Queensland. 1999 ‘Carnes v Essenberg and Ors.’ QCA 339 (1999) and appeals. Brisbane: Queensland Court of Appeal. 23 August

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Carnes v Essenberg & Ors [1999] and appeals

[An appeal to the Queensland Court of Appeal against the decision of the District (on appeal) to rule in favour of the applicant (Essenberg) as the result of a conviction in the Magistrates Court for unlicensed possession of firearms. In this matter the applicant (Essenberg) argued that he should not have been summarily convicted of unlawful possession of firearms because Magna Carta and the Bill of Rights gave him the right to a trial by jury and a right to bear arms].

Chesterman (J) found the following in relation to this argument:

"The applications for leave to appeal against the orders of the District Court are totally without merit and can be disposed of briefly. Mr Essenberg has two points. He maintains that Magna Carta was and remains a pre-eminent source of legal obligation binding all Courts and governments, and that any subsequent developments of legal principle or enactments of Parliament, that have occurred in the last 800 years that might be thought to have diminished the force of Magna Carta, are invalid. By its terms he claimed a right to trial by jury. The proceedings brought against him for contravention of the Weapons Act were simple offences prosecuted before a Magistrate.

"Mr Essenberg has a second point. He claims that by the Bill of Rights 1688 he, as a citizen, has a right to bear arms suitable for his defence. He asserts that that right also remains untouched by 300 years of legal and political development. He argues that the Weapons Act is invalid because it takes away that right.

"Magna Carta formed part of the system of imperial laws which apply to the colonies of Eastern Australia on their settlement. So did the Bill of Rights. The historical importance and the influence on the constitutional development in English-speaking countries of those two enactments are profound. However, it is completely inaccurate to say that colonial parliaments, or indeed the Parliament of Westminster, could not alter, modify or even repeal the provisions of centuries old legislation."

Chesterman (J) further states:

"That is enough to dispose of the arguments that Magna Carta and the Bill of Rights are untouchable and unalterable sources of private rights or immunities. The Criminal Code and the Justices Act of Queensland have changed the manner in which prosecutions may be brought. The Weapons Act has abrogated the right of citizens to go armed in public."

[The applicant subsequently appealed this decision to the Court of Appeal (Qld) seeking special leave of the High Court of Australia to appeal: Essenberg v The Queen 854/1999 [2000] HCATrans 385 and 386 (22 June 2000). Essenberg again agitated his claims application of Magna Carta and the right to bear arms pursuant to the Bill of Rights. As Essenberg had two matters of appeal he was allowed 20 minutes to make his submission on matters to be considered. Following the conclusion of Essenberg's submission, Counsel for the respondent was advised "the Court need not hear you."]

McHugh (J) dismissed the application and summed it up thus:

"The applicant seeks special leave to appeal against an order of the Court of Appeal of Queensland refusing leave to appeal against an order of the District Court dismissing his appeals against convictions under the Weapons Act (Qld). The applicant contends that Magna Carta gave him the right to trial by jury in respect of these offences and that the requirements imposed by the Weapons Act to have a licence are invalid, being contrary to the Bill of Rights of 1688.

"In the Court of Appeal, Mr Justice Chesterman said that the applications for leave to appeal to that court were totally without merit. Legally and constitutionally, that is so.

"Magna Carta and the Bill of Rights are not documents binding on Australian legislatures in the way that the Constitution is binding on them. Any legislature acting within the powers allotted to it by the Constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or, for that matter, the United Kingdom. Nor do they limit the powers of the legislatures of Australia or the United Kingdom. That being so, an appeal would have no prospects of success. For that reason, special leave to appeal is refused."

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