the States role in maintain Aboriginal Affairs
As you will be aware all states handed responsibility regarding Aboriginal people over to the Commonwealth back 1974/5, Victoria the only state that withdrew from this arraignment, as to maintain the states role in protect the welfare of the Aboriginal people of Victoria.
The policy coordinating role remaining with the Victorian Department of the Premier. As to keep our records in good order, I ask if you can forward the functions and role the Victoria government holds in regards to the well-fare and control over the Aboriginal people of Victoria.
I thank you
Yours faithfully
Les McDonald
Chief Lore Officer
Aboriginal Embassy Victoria
John Brumby
Level 1 Treasury Place 19th May 2010
Melbourne 3001
Dear Premier, John Brumby.
Re Request to clarify the States role in maintain Aboriginal Affairs
As you will be aware all states handed responsibility regarding Aboriginal people over to the Commonwealth back 1974/5, Victoria the only state that withdrew from this arraignment, as to maintain the states role in protect the welfare of the Aboriginal people of Victoria.
The policy coordinating role remaining with the Victorian Department of the Premier. As to keep our records in good order, I ask if you can forward the functions and role the Victoria government holds in regards to the well-fare and control over the Aboriginal people of Victoria.
I thank you
Yours faithfully
Les McDonald
Chief Lore Officer
Aboriginal Embassy Victoria
Monday, May 17, 2010
The Premier of Queensland 17/05/2010
Your Ref No. LJP/PH -TF/10487-DOC/109933
The Premier of Queensland
100 George Street
PO. Box 15185 City East 17th May 2010
Brisbane 4002
Dear Premier, Anna Bligh,
Re: The Act to make laws for the Aboriginal People andRe: Courts Jurisdiction over Aboriginal people of Queensland
I acknowledge the letter of 11 February 2010 on your behalf. Sadly, it appears that the issue concerning the Courts Jurisdiction over the Aboriginal people has been overlooked. I trust that you will assure that this matter will be addressed in the very near future, as the matter is now most urgent
In response to specific question previously raised about legislative power to make laws, it
appears that the answer relies on section 2 of the Constitution Act 1867 (Qld) which states.
"2. Legislative Assembly constituted With in said Colony of Queensland Her Majesty shall have power by and with the advice and consent of the said Assembly to make laws for peace welfare and good government of the colony in all cases whatsoever"
Considering the Act 1867, which makes no reference to the Aboriginal people at all, as that time Terra-Nullis was advocated by the legal profession which remained in vogue up until the fiction of terra nullius was rejected by the High Court in Mabo Case, 1992.
As the contents of your letter cast a shadow of doubt over the Queensland Government Legislative to make laws for the Aboriginal people of Queensland, as it appears to have only relied on the Constitution Act 1867, ( Enact under the disguise of Terra-Nullis) You may well understand the reason that we can not accept Mr N. Williams explanation on the matter.
If you are aware of any other documents that offers supports or confirms that Queensland Government has the proper legislated power to make laws of the Aboriginal people of Queensland, forwarding a copy of such, would be greatly appreciated, as simplicity is the most convenient way to the truth.
I thank you
Yours faithfully
Les McDonald
Chief Lore Officer
Aboriginal Embassy Victoria
The Premier of Queensland
100 George Street
PO. Box 15185 City East 17th May 2010
Brisbane 4002
Dear Premier, Anna Bligh,
Re: The Act to make laws for the Aboriginal People andRe: Courts Jurisdiction over Aboriginal people of Queensland
I acknowledge the letter of 11 February 2010 on your behalf. Sadly, it appears that the issue concerning the Courts Jurisdiction over the Aboriginal people has been overlooked. I trust that you will assure that this matter will be addressed in the very near future, as the matter is now most urgent
In response to specific question previously raised about legislative power to make laws, it
appears that the answer relies on section 2 of the Constitution Act 1867 (Qld) which states.
"2. Legislative Assembly constituted With in said Colony of Queensland Her Majesty shall have power by and with the advice and consent of the said Assembly to make laws for peace welfare and good government of the colony in all cases whatsoever"
Considering the Act 1867, which makes no reference to the Aboriginal people at all, as that time Terra-Nullis was advocated by the legal profession which remained in vogue up until the fiction of terra nullius was rejected by the High Court in Mabo Case, 1992.
As the contents of your letter cast a shadow of doubt over the Queensland Government Legislative to make laws for the Aboriginal people of Queensland, as it appears to have only relied on the Constitution Act 1867, ( Enact under the disguise of Terra-Nullis) You may well understand the reason that we can not accept Mr N. Williams explanation on the matter.
If you are aware of any other documents that offers supports or confirms that Queensland Government has the proper legislated power to make laws of the Aboriginal people of Queensland, forwarding a copy of such, would be greatly appreciated, as simplicity is the most convenient way to the truth.
I thank you
Yours faithfully
Les McDonald
Chief Lore Officer
Aboriginal Embassy Victoria
Monday, April 19, 2010
futyre health or Wealth
Minister for Mental Health
Ms. Lisa May Neville
Level 22, 50 Lonsdale St.
Melbourne 3000 16th April 2010
Re:- Our peoples health and well-being
Firstly As by way of relevant background, I offer the following:- 1996 Jeff Kennett (liberal) Government implemented ways to tackle the problem of drug abuse in our community. The Premiers Drug Advisory Council was formed, Chaired by Professor David Pennington.
On the 31st May 1996 Professor David Pennington presented his report to Parliament which recommended (7.2) " Cultivation of up to five cannabis plants per household for personal use should no longer be an offence" Soon after Labour Party was elected to Govern, Victorian Police statistics showed on that around 10,000 Victorian citizen’s are charged with cannabis related charges each year. Legal Aid spent $14 million on legal representation defending cannabis consumers that pleaded guilty. no doubt a financial benefit to the legal profession, which are the only winners of cannabis prohibition.
1996 -2006 150, 000 Victorians were convicted for cannabis related offences. It is of interest to note ‘Turning the Tide" strategy page 18 States "A recent analysis by Access Economics estimates that spending on illegal drugs in Australia amounts to $7 Billion per year, Seventy per cent spent on illegal drugs is cannabis" The Commonwealth of Australian Statistics reveals 55,494 Cannabis offenders occurred between 2001-2002. Background Ends here
As you would be well aware that there has never been a lethal over dose of cannabis recorded in humans beings world wide. We feel if the (1996) recommendation of Professor David Pennington had of been enacted this would have reduced the health risk of our people also reduced the cost, so that cannabis could be used as intended as beverage or as food additive in cooking, and to maintain a more peaceful and harmonies lifestyle for all concerned, Yes, smoking is a health hazard. Alcohol is ticket to family violence and is a death sentence
In our letter 12th February, 2008:- "Due to the growing unrest and doubt surrounding Parliaments, the Victorian Governments ability to protect our people, as to ease our concerns regarding hydroponics grown cannabis" we requested the most urgent need to amend the drugs Poisons and Controlled Substance Act 1981, It now appears you have failed to consider this as the Minister for public Health, indicating support for Lawyers increasing wealth.. Yes Ms Neville enough is enough.
My duty is to prevent the Aboriginal people of Victoria from coming in contact with the Criminal Justice system of Victoria, as 80% of our population feel that cannabis use is far less harmful to our people then legal drug Alcohol. and it must be corrected with the future health and well being of our people in mind. I also take this opportunity as to clarify the situation:-
I ask if you can forward the Act that gives The Victorian Parliament the power to make laws for peace order and good Government for the Aboriginal people of Victoria. .... I thank you
Yours faithfully,
Les McDonald,
Chief Lore Officer
Aboriginal Embassy Victoria
Ms. Lisa May Neville
Level 22, 50 Lonsdale St.
Melbourne 3000 16th April 2010
Re:- Our peoples health and well-being
Firstly As by way of relevant background, I offer the following:- 1996 Jeff Kennett (liberal) Government implemented ways to tackle the problem of drug abuse in our community. The Premiers Drug Advisory Council was formed, Chaired by Professor David Pennington.
On the 31st May 1996 Professor David Pennington presented his report to Parliament which recommended (7.2) " Cultivation of up to five cannabis plants per household for personal use should no longer be an offence" Soon after Labour Party was elected to Govern, Victorian Police statistics showed on that around 10,000 Victorian citizen’s are charged with cannabis related charges each year. Legal Aid spent $14 million on legal representation defending cannabis consumers that pleaded guilty. no doubt a financial benefit to the legal profession, which are the only winners of cannabis prohibition.
1996 -2006 150, 000 Victorians were convicted for cannabis related offences. It is of interest to note ‘Turning the Tide" strategy page 18 States "A recent analysis by Access Economics estimates that spending on illegal drugs in Australia amounts to $7 Billion per year, Seventy per cent spent on illegal drugs is cannabis" The Commonwealth of Australian Statistics reveals 55,494 Cannabis offenders occurred between 2001-2002. Background Ends here
As you would be well aware that there has never been a lethal over dose of cannabis recorded in humans beings world wide. We feel if the (1996) recommendation of Professor David Pennington had of been enacted this would have reduced the health risk of our people also reduced the cost, so that cannabis could be used as intended as beverage or as food additive in cooking, and to maintain a more peaceful and harmonies lifestyle for all concerned, Yes, smoking is a health hazard. Alcohol is ticket to family violence and is a death sentence
In our letter 12th February, 2008:- "Due to the growing unrest and doubt surrounding Parliaments, the Victorian Governments ability to protect our people, as to ease our concerns regarding hydroponics grown cannabis" we requested the most urgent need to amend the drugs Poisons and Controlled Substance Act 1981, It now appears you have failed to consider this as the Minister for public Health, indicating support for Lawyers increasing wealth.. Yes Ms Neville enough is enough.
My duty is to prevent the Aboriginal people of Victoria from coming in contact with the Criminal Justice system of Victoria, as 80% of our population feel that cannabis use is far less harmful to our people then legal drug Alcohol. and it must be corrected with the future health and well being of our people in mind. I also take this opportunity as to clarify the situation:-
I ask if you can forward the Act that gives The Victorian Parliament the power to make laws for peace order and good Government for the Aboriginal people of Victoria. .... I thank you
Yours faithfully,
Les McDonald,
Chief Lore Officer
Aboriginal Embassy Victoria
Wednesday, March 24, 2010
about Lore-about time
'In 1836 the Supreme Court of New South Wales held that it had jurisdiction to deal with Mr
Murrell, an Aborigine, who was charged with the murder of another Aborigine. Counsel for
the accused, put the following argument to the Court:" nt2
"This country was not originally desert, or peopled from the mother country, having had a
population far more numerous than those that have since arrived from the mother
country. Neither can it be called a conquered country, as Great Britain was never at war
with the natives, not a ceded country either; it, in fact, comes within neither of these, but
was a country having a population which had manners and customs of their own,
and we have come to reside among them; therefore in point of strictness and analogy to
our law, we are bound to obey their laws, not they to obey ours. This argument was rejected. Australian law has rejected the idea of continuing Aboriginal sovereign rights to make laws after 1788" nt2.
"While Australian law recognises that Aboriginal legal systems existed, and traditional law
continues to exist, at the moment, it only recognises an Aboriginal legal system for the purpose of establishing native title rights with respect to land" nt2
"When common law lawyers and judges, have looked for law in Aboriginal societies, there has been a tendency to treat law as divinely inspired revelations and not rules deriving their content and form from social needs; to treat law as religious rules, and not as dispute resolution mechanisms. Many would query the appropriateness of such a classification. However, it is one that has appealed to the High Court." nt2
Aboriginal (law) Lore contained rules for their society to adhere to, if any member violated the rules he or she would be punished as required under the Lore, no-one was above the Lore, as the lore was enshrined in religious and spiritual understanding of the beginning of time.
Today 2010 Due to the Howard Government's Intervention program, in isolated aboriginal nations, this being the first time many adult's in these communities have seen "whitefella" as the English language is only, third language, and Australian Law's are not widely known, or practiced, These groups maintain traditional (law) lore, spiritual religious practice.
In these communities people live their lives under traditional law, and many disputes are resolved in accordance with the Aboriginal legal system. For such people there is only one legal system and it is Aboriginal.
"In the British tradition, sovereignty used to reside with the King or Queen as God's
representative on earth, or at least in England. Thus the power of the King or Queen - also
called the sovereign – was originally absolute. The sovereign could do whatever he or she
wanted, and it was the law that whatever he or she did could never be wrong" nt2.
"Over time this changed. Beginning with Magna Carta in 1215 it was recognised that
parliament also had some sovereign rights, that the making of future laws required the approval of parliament and that ordinary people had legal rights that the sovereign could not take away, without parliament's approval" nt2
"Following this tradition, in Australia we now say that sovereignty resides with parliament, and the people elect the members of the various Australian parliaments. However we also sometimes say that sovereignty resides with the Crown, by which we mean the Governor or
Governor-General acting on the advice of his or her Ministers. Thus the Governor-General or
a Minister signs extradition treaties, parliament does not approve them. Because the Australian Constitution limits or regulates the powers of the Governor-General and of all Australian parliaments and courts, it is often seen as a document embodying conceptions of sovereignty, as a fundamental or supreme law" nt2.
"Generally speaking, the Commonwealth and States are recognised as sovereignty entities. The notion of sovereignty residing in the Crown or parliament permits the recognition of equal or lesser rights of sovereignty in Aboriginal communities. However, it has not been the
constitutional history of Australia to recognise Aboriginal communities as possessing sovereign rights." nt2
There is still some debate as when the British sovereignty and laws applied to this land, some members of the legal profession claim since
1788 as the "Privy Council had held that uninhabited lands settled by English subjects would be governed by the laws of England. "where the lands are claimed by right of occupancy only, by finding them desert and uncultivated… all the English laws then in being, which are the
birthright of every subject, are immediately there in force."nt2
1828 as "reception of English law was clarified by the Australian Courts Act 1828, which provided that all laws and statutes in force in England at the date of the enactment"nt2.
1875 when The Pacific Islanders Protection Act 1875 came in to beings, s. 6. Power for Her Majesty to exercise jurisdiction over British subjects in islands of the pacific ocean. to erect a court of justice for British subjects in the islands of the pacific. to make ordinances.
"The most important law of Australia is the Constitution of Australia, which describes Australia's system of constitutional monarchy, and forms the basis for the government of Australia. All of the States and territories of Australia that are self-governing are separate jurisdictions, and have their own system of courts and parliaments. The systems of laws in each State are influential on each other, but not binding. Laws passed by the Parliament of Australia apply to the whole of Australia"nt2.
However. The Australian Constitution did not give the Commonwealth Parliament power to make laws for peace order and good government for the Aboriginal race till after (Con Job) referendum in 1967
"1994 In Walker v New South Wales. Mason CJ ruled that the notion of sovereignty meant that all Australian parliaments could pass laws that applied to Aboriginal people, whether or not the Aboriginal people consented to those laws. Australians parliaments had "legislative competence to regulate or affect the rights of Aboriginal people" In a later case it was also held that customary Aboriginal Law was not recognised by the common law of New South Wales. Quoted. The Murrell's case (1836) has been taken as settling the matter that Australian courts have jurisdiction over Aboriginal people regardless of whether Aboriginal laws are relevant to the offence." nt2
2010 In the Crown v McDonald, the accused challenged the Courts jurisdiction, based on the that Victorian Government did not have the legislated power to make laws for peace, order. and good government for the Aboriginal people of Victoria, subsequently the Courts had no jurisdiction, that the current laws had created an unnecessary burden on the people. and submitted that cultivation of cannabis under Aboriginal lore is not illegal. His Honour Judge D. Allen and the Crown relied what Sir Harry Gibbs said in the Coe v The Commonwealth and what was said by Sir Anthony Mason in Walker v New South Wales.
The accused made an interlocutory appeal against His Honors ruling, which was heard at the Supreme Court appeal on the 11th March 2010 Before Judges Ashley, Neave and Redlich, all agreed that the learned Judge, rightly concluded the points raised lacked any legal merit.
"Now There is only one legal system in Australia, and only one "law" and that is Australian law. Under the Australian legal system there are two types or sources of law: laws made by parliament (legislation) and laws made the courts (common law). Aboriginal law can only be recognised if Australian law says"nt2
Traditional (Aboriginal nations) had two legal system, as to maintain a harmonious and peaceful society, being, Law for women, Law for men. as they were both different and would need different Laws. Under one Lore.
"In the case of conquered or ceded lands, the general rule was that the laws of the country continued until those laws were altered by the British parliament, or the Crown under its prerogative powers."nt2 The lore has continued unbroken unchanged since recorded time
There is only two ways that the lore of this land can be extinguished, by the Commonwealth of Australia Parliament saying so, or by the Aboriginal people letting it slowly fade away. For a society with out Lore- Sovereignty does not exist.
"It is sometimes said that an Aboriginal person can only be truly said to be bound by traditional law if he or she is living a wholly "traditional" lifestyle, that is, no electricity, no fridge and no gun for hunting. This point of view fails to recognise the right of Aboriginal people to determine how they will exercise their right to life. It is also contrary to the way the High Court looks at native title rights and interests" nt2.
"A person does not cease to exercise a traditional right by exercising the traditional right in a contemporary way. Accordingly, traditional laws may still operate in Aboriginal communities that have electricity and other material manifestations of contemporary life." (nt2)
nt2 acknowledgment Northern Territory Law Reform Committee: Background Paper 2
Considering you have read this far, I ask , Should Aboriginal Lore System be recognised and considered by the Court system of Australia?... your opinion appreciated ....I thank you
Les McDonald
Chief Lore Officer
Aboriginal Embassy Victoria (aboriginalembassyvic@yahoo.com.au)
Murrell, an Aborigine, who was charged with the murder of another Aborigine. Counsel for
the accused, put the following argument to the Court:" nt2
"This country was not originally desert, or peopled from the mother country, having had a
population far more numerous than those that have since arrived from the mother
country. Neither can it be called a conquered country, as Great Britain was never at war
with the natives, not a ceded country either; it, in fact, comes within neither of these, but
was a country having a population which had manners and customs of their own,
and we have come to reside among them; therefore in point of strictness and analogy to
our law, we are bound to obey their laws, not they to obey ours. This argument was rejected. Australian law has rejected the idea of continuing Aboriginal sovereign rights to make laws after 1788" nt2.
"While Australian law recognises that Aboriginal legal systems existed, and traditional law
continues to exist, at the moment, it only recognises an Aboriginal legal system for the purpose of establishing native title rights with respect to land" nt2
"When common law lawyers and judges, have looked for law in Aboriginal societies, there has been a tendency to treat law as divinely inspired revelations and not rules deriving their content and form from social needs; to treat law as religious rules, and not as dispute resolution mechanisms. Many would query the appropriateness of such a classification. However, it is one that has appealed to the High Court." nt2
Aboriginal (law) Lore contained rules for their society to adhere to, if any member violated the rules he or she would be punished as required under the Lore, no-one was above the Lore, as the lore was enshrined in religious and spiritual understanding of the beginning of time.
Today 2010 Due to the Howard Government's Intervention program, in isolated aboriginal nations, this being the first time many adult's in these communities have seen "whitefella" as the English language is only, third language, and Australian Law's are not widely known, or practiced, These groups maintain traditional (law) lore, spiritual religious practice.
In these communities people live their lives under traditional law, and many disputes are resolved in accordance with the Aboriginal legal system. For such people there is only one legal system and it is Aboriginal.
"In the British tradition, sovereignty used to reside with the King or Queen as God's
representative on earth, or at least in England. Thus the power of the King or Queen - also
called the sovereign – was originally absolute. The sovereign could do whatever he or she
wanted, and it was the law that whatever he or she did could never be wrong" nt2.
"Over time this changed. Beginning with Magna Carta in 1215 it was recognised that
parliament also had some sovereign rights, that the making of future laws required the approval of parliament and that ordinary people had legal rights that the sovereign could not take away, without parliament's approval" nt2
"Following this tradition, in Australia we now say that sovereignty resides with parliament, and the people elect the members of the various Australian parliaments. However we also sometimes say that sovereignty resides with the Crown, by which we mean the Governor or
Governor-General acting on the advice of his or her Ministers. Thus the Governor-General or
a Minister signs extradition treaties, parliament does not approve them. Because the Australian Constitution limits or regulates the powers of the Governor-General and of all Australian parliaments and courts, it is often seen as a document embodying conceptions of sovereignty, as a fundamental or supreme law" nt2.
"Generally speaking, the Commonwealth and States are recognised as sovereignty entities. The notion of sovereignty residing in the Crown or parliament permits the recognition of equal or lesser rights of sovereignty in Aboriginal communities. However, it has not been the
constitutional history of Australia to recognise Aboriginal communities as possessing sovereign rights." nt2
There is still some debate as when the British sovereignty and laws applied to this land, some members of the legal profession claim since
1788 as the "Privy Council had held that uninhabited lands settled by English subjects would be governed by the laws of England. "where the lands are claimed by right of occupancy only, by finding them desert and uncultivated… all the English laws then in being, which are the
birthright of every subject, are immediately there in force."nt2
1828 as "reception of English law was clarified by the Australian Courts Act 1828, which provided that all laws and statutes in force in England at the date of the enactment"nt2.
1875 when The Pacific Islanders Protection Act 1875 came in to beings, s. 6. Power for Her Majesty to exercise jurisdiction over British subjects in islands of the pacific ocean. to erect a court of justice for British subjects in the islands of the pacific. to make ordinances.
"The most important law of Australia is the Constitution of Australia, which describes Australia's system of constitutional monarchy, and forms the basis for the government of Australia. All of the States and territories of Australia that are self-governing are separate jurisdictions, and have their own system of courts and parliaments. The systems of laws in each State are influential on each other, but not binding. Laws passed by the Parliament of Australia apply to the whole of Australia"nt2.
However. The Australian Constitution did not give the Commonwealth Parliament power to make laws for peace order and good government for the Aboriginal race till after (Con Job) referendum in 1967
"1994 In Walker v New South Wales. Mason CJ ruled that the notion of sovereignty meant that all Australian parliaments could pass laws that applied to Aboriginal people, whether or not the Aboriginal people consented to those laws. Australians parliaments had "legislative competence to regulate or affect the rights of Aboriginal people" In a later case it was also held that customary Aboriginal Law was not recognised by the common law of New South Wales. Quoted. The Murrell's case (1836) has been taken as settling the matter that Australian courts have jurisdiction over Aboriginal people regardless of whether Aboriginal laws are relevant to the offence." nt2
2010 In the Crown v McDonald, the accused challenged the Courts jurisdiction, based on the that Victorian Government did not have the legislated power to make laws for peace, order. and good government for the Aboriginal people of Victoria, subsequently the Courts had no jurisdiction, that the current laws had created an unnecessary burden on the people. and submitted that cultivation of cannabis under Aboriginal lore is not illegal. His Honour Judge D. Allen and the Crown relied what Sir Harry Gibbs said in the Coe v The Commonwealth and what was said by Sir Anthony Mason in Walker v New South Wales.
The accused made an interlocutory appeal against His Honors ruling, which was heard at the Supreme Court appeal on the 11th March 2010 Before Judges Ashley, Neave and Redlich, all agreed that the learned Judge, rightly concluded the points raised lacked any legal merit.
"Now There is only one legal system in Australia, and only one "law" and that is Australian law. Under the Australian legal system there are two types or sources of law: laws made by parliament (legislation) and laws made the courts (common law). Aboriginal law can only be recognised if Australian law says"nt2
Traditional (Aboriginal nations) had two legal system, as to maintain a harmonious and peaceful society, being, Law for women, Law for men. as they were both different and would need different Laws. Under one Lore.
"In the case of conquered or ceded lands, the general rule was that the laws of the country continued until those laws were altered by the British parliament, or the Crown under its prerogative powers."nt2 The lore has continued unbroken unchanged since recorded time
There is only two ways that the lore of this land can be extinguished, by the Commonwealth of Australia Parliament saying so, or by the Aboriginal people letting it slowly fade away. For a society with out Lore- Sovereignty does not exist.
"It is sometimes said that an Aboriginal person can only be truly said to be bound by traditional law if he or she is living a wholly "traditional" lifestyle, that is, no electricity, no fridge and no gun for hunting. This point of view fails to recognise the right of Aboriginal people to determine how they will exercise their right to life. It is also contrary to the way the High Court looks at native title rights and interests" nt2.
"A person does not cease to exercise a traditional right by exercising the traditional right in a contemporary way. Accordingly, traditional laws may still operate in Aboriginal communities that have electricity and other material manifestations of contemporary life." (nt2)
nt2 acknowledgment Northern Territory Law Reform Committee: Background Paper 2
Considering you have read this far, I ask , Should Aboriginal Lore System be recognised and considered by the Court system of Australia?... your opinion appreciated ....I thank you
Les McDonald
Chief Lore Officer
Aboriginal Embassy Victoria (aboriginalembassyvic@yahoo.com.au)
Saturday, March 13, 2010
Lieutenant Governor request
Lieutenant Governor
Chief Justice Marilyn Warren
210 William Street
Melbourne 3000 15 March 2010
Dear Lieutenant Governor, Marilyn Warren
I write to bring to your attention the following:- , The Pacific Islanders Protection Act 1875 came in to beings, s. 6. Power for Her Majesty to exercise jurisdiction over British subjects in islands of the pacific ocean. to erect a court of justice for British subjects in the islands of the pacific to make ordinances.
"It shall be lawful for Her Majesty to exercise power and jurisdiction over her subjects within any islands and places in the Pacific Ocean not being within Her Majesty's dominions, nor within the jurisdiction of any civilized power, ...to make regulations for the Government of her subjects in such islands and places, and to impose penalties, forfeitures, or imprisonment's for the breach of such regulations"
"It shall be lawful for Her Majesty, by order in council to create a court of justice and civil, criminal and Admiralty jurisdiction over Her Majesty's subjects within islands and places to which the authority of the said High Commissioner shall extend, and with power to take cognizance of all crimes and offences committed by Her Majesty's subjects within any of the said islands and places, or upon the sea, or in any haven, river, creek, or place within jurisdiction of the Admiralty. and Her Majesty..."
Considering that the above Act, which is still valid and adhered to by the Courts of Victoria only relates to Her Majesty Courts jurisdiction over Her Majesty's subjects, and does not include the natives, Aboriginal people of this land. being a civilisation that had it own rule of Lore to guide, direct, protect and control their society at that time.
It is now open to question if the Australian Courts Act 1928 covers the Aboriginal people of Australia, considering the English meaning of Terra Nullus. As the Pacific Islanders Protection Act 1875 "to erect a court of justice for British subjects in the islands of the pacific. to make ordinances" .. "It shall be lawful for Her Majesty, by order in council to create a court of justice and civil, criminal and Admiralty jurisdiction over Her Majesty's subjects"
However the Aboriginal People are not yet British subjects., Therefore the Australian Courts have no Jurisdiction.
I humbly ask, if you could forward the Act or any other document that Her Majesty Courts jurisdiction includes the Aboriginal people of Australia that are not British subjects .
Yours faithfully
Les McDonald
Chief Lore Officer
Chief Justice Marilyn Warren
210 William Street
Melbourne 3000 15 March 2010
Dear Lieutenant Governor, Marilyn Warren
I write to bring to your attention the following:- , The Pacific Islanders Protection Act 1875 came in to beings, s. 6. Power for Her Majesty to exercise jurisdiction over British subjects in islands of the pacific ocean. to erect a court of justice for British subjects in the islands of the pacific to make ordinances.
"It shall be lawful for Her Majesty to exercise power and jurisdiction over her subjects within any islands and places in the Pacific Ocean not being within Her Majesty's dominions, nor within the jurisdiction of any civilized power, ...to make regulations for the Government of her subjects in such islands and places, and to impose penalties, forfeitures, or imprisonment's for the breach of such regulations"
"It shall be lawful for Her Majesty, by order in council to create a court of justice and civil, criminal and Admiralty jurisdiction over Her Majesty's subjects within islands and places to which the authority of the said High Commissioner shall extend, and with power to take cognizance of all crimes and offences committed by Her Majesty's subjects within any of the said islands and places, or upon the sea, or in any haven, river, creek, or place within jurisdiction of the Admiralty. and Her Majesty..."
Considering that the above Act, which is still valid and adhered to by the Courts of Victoria only relates to Her Majesty Courts jurisdiction over Her Majesty's subjects, and does not include the natives, Aboriginal people of this land. being a civilisation that had it own rule of Lore to guide, direct, protect and control their society at that time.
It is now open to question if the Australian Courts Act 1928 covers the Aboriginal people of Australia, considering the English meaning of Terra Nullus. As the Pacific Islanders Protection Act 1875 "to erect a court of justice for British subjects in the islands of the pacific. to make ordinances" .. "It shall be lawful for Her Majesty, by order in council to create a court of justice and civil, criminal and Admiralty jurisdiction over Her Majesty's subjects"
However the Aboriginal People are not yet British subjects., Therefore the Australian Courts have no Jurisdiction.
I humbly ask, if you could forward the Act or any other document that Her Majesty Courts jurisdiction includes the Aboriginal people of Australia that are not British subjects .
Yours faithfully
Les McDonald
Chief Lore Officer
Tuesday, December 22, 2009
court Transcripts 10/11/09
County Court report Transcript , Tuesday 10th November 2009
Honourable Judge Cohen
Office of Public Prosecution Mr. Cordy.
OPP. Your Honour, Mr McDonald appears in person
HON. Yes, He can come forward to the Bar table, Mr McDonald
ACC. Thank you
HON. Just over here.
OPP. Your Honour will recall that I asked for this matter to be mentioned, as to ascertain what Mr. McDonald intentions were- - -
HON. Yes
OPP. In relation to pursuing this matter or to determine whether in some way , the matter could be resolved . Now I've had the opportunity to have a short conversation with Mr McDonald and tell him the Crown's position is, in relation to the matter.
HON. Yes,
OPP. He's been thinking about that. I don't know what he wants to do although I suspect that he wants to continue with this constitutional argument and it may be that- well, if that's the case, clearly, the matter won't be held this year. But, in any event, perhaps Your Honour could fire at Mr. Mc Donald what he wants to do. He understands what I've been saying.
HON. Yes, Mr McDonald your case is in the list of trials for this circuit and that's why I've call it on for mention to see what is happening with it. I've read what's on the file, including the transcript of what occurred with Judge Chettle at a directions hearing-case conference, I think is was in October last year. ...First of all, I've read your letter setting out why you haven't got legal representation. That of course, is your choice, but I'm obligated to tell you that if the question of costs of legal representation is part of the issue for you, you are entitled to apply for legal aid and you will do that through Victorian Legal Aid.
If Victoria Legal Aid were to turn you down for funding, in relation to legal representation for this trial, you are entitled to apply to this court, under 360A of the and my Associate has a copy of that to give you.. I'm giving that to you, because you're not represented at this stage- - -
ACC. Yes, Your Honour.
HON. - - - and I'm obligated to tell you about these rights. They're decisions for you to make- - -
ACC. Okay.
HON. - - - but obviously, and I think you have been told this before, including by Judge Chettle, having representation can be very useful in a case in this court, but it's ultimately a decision for you and you've got the right , as I say, to apply to Legal Aid or if they refuse you, to apply to the court to - that application would be to direct Legal Aid to give funding if the court sees fit having heard all the circumstances.
ACC. Thanks very much, very good.
HON. Now about the issues, I've read that you say you want to run the argument that the laws of the state of Victoria don't apply to you as an Aboriginal person?
ACC. That's correct
HON. And in particular, the Drugs, Poisons and Controlled Substances Act doesn't apply to you.
ACC. That's correct
HON. I'm not deciding that issue today of course.
ACC. All right
HON. But I've read the materials and it seems to me that you've embraced and used the Laws of the State of Victoria at times, in several ways and. indeed, if seemed to me, from the record of interview with police, that your real argument is, you challenge the content of those laws. You don't think they should be what they are.
ACC. I don't think they're -I think- basically. I've been fighting these - marijuana laws since 1975, I've come a long way, I've been battered through it all. Now my policy- the Aboriginal side, we have to have an alternative to alcohol, it's killing our people and because the marijuana is nature's own it grows in the ground and it's our law, if it's grown on the earth, comes from our country, it is yours.
Now considering no one has ever died from it- You see I'm in a position where I'm looking after thousands of people, I'm trying to- well get them away from alcohol. We've got to find them an alternative, because our race can't hold it, they just -a bit different, maybe in the next two generations, they'll adjust to alcohol. but my main concern is, protect them- the future of the children and the future well being of the people.
I mean, alcohol -I mean, I don't - it's a killer, it's deadly- it's much more harmful then marijuana, because we can't understand why- in South Australia and the Capital Territory and Canberra, you can use it. I can't see why we can't adjust, we've had a long time to think about it, 25 years, why Victoria is placed under restrict rules. Different if someone died from it. No one has ever died..
HON. Well, I'm not going to enter into an argument that - - -
ACC. No, I'm sorry, you're right.
HON. - - - part with you., Mr. McDonald, but it seems to me, your argument is the content of the law, rather than whether it applies to you at all or not and cannabis is an introduced species into Australia, isn't it?
ACC. No, no, up in Cape York, on the Peninsula of Cape York. You'll see it in the Joseph Banks, its a cousin to - - - -
HON. It's a cousin to it, it might - but not the actual Cannabis L plant that's forbidden under the Drugs, Poisons and Controlled Substances Act.
ACC. Well, the Cannabis L plant, I mean, it's probably, I don't know, I'm not really technical, I'm a D.O. on all that, but as a cannabis ( indistinct) boy- it was used by special people, magical men, you call them what you like, spiritual people, all night, they used to go around and they- when they had people like that, they'd have a smoke and they'd dropping the plants on it.
You can -1916, they had them on the New Zealand, no- the Swiss people, just bought some bones back and they had film of it in 1916, smoking out of a biig long thing, because, I mean, its a peaceful drug, I mean that's the point.
HON. This court can't determine that.
ACC. Right
HON. What-all this court can do is decide whether, on the -well you want to challenge this law actually applies to you or not?
ACC, Yes, but that's - - -
HON. But that's not what you're really arguing, you're really arguing you want the laws of Victoria changed.
ACC. Well that's part of it, because I'M looking at the white part, as well as the black.
HON. All right. The question for today is how we're going to proceed with this trial.
ACC. Okay.
HON. Just take - it's your intention is it, to plead not guilty to the charges? See, these charges, normally- I know you've been told by Judge Chettle to, for the relatively small amount involved, this would be normally be heard in the Magistrates' Court.
ACC, Yes
HON. If it's heard in this court and you were- in the magistrates Court, you can plead not guilty.
ACC. Right.
HON But the matter is heard and decided by the Magistrate.
ACC. Yes.
HON. And then there are various rights of appeal, either rehearing to this court or if there's a point of Law involved, an application to the Supreme Court, but it's now in the County Court.
ACC. Right.
HON. If you plead not guilty, there has to be a trial with a jury.
ACC. Right, that's - - -
HON. But question of Law get decided by the Judge
ACC. Right.
HON. And it seems to me that, on any reading, if you want to run argument, that the law doesn't apply to you at all, that would be a point of Law.
ACC. Right.
HON. A Jurisdictional issue for the Judge to decide. As the law presently stands and I don't know if you've had a chance to look at s.446 and following of the Crimes Act? No? Have you taken-I'm not trying to ask about the content of it and I've why you don't want to get lawyers involved, but have you received any legal advice about this point you want to run.
ACC. Well , I have made the point to the department of Public Prosecutions, by Raelene Maxwell.
HON. Yes
ACC. Now, Raelene told me, many-well, last year sometime, the beginning of last year.
HON. This is someone in the Office of Public Prosecution?
ACC. DPP
HON. Yes.
ACC. Okay, Raelene Maxwell. she said to me, if I get an adjournment on the first day, she would get the Act, you know, the paper where it gives them the power and from then on, I've asked her three times and the last time I said all I need is the one piece of paper, which gives the Victorian Government the power to make laws for the Aboriginal race.
Now I have kept this quite, it goes back 1996, no I didn't want people to run around saying, OK, you've no law and I can smash your house up, I can rob you. That is not the point. the point of our law is, you come back to our law-if the thing grew from the earth, it was ours. it was legal to take it. the point is that's the point I'm looking at, because our law said it all right, our Law said, if you're not hurting no one, it's got- I don't know if you know Aboriginal law but is pretty - - -
HON . Very little of it, unfortunately
ACC. It's very strong and very real, though they say it's barbaric, It's not really. if you read our law - - -
HON. That's not what I'm here to argue about or-and I can do nothing about what others say Mr. McDonald.
ACC. Right.
HON. What I am trying to do is work out how this case can proceed through the legal system that is enforced in this state. My duty is to conduct the trials that come before me or-------
ACC. Yes.
HON. ----- deal with them according to the laws created by Parliament.
ACC. Right
HON. Now, if you want to run this argument, how many witnesses do you intend to call?
ACC. I was going to call some Ministers from Melbourne, I - Minister Halpin, all that, so I may as well go all the way with it, but the only- the law I've got is, I'm relying on the DPP to prove to me that they have jurisdiction, that is one of the arguments on it.
HON. Well that's-it's - he Drugs, Poisons and Controlled Substance Act 1981 is the Act which you have been charged and that applies to all person in Victoria.
ACC. Yes, but what happens here, see, I've charged under the Drugs, poisons- It's a narcotic Act on the thing, Now, if you look at- the Australian Government says. cannabis is not a narcotic, it's been erroneously placed as a narcotic. so we're getting this Commonwealth Law- - -
HON. Which Commonwealth Law is that?
ACC .Well, it's the thing I've got-I can show you, I've got a copy - - -
HON. If there's an inconsistency between Commonwealth Law and State Law, then it's a matter that has some constitution ramification and various law offices throughout Australia need to be notified - - -
ACC. Well, I'm going to go on what- - -
HON. No, what is it that you're talking about there, so that , at least, then the OPP know what which Commonwealth Law it is that you say, this is inconsistent with.
ACC. Well, I've got the thing here-I could get my file out. It's clearly says, in the article, from the Commonwealth Government, that cannabis is erroneously classed as a narcotic.
Now I don't believe it's a narcotic. I mean people it a drug. I hate drugs, there's other drugs, I mean there's this amphetamine stuff and all that and gives people the impression, because you get the young Kids thinking, Oh, Marijuana doesn't really hurt you, they may get into hard stuff.
We've got to come to a point in our life where we're thinking of the future, we can't go on all the time- !0,000 people a year, in Victoria, are charged with Marijuana. that's ridiculous, 5.2 million Australians per year are in trouble. Now, all we need to do is sit back with a clear and open mind and think of the future. Think of what we're doing to our people.
What we're doing to the Children. are we talking rubbish, I mean -because I think, alcohol, We've got to change it. We can't say get rid of it, because alcohol keeps the economy going. With out alcohol, you wouldn't have nurses on the weekends, hospitals would be empty because alcohol keeps it going.
HON. Well, it's part o the economy, I'm not sure that many want to keep going, but we'll _ lets come back to how this case can run in this court please.
ACC. All right.
HON. So you want to call evidence that cannabis is not a narcotic?
ACC. That would be one of the points.
HON. How many-what I need to do, is get an estimate of how long this case might take?
ACC Well I think - - - -
HON. How many witnesses might be involved.
ACC. I think it would only take a day, might be in half day.
HON. How many witnesses would you propose to call, roughly
ACC Four.
HON. Four
ACC Are the Police coming or because- what happened , in the original one, all- the number of plants were wrong and they had three times of what it was, you know?
HON. I see. That's coming down to the content of the case, at the moment-if-let me go back a step. I'M -if you want to run the jurisdiction argument that the Act doesn't apply to Aboriginal people, That one issue.
ACC Right.
HON. If the issue is. whether you were charged with- whether you're not guilty of these charges, either because they've got their evidence wrong and you weren't cultivating or in possession of cannabis.
ACC. To many. I'm arguing over - - - - .
HON. Or if the argument - there were fewer plants its nowhere near what's called a commercial quantity, so- - -
ACC No I know that.
HON. --- its nowhere near that and that's why I say,
it would normally be in the Magistrates court.
ACC. Yes.
HON. I'm sure Mr Cordy would talk to you about whether the exact no. of the plants is what the issue is about that, as to whether the police have counted wrong no. of plants or something.
ACC. Its an honest mistake, he had three times as much as there was.
HON. Well---
ACC. He admitted in the latter, he tried to get it changed down.
HON. That part. I suspect, could be resolved, but we'll _ that would depend on what the prosecution witnesses have said and what parts you say got wrong, in adding up how many plants there were. But, in terms of the issues about theses Laws apply to you at all, that's not a- I'll hear what the prosecution has to say about has to say about this, but is seems to me, at first thinking about it, that's what we'd call a jurisdictional issue, a question of Law, and it would be decided by a judge, not a Jury.
ACC, Right
HON. Take a seat for a moment
ACC. Thanks very much.
HON. Mr. Cordy, as you've said, this matter was brought on to see what the ambit of the case was before to see how long the estimate needs to be and when it can conveniently be listed for trial., if it has to go a head. But in terms of what- first of all, do you have anything to say about whether this is a jurisdiction issue for a judge to decide - - -
OPP. Well - - -
HON, Before we get to the number of plants, the issue of whether the Act applies.
OPP. The prosecution position is that the act does apply.
HON. Does apply
OPP But, of course, that's something, clearly, the -Mr. McDonald's challenge, although, I note Your Honour's observations that really seem to be talking about content, rather than whether or not the Law applies, But - - -
HON. That's -I've said, I'm not deciding that today, that seemed to me, to be what Mr. McDonald's argument is about, about whether the Laws are right or wrong about prohibiting possession or cultivation of quantities of cannabis and that isn't consistent, as an issues of whether The Act applies to all to Aboriginal people, but to get this matter on- - -
OPP. None the less, if he wants to put that argument, well; I suppose, he's entitled to run the argument, Your Honour, and Honour was taking him to s.446 of the Crimes Act, I'm just having at that.
HON. I've had a look at that this morning, what this is Mr. McDonald, is Provision in the Crimes Act, for question of Law to be reserved for what we call a case statement to the Court of Appeal of the Supreme Court. However, it's easier said then done in some respects and sub-s.1 and indeed, the following sections, s.447, envisages that there's a trial run and a conviction and then a case stated on the question of Law for the Court of Appeal.
However, sup-s.2, envisages a point of Law arising beforer a Jury is empanelled. Now, that's as the Law stands at the moment. After 1 January of next year and we're of course, already in November 2009 and this case has been on the list all year and not reached, there's a new Criminal Procedure Act that I just haven't brought with me to check the transitional provisions of, I'm not sure whether Mr. Cordy can help me on that or not, as to whether this case, already being in the lost would be covered.
But, after 1 January , there can be what's called an interlocutory appeal to the Court of Appeal of the Supreme Court if a judge has a ruling, with which somebody- which one side or another wishes to challenge. it may be - what I'd need do is check whether that would apply, if this matter came on for trial early next year and a judge decided issue, before a jury was empanelled and whatever witnesses you want to call, in respect of it, it could be down - on the assumption that both sides agree, its a question of law to be decided before a jury is empanelled and then an interlocutory appeal taken if, indeed, you want to use this case as the vehicle to test this point in the Court of Appeal or whether, in fact, it mightn't ultimately be more easily resolved if you talk to Mr. Cordy about what the no. of plants, you say, was involved and whether---
ACC. Well, that will be easy, that will be self-explanatory, I was right, I'm not being rude against the police or nothing. But the point is , see, I've been promised these papers all the time with the jurisdiction question. Now, it must be written down somewhere, where you've got powers to make laws. As you know, we're a nation inside a nation.
HON. No, No, Mr. Mc Donald, that's you cant keep holding it up over that, because you've been told, several times, as far as the State of Victoria is concerned, the Act it enacts, it doesn't have to specify that it applies to Aboriginal people, because it applies to all people in the State.
ACC. Yes, but, see, the point is here, weave got Acts, in Australia, for Aboriginals only. Its no good telling me that Aboriginals are like everyone else, because they're not. They are independent nation and I am Chief Law Officer. Now, what happens here, I'd like to see Australia to become one. That's me whole aim. I've been talking so long to reconciliation, .I'm sick of black fellas, being black fellows. We're Australian, we're thinking of the future.
Now if we're thinking of the future, we've got to make it positive, so we're not - stupid laws, I'm not being rude, but they are. They're laws that are against the people's will. Five million, two hundred thousand people cannot be wrong.
Now, as say, I've been going for a long, but, I must be specific and if the DPP had have said what they done six months age or, what, well, last year sometime, where they would give me the documents to prove, without any doubt, that the Court had jurisdiction, it's not fair on me to say - - --
HON. There is no such documents. My understanding is, there is no such documents, Mr McDonald, The trial won't be held up waiting for a document that doesn't exist. That's my understanding , there will be no such document.
ACC. Okay. But, the point is there -mean, the Law-I mean, you can't say-I need- I'm saying, you're got no law, no power to make laws, no jurisdiction. Okay, we can't resolve this between me and the prosecutor, because I'm right. there's is no law. Okay, I'm not holding it over anyone, because I don't wasn't want to get- I just want to be specific, if we can change the law or the people, I've got a lot of people that are looking at me to what I'M doing on this matter.
I'm not going to broadcast it, because I don't want anyone getting up saying, I drive me Car, I break the window, you got no Laws. I am specifically talking about - - -
HON. Well, that's where your argument would lead, isn't it, if your were right, I'm Not deciding it today.
ACC No, good.
HON. And that's what I'M saying to you. It seems to me, your real argument is the content of the Law, not the Drugs, poisons and controlled Substances Act doesn't apply to Aboriginal people and then the very matters, you're saying you don't want to happen, would happen, if that was right.
ACC. Okay, but the thing is, I'm basing it on Aboriginal Law. Now, there's no law against Aboriginals driving a motor care or going fishing. it wasn't our costume, it wasn't our knowledge, but things come to fishing getting firewood or, you know, some thing that our Law covered.
See, our Law was very specific, we had a law, people don't realise, we had our law and, therefore, we had sovereignty , because without -society without law or sovereignty is irrelevant, it doesn't exist, we had our own Law. I mean -they're pretty- I mean, if you read the Bible, you've read the Aboriginal Law, That what it is. Do you know what I mean? That's in writing.
Now, the thing is, I'm left in a posting where I'm seeing all these people that don't want to near Alcohol, I mean, they prefer -they do prefer a smoke because it make them go to Sleep, makes them very placid, and I can't else, but think of their best interests and that's why I'm saying, you must be specific and the government could easily work this out.
HON. This court can't though. so , what I've got to come back to is what we do about a trial.
ACC. Right.
HON. I've only got this week and next week that I'm still sitting here but, of course , the County Court sits here most months of the year. You've been told me you want to call Four witnesses?
ACC, M'mmm
HON. For this argument? And you'll -then you want to put your arguments about why you say the Drugs, poisons and controlled substances Act 1981, doesn't apply to you?
ACC That's correct
HON The Prosecution will,. no doubt, want to argue why it does
ACC. Why it does.
HON. And it seems to me though that the whole argument will take more- probably no more than-it might take more then a day, in the end, but maybe not more then two days.
ACC. Well, that what I'd like-I'd like-I mean, I thought- I mean, I really respected the Courts, as you know, all the time, as I have done everything that is required, but it would be good, if you could just say to me, Mr. Weigel was going to - the others judge, I'm not sure what his name was, sorry for that, but - - -
HON. Well, you were last in front of Judge Chettle, I think
ACC. Okay, Judge Chettle said, Mr Weigel will write me, I rang him up and he's going to write back and sent the paper to me. I'm not here to embarrass anyone, I mean, the thing is, I've got to fight for the people, what we believe is right and it's only a weak loophole, but that the problem. I mean, I can't work for the people and work for the system as well, there's got to be a breakaway or something cleaned up and they've had plenty of time, 96 is what 13 years ago?
HON No, I think that's the -did you do anything more then write to the Scrutiny of Acts and Regulations Community?
ACC, Yes every year I write to the, Leader, the Premier, there's a stack of papers, I mean - - -
HON. All right. I'm Just looking to see, what - I think Judge said, Judge Duckett would hear it in January of this year and I'm Just looking to see , what it is, that you say Mr Weigel said he'd provider . I've got the transcript here of that. I can't see what it is that , I see - Mr Corby- just have a seat , Mr McDonald.
ACC. Thank you Your Honour
HON. Mr.Cordy, are you aware what it is that the OPP may have agreed to provide?
OPP No, I'm not aware of that, Your Honour, I know that Mr. McDonald has been writing to-over time, writing to a variety of people, requesting things.
HON. Yes
OPP. And the advice he received from the Department of Justice, back in August of 2008, Is really pertinent advice, Given that he's self-represented. The Matters that he's requested that the Victoria Government or the Attorney General advise on or has one, has the Victorian Parliament, proper legislated power to make laws for the Aboriginal race of Victoria, considering that the Victorian Constitution Act 1975 does not mention the Aboriginal race of Victoria and,
Two If the court's Jurisdiction is questioned in the Magistrates" court, should the matter then be transferred to the Supreme Court of Victoria to address the Jurisdiction issue, the reply is pretty straight forward. The matters to be raised are legal issues, neither the Attorney nor any public servant can provide you with legal advice about your matter, may I suggest you contact one of the following agencies to seek legal advice and assistance..
Now I can tell Your Honour that no material of the nature, sought by Mr. McDonald, is going to be provided to him and really, his recourse is to legal advice or run this argument on his own if he sees that is the appropriate way to go, but at the end of the day, He's not going to get the sort of advice that he wants and I think he encapsulated it when he said to Your Honour, he wants a piece of paper that says that the Laws of Victoria apply to Aboriginal people.
The position of the office of Public Prosecutions, is that the laws of Victoria apply to all people in Victoria, as your Honour has pointed out to him. That's the prima facie position and if he wants to challenge that, that's his right. But it would be better for him and, indeed, anyone else if he sought proper legal advice in relation to the matter, because if he's right, and he might be, I don't know, but if he's right, it's a matter that needs to litigated very carefully, rather than just doing it in an ad hoc fashion, Trying to restrict or focus a tribunal's attention on the deficiencies in the Drugs, Poisons and Controlled Substance Act.
HON. I'm Still not sure where we go from here, Mr. McDonald, what - - -
OPP. I don't mean to cut across Your Honour, but can I suggest this, the reality of the situation is that it's unlikely to be reached in the next sittings because, as I understand it, there are a number of matters that have priority and I've already discussed this with Mr. McDonald and indicated to him that the likelihood is if he wants to run this argument, it won't occur until next year, The next sittings of this court commences- the first 2010 sitting commences in mid-January, the 18th, I'm told and it would take place in the list with whatever other work is in the List. I've indicated that to him - - - .
HON. It would almost, inevitably, be matters with this priority by the end, in the sitting. I notice that, actually, it was Bendigo Police who were involved. I'm not quite sure- I've read the history of it, their Horsham and St Arnaud and all sorts---
ACC. I've been around---
HON. It seems to have been all around Western Victoria, this case, but I'm not really sure why it didn't start and finish at Bendigo, but we'll - I'm just---
Mr. Cordy. It sits in a geographical location, which is pretty close to the border.
ACC. It is on the border, yes.
OPP If I could put it that way, Bourke's place, near Marybourough.
ACC. Well, I'm- just near Marborough, but really just near St Arnaud.
HON. Could you just wait one moment, sorry. Yes, sorry, I was just having something looked up.
OPP. Yes, as I understand it, Your Honour, the alleged offences near Maryborough, which, geographically, is a bit to the west of a straight line between Ballarat and Bendigo and initially went to St Arnaud, ended up going to---
HON. It seemed to be the Inglewood Police involved and that seemed to me to ring bells about being closer to Bendigo, but I'm not geography expert either, as to how these matters move around Victoria.
HON. It's in the list here and there are judges sitting in the list, most months of the year, so it's likely to get on here as - either here or Melbourne, I mean, there's really the other - Bendigo, there wouldn't be as many sittings as Ballarat, I don't think.
OPP.I think there probably is, Your Honour, but I don't know that would ---
HON. That probably won't solve the issue of it getting on. All right, what I would like - I've tried, this morning, because, I had several - not just this one, but there are some other matters
I needed to talk to the coordinating judge, for this region, about and I wasn't able to get hold of him before coming into court, I'll keep trying during the day.
The option is, I simply leave it on the list or I have it on for a brief mention, again, before the end of next week, if I've managed to find out whether it can be slotted in to a particular timing, it would enable this issue to be run.
Mr McDonald, you say , you want to call witnesses, including ministers to get ministers to come to court to give evidence, it's certainly possible , but it usually takes some co-ordination and careful thought about whether they're really the people who you want to call or to give evidence and, again, Mr Cordy has raised what I raised with you earlier, the issue about getting legal representation. Because, if you want to run this as a test case, on whether the Parliament of Victoria has the jurisdictional power to legislate laws that cover Aboriginal people, I'd have thought it needs some careful planning by people experienced in the law. I'm not overlooking your experience- - - -
ACC. No, I just know it's simpler too.
HON. - - - in your community and of life, but the legal issues are very specific and would add what evidence may or may not be needed to substantiate them and to properly frame the arguments, you might like to - yet again, I'll indicate, you should consider if you want to run that argument, you should carefully consider getting legal advice.
ACC. Well, I probably will, but, Your Honour, I had a fall out with the legal profession many years ago, you know, I've lost a lot of - - -
HON. You might like to try them again. If it was many years ago, you might find there's a new- - -
ACC. Well, I hope so.
HON.- - - new people involved with a different approach.
ACC. Yeah, I'm not being rude, but, you know, little things that- I mean, I don't know- it was sort of- I realised that the legal profession make a view by about of- the law. When you've got a law where people build their income around it, it's very hard to change that law. You know, because there's losses and people have got- - -
HON. That's one side of it , but as I said to you, there are entitlements to apply for Legal Aid- - -
ACC. I think I- - -
HON. - - - and I've given you the information about that. If you want more information about Legal Aid, that's - - -
I very appreciate it, too.
HON. I know brochures are available downstairs. Those matters- finance, alone, shouldn't be what stops you getting legal representation. As I say, ultimately, it's your decision, but if you want to run an issue that deals with the jurisdiction of the Parliament of Victoria, it probably needs some experienced- - -
ACC. I think- - -
HON.- - - in the law to put the case- - -
ACC. I'll keep that in mind.
HON. All right- - -
ACC. But- - -
HON. What I- the options are, I don't think it can be run in this circuit, although, it's an interesting issue that I might've liked to hear, but I've got a lot of other cases still to get through this, we finish this circuit at the end of the week. It doesn't seem realistically that next month has a list with a number of priority matters. So, it will probably go over into next January sittings- - -
ACC. All right.
HON. - - - and you'll get notice of whether it's likely to b reached then, but what I will do is, talk to the judge- it's no longer Judge Chettle, it's now Judge Parsons, who co-ordinates this region and I'll talk to him about seeing if this can be given some specific dates, somewhere to see if those who might need to - - -
ACC. It would be appreciated.
HON. - - - involved in it's preparation can know, but I pre-warn you, from experience over many years, if you want to call people like Ministers of the Crown to give evidence, there needs to be a fair bit of notice and co-ordination with when this needs- - -
ACC. I'm trying to get them- - -
HON. To bring them to court- - -
ACC. I'm sorry I'm trying to get them to put it in writing. I mean, because it's no good putting all this burden out over all the people we've got going. If they don't know about the law properly, the ministers, I mean, well, I've done this honourable and given plenty of time. I'm not- not that I've just come up with this rave or this little bit of grass I got, the jurisdiction question, but you can see, I've tried to explain to my government then, I've not hidden it- hiding anything.
All they have to do was take the jurisdiction question into account, because all of the documents were forwarded to the ministers and all that and instead of putting the burden on the court, we've got the government saying, oh well, here we go, we've got something amiss here.
HON. Well, see, another aspect of the governance of Australia is that there's a, what they call, separation of powers between the- - -
ACC. Yes, the court, I know.
HON.- - - Parliamentary wing and the court system. So it's not for the ministers to say that this person shouldn't be prosecuted. They leave- they have to step out of whether it- the question of whether a particular person is prosecuted and leave that to the justice system, which includes, ultimately, the courts.
ACC. Yes.
HON. First of all, the independence of the Director of Public Prosecutions, and then the courts and you won't have ministers- I hope you won't have ministers stepping in and saying, Mr. McDonald shouldn't have been prosecuted.
ACC. I don't know if they'll do that, I just want to- to be accountable for the law. I mean, they're running this state and they know 10,000 people a year, I can't even imagine- oh it's gone down to 9,900 something last year, but I can't see why they've got this suppression of putting the burden on the people. If anyone ever died from cannabis, I wouldn't be here.
HON. I'm not going to enter into that argument with you, but it seems to me , your argument covers all people in Victoria, not just Aboriginal people.
ACC. Well, I'd like to think so, because- - -
HON. That's another thing to think about, as to whether this issue, you want to run, is what your real issue is or whether your real issue is, you don't think the use of cannabis should be illegal.
ACC. I'd like to think- I've spent, as I say, over 36 years and I didn't smoke in the early days, I had to run a nightclub in Melbourne and all that.
HON. Well- - -
ACC. So, it's a battle. I'm getting too old now, I'll probably be dead before this case comes up.
HON. You never know, it might be time for me to come back to Ballarat before this case gets on, but I'm not in Ballarat early next year, so whichever judge is sitting, we'll hear the case, unless it gets transferred elsewhere. I will leave the case in the list.
ACC. Right, thank you.
HON. I will see if I can bring it to the attention of the listing judge, so that it may get reached, sooner rather than later, but I strongly advise you to consider, if you want to run that argument, getting legal advice, and if you decide it's not the right test case to run that argument on, get in touch with the prosecution and see if there can't be some middle ground reached about it, because- - -
ACC. Well, thanks, I just- - -
HON. - - - I stress again, it's not the quantity that was involved, but whether it was that amount or some lesser amount, as you might argue- - -
ACC. Yes.
HON. - - - wouldn't normally come to the County Court.
ACC. Right. I'd like to thank you very much for listening to me, it's a nice pleasure.
HON. All right, it's been interesting, Mr McDonald.
ACC. Thank you.
HON. Thank you, you can leave the court now.
OPP. I wonder if your honour would, perhaps, stand down for a few minutes, so I can have a quick word with- - -
HON. Yes, I'll leave the Bench and stand the court down for a few minutes
And ENDS here
The following is a copy of the letter to the Court that her Honour read. dated
Registrar’s OfficerBallarat
County Court Re:- Case Number X00340105100
Grenville St Ballarat 3350 27th October 2008
Dear Sir/MadamI have your letter of the 20 October 2008, which raised the issue that your records disclosed that I am have no legal representation, by way of respect and courtesy to the Court, I offer in concise form the following explanation.
December 1979 I attended my solicitors office, present were a well known land developer, and the person that recommended the legal firm to me, Shortly after my solicitor informed me that he will take every thing that I had, and their was nothing I could do about it, Nothing he shouted nothing you can do will stop us.Arrogantly claiming that the (mick) Judges were stupid.
They three would break into a foreign language, then claiming that "We run this country not the Government" .."wait till the year after 2000 you will see how good we are" after about twenty minutes of this abuse, I shook hands, and said to them well go for it then.It is still unclear to myself as to what party was meant by "We run this country not the Government" was it referring the Legal Profession, or foreign organisation, whose main aim may not necessary rest in the best interest of the Australian people.
As I was deeply concerned about these threats made, by way of precaution by September 1980, I had raised my concerns with the appropriate authorities, including the Law Institute and Corporate Affairs, as my family companies Brogil Enterprises Pty. Ltd and Kamball Enterprises Pty Ltd had asset's, real estate of substantial value.
As a conspiracy to fraud began to appear implicating my solicitor and my business consultant I found need to engage another firm of solicitors, after a short time it was obvious that this solicitors had joined the others in the conspiracy, as yet another property had been removed for from my estate. Once again I engaged a new law firm to take action and act on my behalf.
I need not express my disappointment in his conduct , as yet another property Parma House Hepburn Springs was removed from my dwindling estate. Endeavouring to clarify things, I attended the office of the former Attorney-General Jim Kennan, he informed me he was aware of the situation, but the Government had little control over the matter at present and was trying to rectify the cause of the problem.
I also raised my concerns with Liberal Attorney-General, Jan Wade, Later the Lay Observer Jan King. During 1993 was the last time that I engaged a member of the Victoria Legal profession, subsequently his performance confirmed the legal vendetta against myself continued.
I realised that there are many Legal firms in Victoria that act in their clients best interest in an open and honest way, I humbly apologise to any Legal firm or members of the Judicial system of Victorian that I may have offended over the last twenty years or so.
I trust the above will satisfy Court as to show cause and reason why I have no Legal representation in the current matter before the Courts.
Yours sincerely, Les McDonald
Honourable Judge Cohen
Office of Public Prosecution Mr. Cordy.
OPP. Your Honour, Mr McDonald appears in person
HON. Yes, He can come forward to the Bar table, Mr McDonald
ACC. Thank you
HON. Just over here.
OPP. Your Honour will recall that I asked for this matter to be mentioned, as to ascertain what Mr. McDonald intentions were- - -
HON. Yes
OPP. In relation to pursuing this matter or to determine whether in some way , the matter could be resolved . Now I've had the opportunity to have a short conversation with Mr McDonald and tell him the Crown's position is, in relation to the matter.
HON. Yes,
OPP. He's been thinking about that. I don't know what he wants to do although I suspect that he wants to continue with this constitutional argument and it may be that- well, if that's the case, clearly, the matter won't be held this year. But, in any event, perhaps Your Honour could fire at Mr. Mc Donald what he wants to do. He understands what I've been saying.
HON. Yes, Mr McDonald your case is in the list of trials for this circuit and that's why I've call it on for mention to see what is happening with it. I've read what's on the file, including the transcript of what occurred with Judge Chettle at a directions hearing-case conference, I think is was in October last year. ...First of all, I've read your letter setting out why you haven't got legal representation. That of course, is your choice, but I'm obligated to tell you that if the question of costs of legal representation is part of the issue for you, you are entitled to apply for legal aid and you will do that through Victorian Legal Aid.
If Victoria Legal Aid were to turn you down for funding, in relation to legal representation for this trial, you are entitled to apply to this court, under 360A of the and my Associate has a copy of that to give you.. I'm giving that to you, because you're not represented at this stage- - -
ACC. Yes, Your Honour.
HON. - - - and I'm obligated to tell you about these rights. They're decisions for you to make- - -
ACC. Okay.
HON. - - - but obviously, and I think you have been told this before, including by Judge Chettle, having representation can be very useful in a case in this court, but it's ultimately a decision for you and you've got the right , as I say, to apply to Legal Aid or if they refuse you, to apply to the court to - that application would be to direct Legal Aid to give funding if the court sees fit having heard all the circumstances.
ACC. Thanks very much, very good.
HON. Now about the issues, I've read that you say you want to run the argument that the laws of the state of Victoria don't apply to you as an Aboriginal person?
ACC. That's correct
HON. And in particular, the Drugs, Poisons and Controlled Substances Act doesn't apply to you.
ACC. That's correct
HON. I'm not deciding that issue today of course.
ACC. All right
HON. But I've read the materials and it seems to me that you've embraced and used the Laws of the State of Victoria at times, in several ways and. indeed, if seemed to me, from the record of interview with police, that your real argument is, you challenge the content of those laws. You don't think they should be what they are.
ACC. I don't think they're -I think- basically. I've been fighting these - marijuana laws since 1975, I've come a long way, I've been battered through it all. Now my policy- the Aboriginal side, we have to have an alternative to alcohol, it's killing our people and because the marijuana is nature's own it grows in the ground and it's our law, if it's grown on the earth, comes from our country, it is yours.
Now considering no one has ever died from it- You see I'm in a position where I'm looking after thousands of people, I'm trying to- well get them away from alcohol. We've got to find them an alternative, because our race can't hold it, they just -a bit different, maybe in the next two generations, they'll adjust to alcohol. but my main concern is, protect them- the future of the children and the future well being of the people.
I mean, alcohol -I mean, I don't - it's a killer, it's deadly- it's much more harmful then marijuana, because we can't understand why- in South Australia and the Capital Territory and Canberra, you can use it. I can't see why we can't adjust, we've had a long time to think about it, 25 years, why Victoria is placed under restrict rules. Different if someone died from it. No one has ever died..
HON. Well, I'm not going to enter into an argument that - - -
ACC. No, I'm sorry, you're right.
HON. - - - part with you., Mr. McDonald, but it seems to me, your argument is the content of the law, rather than whether it applies to you at all or not and cannabis is an introduced species into Australia, isn't it?
ACC. No, no, up in Cape York, on the Peninsula of Cape York. You'll see it in the Joseph Banks, its a cousin to - - - -
HON. It's a cousin to it, it might - but not the actual Cannabis L plant that's forbidden under the Drugs, Poisons and Controlled Substances Act.
ACC. Well, the Cannabis L plant, I mean, it's probably, I don't know, I'm not really technical, I'm a D.O. on all that, but as a cannabis ( indistinct) boy- it was used by special people, magical men, you call them what you like, spiritual people, all night, they used to go around and they- when they had people like that, they'd have a smoke and they'd dropping the plants on it.
You can -1916, they had them on the New Zealand, no- the Swiss people, just bought some bones back and they had film of it in 1916, smoking out of a biig long thing, because, I mean, its a peaceful drug, I mean that's the point.
HON. This court can't determine that.
ACC. Right
HON. What-all this court can do is decide whether, on the -well you want to challenge this law actually applies to you or not?
ACC, Yes, but that's - - -
HON. But that's not what you're really arguing, you're really arguing you want the laws of Victoria changed.
ACC. Well that's part of it, because I'M looking at the white part, as well as the black.
HON. All right. The question for today is how we're going to proceed with this trial.
ACC. Okay.
HON. Just take - it's your intention is it, to plead not guilty to the charges? See, these charges, normally- I know you've been told by Judge Chettle to, for the relatively small amount involved, this would be normally be heard in the Magistrates' Court.
ACC, Yes
HON. If it's heard in this court and you were- in the magistrates Court, you can plead not guilty.
ACC. Right.
HON But the matter is heard and decided by the Magistrate.
ACC. Yes.
HON. And then there are various rights of appeal, either rehearing to this court or if there's a point of Law involved, an application to the Supreme Court, but it's now in the County Court.
ACC. Right.
HON. If you plead not guilty, there has to be a trial with a jury.
ACC. Right, that's - - -
HON. But question of Law get decided by the Judge
ACC. Right.
HON. And it seems to me that, on any reading, if you want to run argument, that the law doesn't apply to you at all, that would be a point of Law.
ACC. Right.
HON. A Jurisdictional issue for the Judge to decide. As the law presently stands and I don't know if you've had a chance to look at s.446 and following of the Crimes Act? No? Have you taken-I'm not trying to ask about the content of it and I've why you don't want to get lawyers involved, but have you received any legal advice about this point you want to run.
ACC. Well , I have made the point to the department of Public Prosecutions, by Raelene Maxwell.
HON. Yes
ACC. Now, Raelene told me, many-well, last year sometime, the beginning of last year.
HON. This is someone in the Office of Public Prosecution?
ACC. DPP
HON. Yes.
ACC. Okay, Raelene Maxwell. she said to me, if I get an adjournment on the first day, she would get the Act, you know, the paper where it gives them the power and from then on, I've asked her three times and the last time I said all I need is the one piece of paper, which gives the Victorian Government the power to make laws for the Aboriginal race.
Now I have kept this quite, it goes back 1996, no I didn't want people to run around saying, OK, you've no law and I can smash your house up, I can rob you. That is not the point. the point of our law is, you come back to our law-if the thing grew from the earth, it was ours. it was legal to take it. the point is that's the point I'm looking at, because our law said it all right, our Law said, if you're not hurting no one, it's got- I don't know if you know Aboriginal law but is pretty - - -
HON . Very little of it, unfortunately
ACC. It's very strong and very real, though they say it's barbaric, It's not really. if you read our law - - -
HON. That's not what I'm here to argue about or-and I can do nothing about what others say Mr. McDonald.
ACC. Right.
HON. What I am trying to do is work out how this case can proceed through the legal system that is enforced in this state. My duty is to conduct the trials that come before me or-------
ACC. Yes.
HON. ----- deal with them according to the laws created by Parliament.
ACC. Right
HON. Now, if you want to run this argument, how many witnesses do you intend to call?
ACC. I was going to call some Ministers from Melbourne, I - Minister Halpin, all that, so I may as well go all the way with it, but the only- the law I've got is, I'm relying on the DPP to prove to me that they have jurisdiction, that is one of the arguments on it.
HON. Well that's-it's - he Drugs, Poisons and Controlled Substance Act 1981 is the Act which you have been charged and that applies to all person in Victoria.
ACC. Yes, but what happens here, see, I've charged under the Drugs, poisons- It's a narcotic Act on the thing, Now, if you look at- the Australian Government says. cannabis is not a narcotic, it's been erroneously placed as a narcotic. so we're getting this Commonwealth Law- - -
HON. Which Commonwealth Law is that?
ACC .Well, it's the thing I've got-I can show you, I've got a copy - - -
HON. If there's an inconsistency between Commonwealth Law and State Law, then it's a matter that has some constitution ramification and various law offices throughout Australia need to be notified - - -
ACC. Well, I'm going to go on what- - -
HON. No, what is it that you're talking about there, so that , at least, then the OPP know what which Commonwealth Law it is that you say, this is inconsistent with.
ACC. Well, I've got the thing here-I could get my file out. It's clearly says, in the article, from the Commonwealth Government, that cannabis is erroneously classed as a narcotic.
Now I don't believe it's a narcotic. I mean people it a drug. I hate drugs, there's other drugs, I mean there's this amphetamine stuff and all that and gives people the impression, because you get the young Kids thinking, Oh, Marijuana doesn't really hurt you, they may get into hard stuff.
We've got to come to a point in our life where we're thinking of the future, we can't go on all the time- !0,000 people a year, in Victoria, are charged with Marijuana. that's ridiculous, 5.2 million Australians per year are in trouble. Now, all we need to do is sit back with a clear and open mind and think of the future. Think of what we're doing to our people.
What we're doing to the Children. are we talking rubbish, I mean -because I think, alcohol, We've got to change it. We can't say get rid of it, because alcohol keeps the economy going. With out alcohol, you wouldn't have nurses on the weekends, hospitals would be empty because alcohol keeps it going.
HON. Well, it's part o the economy, I'm not sure that many want to keep going, but we'll _ lets come back to how this case can run in this court please.
ACC. All right.
HON. So you want to call evidence that cannabis is not a narcotic?
ACC. That would be one of the points.
HON. How many-what I need to do, is get an estimate of how long this case might take?
ACC Well I think - - - -
HON. How many witnesses might be involved.
ACC. I think it would only take a day, might be in half day.
HON. How many witnesses would you propose to call, roughly
ACC Four.
HON. Four
ACC Are the Police coming or because- what happened , in the original one, all- the number of plants were wrong and they had three times of what it was, you know?
HON. I see. That's coming down to the content of the case, at the moment-if-let me go back a step. I'M -if you want to run the jurisdiction argument that the Act doesn't apply to Aboriginal people, That one issue.
ACC Right.
HON. If the issue is. whether you were charged with- whether you're not guilty of these charges, either because they've got their evidence wrong and you weren't cultivating or in possession of cannabis.
ACC. To many. I'm arguing over - - - - .
HON. Or if the argument - there were fewer plants its nowhere near what's called a commercial quantity, so- - -
ACC No I know that.
HON. --- its nowhere near that and that's why I say,
it would normally be in the Magistrates court.
ACC. Yes.
HON. I'm sure Mr Cordy would talk to you about whether the exact no. of the plants is what the issue is about that, as to whether the police have counted wrong no. of plants or something.
ACC. Its an honest mistake, he had three times as much as there was.
HON. Well---
ACC. He admitted in the latter, he tried to get it changed down.
HON. That part. I suspect, could be resolved, but we'll _ that would depend on what the prosecution witnesses have said and what parts you say got wrong, in adding up how many plants there were. But, in terms of the issues about theses Laws apply to you at all, that's not a- I'll hear what the prosecution has to say about has to say about this, but is seems to me, at first thinking about it, that's what we'd call a jurisdictional issue, a question of Law, and it would be decided by a judge, not a Jury.
ACC, Right
HON. Take a seat for a moment
ACC. Thanks very much.
HON. Mr. Cordy, as you've said, this matter was brought on to see what the ambit of the case was before to see how long the estimate needs to be and when it can conveniently be listed for trial., if it has to go a head. But in terms of what- first of all, do you have anything to say about whether this is a jurisdiction issue for a judge to decide - - -
OPP. Well - - -
HON, Before we get to the number of plants, the issue of whether the Act applies.
OPP. The prosecution position is that the act does apply.
HON. Does apply
OPP But, of course, that's something, clearly, the -Mr. McDonald's challenge, although, I note Your Honour's observations that really seem to be talking about content, rather than whether or not the Law applies, But - - -
HON. That's -I've said, I'm not deciding that today, that seemed to me, to be what Mr. McDonald's argument is about, about whether the Laws are right or wrong about prohibiting possession or cultivation of quantities of cannabis and that isn't consistent, as an issues of whether The Act applies to all to Aboriginal people, but to get this matter on- - -
OPP. None the less, if he wants to put that argument, well; I suppose, he's entitled to run the argument, Your Honour, and Honour was taking him to s.446 of the Crimes Act, I'm just having at that.
HON. I've had a look at that this morning, what this is Mr. McDonald, is Provision in the Crimes Act, for question of Law to be reserved for what we call a case statement to the Court of Appeal of the Supreme Court. However, it's easier said then done in some respects and sub-s.1 and indeed, the following sections, s.447, envisages that there's a trial run and a conviction and then a case stated on the question of Law for the Court of Appeal.
However, sup-s.2, envisages a point of Law arising beforer a Jury is empanelled. Now, that's as the Law stands at the moment. After 1 January of next year and we're of course, already in November 2009 and this case has been on the list all year and not reached, there's a new Criminal Procedure Act that I just haven't brought with me to check the transitional provisions of, I'm not sure whether Mr. Cordy can help me on that or not, as to whether this case, already being in the lost would be covered.
But, after 1 January , there can be what's called an interlocutory appeal to the Court of Appeal of the Supreme Court if a judge has a ruling, with which somebody- which one side or another wishes to challenge. it may be - what I'd need do is check whether that would apply, if this matter came on for trial early next year and a judge decided issue, before a jury was empanelled and whatever witnesses you want to call, in respect of it, it could be down - on the assumption that both sides agree, its a question of law to be decided before a jury is empanelled and then an interlocutory appeal taken if, indeed, you want to use this case as the vehicle to test this point in the Court of Appeal or whether, in fact, it mightn't ultimately be more easily resolved if you talk to Mr. Cordy about what the no. of plants, you say, was involved and whether---
ACC. Well, that will be easy, that will be self-explanatory, I was right, I'm not being rude against the police or nothing. But the point is , see, I've been promised these papers all the time with the jurisdiction question. Now, it must be written down somewhere, where you've got powers to make laws. As you know, we're a nation inside a nation.
HON. No, No, Mr. Mc Donald, that's you cant keep holding it up over that, because you've been told, several times, as far as the State of Victoria is concerned, the Act it enacts, it doesn't have to specify that it applies to Aboriginal people, because it applies to all people in the State.
ACC. Yes, but, see, the point is here, weave got Acts, in Australia, for Aboriginals only. Its no good telling me that Aboriginals are like everyone else, because they're not. They are independent nation and I am Chief Law Officer. Now, what happens here, I'd like to see Australia to become one. That's me whole aim. I've been talking so long to reconciliation, .I'm sick of black fellas, being black fellows. We're Australian, we're thinking of the future.
Now if we're thinking of the future, we've got to make it positive, so we're not - stupid laws, I'm not being rude, but they are. They're laws that are against the people's will. Five million, two hundred thousand people cannot be wrong.
Now, as say, I've been going for a long, but, I must be specific and if the DPP had have said what they done six months age or, what, well, last year sometime, where they would give me the documents to prove, without any doubt, that the Court had jurisdiction, it's not fair on me to say - - --
HON. There is no such documents. My understanding is, there is no such documents, Mr McDonald, The trial won't be held up waiting for a document that doesn't exist. That's my understanding , there will be no such document.
ACC. Okay. But, the point is there -mean, the Law-I mean, you can't say-I need- I'm saying, you're got no law, no power to make laws, no jurisdiction. Okay, we can't resolve this between me and the prosecutor, because I'm right. there's is no law. Okay, I'm not holding it over anyone, because I don't wasn't want to get- I just want to be specific, if we can change the law or the people, I've got a lot of people that are looking at me to what I'M doing on this matter.
I'm not going to broadcast it, because I don't want anyone getting up saying, I drive me Car, I break the window, you got no Laws. I am specifically talking about - - -
HON. Well, that's where your argument would lead, isn't it, if your were right, I'm Not deciding it today.
ACC No, good.
HON. And that's what I'M saying to you. It seems to me, your real argument is the content of the Law, not the Drugs, poisons and controlled Substances Act doesn't apply to Aboriginal people and then the very matters, you're saying you don't want to happen, would happen, if that was right.
ACC. Okay, but the thing is, I'm basing it on Aboriginal Law. Now, there's no law against Aboriginals driving a motor care or going fishing. it wasn't our costume, it wasn't our knowledge, but things come to fishing getting firewood or, you know, some thing that our Law covered.
See, our Law was very specific, we had a law, people don't realise, we had our law and, therefore, we had sovereignty , because without -society without law or sovereignty is irrelevant, it doesn't exist, we had our own Law. I mean -they're pretty- I mean, if you read the Bible, you've read the Aboriginal Law, That what it is. Do you know what I mean? That's in writing.
Now, the thing is, I'm left in a posting where I'm seeing all these people that don't want to near Alcohol, I mean, they prefer -they do prefer a smoke because it make them go to Sleep, makes them very placid, and I can't else, but think of their best interests and that's why I'm saying, you must be specific and the government could easily work this out.
HON. This court can't though. so , what I've got to come back to is what we do about a trial.
ACC. Right.
HON. I've only got this week and next week that I'm still sitting here but, of course , the County Court sits here most months of the year. You've been told me you want to call Four witnesses?
ACC, M'mmm
HON. For this argument? And you'll -then you want to put your arguments about why you say the Drugs, poisons and controlled substances Act 1981, doesn't apply to you?
ACC That's correct
HON The Prosecution will,. no doubt, want to argue why it does
ACC. Why it does.
HON. And it seems to me though that the whole argument will take more- probably no more than-it might take more then a day, in the end, but maybe not more then two days.
ACC. Well, that what I'd like-I'd like-I mean, I thought- I mean, I really respected the Courts, as you know, all the time, as I have done everything that is required, but it would be good, if you could just say to me, Mr. Weigel was going to - the others judge, I'm not sure what his name was, sorry for that, but - - -
HON. Well, you were last in front of Judge Chettle, I think
ACC. Okay, Judge Chettle said, Mr Weigel will write me, I rang him up and he's going to write back and sent the paper to me. I'm not here to embarrass anyone, I mean, the thing is, I've got to fight for the people, what we believe is right and it's only a weak loophole, but that the problem. I mean, I can't work for the people and work for the system as well, there's got to be a breakaway or something cleaned up and they've had plenty of time, 96 is what 13 years ago?
HON No, I think that's the -did you do anything more then write to the Scrutiny of Acts and Regulations Community?
ACC, Yes every year I write to the, Leader, the Premier, there's a stack of papers, I mean - - -
HON. All right. I'm Just looking to see, what - I think Judge said, Judge Duckett would hear it in January of this year and I'm Just looking to see , what it is, that you say Mr Weigel said he'd provider . I've got the transcript here of that. I can't see what it is that , I see - Mr Corby- just have a seat , Mr McDonald.
ACC. Thank you Your Honour
HON. Mr.Cordy, are you aware what it is that the OPP may have agreed to provide?
OPP No, I'm not aware of that, Your Honour, I know that Mr. McDonald has been writing to-over time, writing to a variety of people, requesting things.
HON. Yes
OPP. And the advice he received from the Department of Justice, back in August of 2008, Is really pertinent advice, Given that he's self-represented. The Matters that he's requested that the Victoria Government or the Attorney General advise on or has one, has the Victorian Parliament, proper legislated power to make laws for the Aboriginal race of Victoria, considering that the Victorian Constitution Act 1975 does not mention the Aboriginal race of Victoria and,
Two If the court's Jurisdiction is questioned in the Magistrates" court, should the matter then be transferred to the Supreme Court of Victoria to address the Jurisdiction issue, the reply is pretty straight forward. The matters to be raised are legal issues, neither the Attorney nor any public servant can provide you with legal advice about your matter, may I suggest you contact one of the following agencies to seek legal advice and assistance..
Now I can tell Your Honour that no material of the nature, sought by Mr. McDonald, is going to be provided to him and really, his recourse is to legal advice or run this argument on his own if he sees that is the appropriate way to go, but at the end of the day, He's not going to get the sort of advice that he wants and I think he encapsulated it when he said to Your Honour, he wants a piece of paper that says that the Laws of Victoria apply to Aboriginal people.
The position of the office of Public Prosecutions, is that the laws of Victoria apply to all people in Victoria, as your Honour has pointed out to him. That's the prima facie position and if he wants to challenge that, that's his right. But it would be better for him and, indeed, anyone else if he sought proper legal advice in relation to the matter, because if he's right, and he might be, I don't know, but if he's right, it's a matter that needs to litigated very carefully, rather than just doing it in an ad hoc fashion, Trying to restrict or focus a tribunal's attention on the deficiencies in the Drugs, Poisons and Controlled Substance Act.
HON. I'm Still not sure where we go from here, Mr. McDonald, what - - -
OPP. I don't mean to cut across Your Honour, but can I suggest this, the reality of the situation is that it's unlikely to be reached in the next sittings because, as I understand it, there are a number of matters that have priority and I've already discussed this with Mr. McDonald and indicated to him that the likelihood is if he wants to run this argument, it won't occur until next year, The next sittings of this court commences- the first 2010 sitting commences in mid-January, the 18th, I'm told and it would take place in the list with whatever other work is in the List. I've indicated that to him - - - .
HON. It would almost, inevitably, be matters with this priority by the end, in the sitting. I notice that, actually, it was Bendigo Police who were involved. I'm not quite sure- I've read the history of it, their Horsham and St Arnaud and all sorts---
ACC. I've been around---
HON. It seems to have been all around Western Victoria, this case, but I'm not really sure why it didn't start and finish at Bendigo, but we'll - I'm just---
Mr. Cordy. It sits in a geographical location, which is pretty close to the border.
ACC. It is on the border, yes.
OPP If I could put it that way, Bourke's place, near Marybourough.
ACC. Well, I'm- just near Marborough, but really just near St Arnaud.
HON. Could you just wait one moment, sorry. Yes, sorry, I was just having something looked up.
OPP. Yes, as I understand it, Your Honour, the alleged offences near Maryborough, which, geographically, is a bit to the west of a straight line between Ballarat and Bendigo and initially went to St Arnaud, ended up going to---
HON. It seemed to be the Inglewood Police involved and that seemed to me to ring bells about being closer to Bendigo, but I'm not geography expert either, as to how these matters move around Victoria.
HON. It's in the list here and there are judges sitting in the list, most months of the year, so it's likely to get on here as - either here or Melbourne, I mean, there's really the other - Bendigo, there wouldn't be as many sittings as Ballarat, I don't think.
OPP.I think there probably is, Your Honour, but I don't know that would ---
HON. That probably won't solve the issue of it getting on. All right, what I would like - I've tried, this morning, because, I had several - not just this one, but there are some other matters
I needed to talk to the coordinating judge, for this region, about and I wasn't able to get hold of him before coming into court, I'll keep trying during the day.
The option is, I simply leave it on the list or I have it on for a brief mention, again, before the end of next week, if I've managed to find out whether it can be slotted in to a particular timing, it would enable this issue to be run.
Mr McDonald, you say , you want to call witnesses, including ministers to get ministers to come to court to give evidence, it's certainly possible , but it usually takes some co-ordination and careful thought about whether they're really the people who you want to call or to give evidence and, again, Mr Cordy has raised what I raised with you earlier, the issue about getting legal representation. Because, if you want to run this as a test case, on whether the Parliament of Victoria has the jurisdictional power to legislate laws that cover Aboriginal people, I'd have thought it needs some careful planning by people experienced in the law. I'm not overlooking your experience- - - -
ACC. No, I just know it's simpler too.
HON. - - - in your community and of life, but the legal issues are very specific and would add what evidence may or may not be needed to substantiate them and to properly frame the arguments, you might like to - yet again, I'll indicate, you should consider if you want to run that argument, you should carefully consider getting legal advice.
ACC. Well, I probably will, but, Your Honour, I had a fall out with the legal profession many years ago, you know, I've lost a lot of - - -
HON. You might like to try them again. If it was many years ago, you might find there's a new- - -
ACC. Well, I hope so.
HON.- - - new people involved with a different approach.
ACC. Yeah, I'm not being rude, but, you know, little things that- I mean, I don't know- it was sort of- I realised that the legal profession make a view by about of- the law. When you've got a law where people build their income around it, it's very hard to change that law. You know, because there's losses and people have got- - -
HON. That's one side of it , but as I said to you, there are entitlements to apply for Legal Aid- - -
ACC. I think I- - -
HON. - - - and I've given you the information about that. If you want more information about Legal Aid, that's - - -
I very appreciate it, too.
HON. I know brochures are available downstairs. Those matters- finance, alone, shouldn't be what stops you getting legal representation. As I say, ultimately, it's your decision, but if you want to run an issue that deals with the jurisdiction of the Parliament of Victoria, it probably needs some experienced- - -
ACC. I think- - -
HON.- - - in the law to put the case- - -
ACC. I'll keep that in mind.
HON. All right- - -
ACC. But- - -
HON. What I- the options are, I don't think it can be run in this circuit, although, it's an interesting issue that I might've liked to hear, but I've got a lot of other cases still to get through this, we finish this circuit at the end of the week. It doesn't seem realistically that next month has a list with a number of priority matters. So, it will probably go over into next January sittings- - -
ACC. All right.
HON. - - - and you'll get notice of whether it's likely to b reached then, but what I will do is, talk to the judge- it's no longer Judge Chettle, it's now Judge Parsons, who co-ordinates this region and I'll talk to him about seeing if this can be given some specific dates, somewhere to see if those who might need to - - -
ACC. It would be appreciated.
HON. - - - involved in it's preparation can know, but I pre-warn you, from experience over many years, if you want to call people like Ministers of the Crown to give evidence, there needs to be a fair bit of notice and co-ordination with when this needs- - -
ACC. I'm trying to get them- - -
HON. To bring them to court- - -
ACC. I'm sorry I'm trying to get them to put it in writing. I mean, because it's no good putting all this burden out over all the people we've got going. If they don't know about the law properly, the ministers, I mean, well, I've done this honourable and given plenty of time. I'm not- not that I've just come up with this rave or this little bit of grass I got, the jurisdiction question, but you can see, I've tried to explain to my government then, I've not hidden it- hiding anything.
All they have to do was take the jurisdiction question into account, because all of the documents were forwarded to the ministers and all that and instead of putting the burden on the court, we've got the government saying, oh well, here we go, we've got something amiss here.
HON. Well, see, another aspect of the governance of Australia is that there's a, what they call, separation of powers between the- - -
ACC. Yes, the court, I know.
HON.- - - Parliamentary wing and the court system. So it's not for the ministers to say that this person shouldn't be prosecuted. They leave- they have to step out of whether it- the question of whether a particular person is prosecuted and leave that to the justice system, which includes, ultimately, the courts.
ACC. Yes.
HON. First of all, the independence of the Director of Public Prosecutions, and then the courts and you won't have ministers- I hope you won't have ministers stepping in and saying, Mr. McDonald shouldn't have been prosecuted.
ACC. I don't know if they'll do that, I just want to- to be accountable for the law. I mean, they're running this state and they know 10,000 people a year, I can't even imagine- oh it's gone down to 9,900 something last year, but I can't see why they've got this suppression of putting the burden on the people. If anyone ever died from cannabis, I wouldn't be here.
HON. I'm not going to enter into that argument with you, but it seems to me , your argument covers all people in Victoria, not just Aboriginal people.
ACC. Well, I'd like to think so, because- - -
HON. That's another thing to think about, as to whether this issue, you want to run, is what your real issue is or whether your real issue is, you don't think the use of cannabis should be illegal.
ACC. I'd like to think- I've spent, as I say, over 36 years and I didn't smoke in the early days, I had to run a nightclub in Melbourne and all that.
HON. Well- - -
ACC. So, it's a battle. I'm getting too old now, I'll probably be dead before this case comes up.
HON. You never know, it might be time for me to come back to Ballarat before this case gets on, but I'm not in Ballarat early next year, so whichever judge is sitting, we'll hear the case, unless it gets transferred elsewhere. I will leave the case in the list.
ACC. Right, thank you.
HON. I will see if I can bring it to the attention of the listing judge, so that it may get reached, sooner rather than later, but I strongly advise you to consider, if you want to run that argument, getting legal advice, and if you decide it's not the right test case to run that argument on, get in touch with the prosecution and see if there can't be some middle ground reached about it, because- - -
ACC. Well, thanks, I just- - -
HON. - - - I stress again, it's not the quantity that was involved, but whether it was that amount or some lesser amount, as you might argue- - -
ACC. Yes.
HON. - - - wouldn't normally come to the County Court.
ACC. Right. I'd like to thank you very much for listening to me, it's a nice pleasure.
HON. All right, it's been interesting, Mr McDonald.
ACC. Thank you.
HON. Thank you, you can leave the court now.
OPP. I wonder if your honour would, perhaps, stand down for a few minutes, so I can have a quick word with- - -
HON. Yes, I'll leave the Bench and stand the court down for a few minutes
And ENDS here
The following is a copy of the letter to the Court that her Honour read. dated
Registrar’s OfficerBallarat
County Court Re:- Case Number X00340105100
Grenville St Ballarat 3350 27th October 2008
Dear Sir/MadamI have your letter of the 20 October 2008, which raised the issue that your records disclosed that I am have no legal representation, by way of respect and courtesy to the Court, I offer in concise form the following explanation.
December 1979 I attended my solicitors office, present were a well known land developer, and the person that recommended the legal firm to me, Shortly after my solicitor informed me that he will take every thing that I had, and their was nothing I could do about it, Nothing he shouted nothing you can do will stop us.Arrogantly claiming that the (mick) Judges were stupid.
They three would break into a foreign language, then claiming that "We run this country not the Government" .."wait till the year after 2000 you will see how good we are" after about twenty minutes of this abuse, I shook hands, and said to them well go for it then.It is still unclear to myself as to what party was meant by "We run this country not the Government" was it referring the Legal Profession, or foreign organisation, whose main aim may not necessary rest in the best interest of the Australian people.
As I was deeply concerned about these threats made, by way of precaution by September 1980, I had raised my concerns with the appropriate authorities, including the Law Institute and Corporate Affairs, as my family companies Brogil Enterprises Pty. Ltd and Kamball Enterprises Pty Ltd had asset's, real estate of substantial value.
As a conspiracy to fraud began to appear implicating my solicitor and my business consultant I found need to engage another firm of solicitors, after a short time it was obvious that this solicitors had joined the others in the conspiracy, as yet another property had been removed for from my estate. Once again I engaged a new law firm to take action and act on my behalf.
I need not express my disappointment in his conduct , as yet another property Parma House Hepburn Springs was removed from my dwindling estate. Endeavouring to clarify things, I attended the office of the former Attorney-General Jim Kennan, he informed me he was aware of the situation, but the Government had little control over the matter at present and was trying to rectify the cause of the problem.
I also raised my concerns with Liberal Attorney-General, Jan Wade, Later the Lay Observer Jan King. During 1993 was the last time that I engaged a member of the Victoria Legal profession, subsequently his performance confirmed the legal vendetta against myself continued.
I realised that there are many Legal firms in Victoria that act in their clients best interest in an open and honest way, I humbly apologise to any Legal firm or members of the Judicial system of Victorian that I may have offended over the last twenty years or so.
I trust the above will satisfy Court as to show cause and reason why I have no Legal representation in the current matter before the Courts.
Yours sincerely, Les McDonald
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