The process that I've embarked on almost two years ago came as the result of various people contacting me and saying Senator Harris we've complied with what we thought were the laws been given permits, licenses or what ever we needed to carry out the management of our properties and then three or four years later find ourselves in court being charged with various
things, breaching the vegetation act, or the water act, or the integrated planning act.

Now I began to make some investigations and over a period of two years, after having some wonderful help by a lot of very, very knowledgeable people, not only Queensland people, but people all around Australia became very aware that ever so gradually our property rights have been diminished a little bit by a little bit so it voiced the statement that was made, the inevitability of gradualism.

And to explain that in plain Aussie it means that when things are changed so very, very slowly and in only very small increments people are not even aware that things are being changed.

When I started to have a real good look at where our original property rights came from I was trying to explain what I thought was the origin to a group of legal people and they could not grasp the concept of what I was saying.
So, in sheer frustration I sat down after talking to them for a couple of hours and drew a very simple diagram, so this diagram sets out the actual history of where our land title originates from.
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The power that the sovereign exercises doesn't originate with the sovereign, either him or herself.
It actually comes from the Great Seal of England, Wales, Scotland and Northern Ireland.
So that the sovereign is actually exercising the power of that Great Seal.
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When a land title is created by what we determine a Royal Prerogative, so that means that the sovereign in his or her own right granting to each one of us here in Australia a title to a parcel of land, and I'm using the terminology parcel deliberately, that word relates back to the Letters Patent that the sovereign actually gives to the Governor.
The Letters Patent contain the instructions for either the Governor General of Australia or in this case the Governor of Queensland to carry out the duty of representing Her Majesty, Queen Elizabeth.
We need to go back to the original Letters Patent that were granted to Governor Philip when the colony was set up at Botany Bay, because in those Letters Patent it sets out that Governor Philip could only transfer the ownership from the Crown to one of those original settlers after nominating a parcel of land and it had to be surveyed, and then on top of that Governor Philip had to give it a Lot number, so the parcel of land was identified by a Lot.

And if you look at any of our deeds today you will still find that all of the reference to our title contains a reference to a Lot number.
When we move forward in time to when Queensland was separated from New South Wales the first governor of Queensland in 1859 was Sir George Ferguson Bowen.

When we look at Sir George Ferguson Bowen's Letters Patent we find very, very clear instructions as to how he was to allocate unallocated or wasteland that is owned by the Crown in the colony at that point of time in Queensland.

The instructions are very, very clear telling Sir George Ferguson Bowen that he must create a register and having established the register he's instructed to appoint an officer or officers to make entries in the register.
And the Letters Patent then carried these very profound words and this can only be used fore and against us.
So we have the sovereign prompting Sir George Ferguson Bowen that when he has established the register and the officers make the entries in that register of the Lots and that also carried a Volume and Folio number, that title deed is a document that we can actually use in court as our defence in any matter.

What we've gradually seen, particularly in Queensland and also I believe in New South Wales and other states is a gradual erosion of those original rights that are directly granted from the sovereign.
So if you look at the documented diagram on the right hand side we have the sovereign exercising the Royal Prerogative to grant the actual title itself.

The Letters Patent also carried the instructions that the Governor is to also seal each and every title that is granted with the seal of Queensland.

Now again, the seal of Queensland derives it's head of power from the Great Seal of the United Kingdom.
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When I drew up the diagram it became very, very clear that the granting of the land title was totally separate from the function of the state.
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Yes the state has the power to create legislation in relation to land and what property rights you have in relation to the land, but it cannot override any of the rights that the sovereign has
granted us in relation to our title.
If we look at the left hand side of the diagram (above) we see that the sovereign exercising the Great Seal of the United Kingdom appoints the Governor General of A u s t r a l i a.
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The Governor General, when the states nominate the person installs the Governor of the state.
There are several functions that the governor must carry out, the two main ones are sealing the deed with the seal of Queensland.
But also the governor, what we refer to as prorogue, or in plain english, dismisses the parliament, then swears in the new parliament and the parliament then creates the legislation.
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When looking down the numbered steps we see that the legislation that's created comes in at level 6 on what we call the head of power.

Very, very eminent people in the past have spoken about the heads of power and the simplest way to explain it is to use the example of the river in the majority of cases the river will have its headwaters in a hill or a mountain and will start out as a small spring, as it flows down through the countryside we have subsequent streams joining in, sometimes rivers joining with rivers, but one thing is very, very clear that no matter where that river is it can never ever rise higher than the little spring where it had its original source, and the power to make legislation
is similar.
And because the legislation sits at level six it cannot override a Royal Prerogative that actually sits at a head of power six.

In Queensland we have the Land Act and in New South Wales, Victoria and South Australia there is similar legislation and in that legislation it has a definition of land, and when it refers to the land it includes the surface of the land, the area above the surface, that's referring to the air,
and it also refers to the area below the surface, that's talking about the volume of the soil.
So when we receive a title to a parcel of land we're also receiving the actual ownership of the air above it, everything that's attached to it or growing on the surface and everything contained within the volume of that soil with the exception of the minerals, coal and petroleum that the Crown reserves back to itself.

The Property Law Act, and I'll use the Queensland Act of 1974 then sets out how our freehold land is created and in section 19 it sets out that a freehold estate can be created in the following manner:

a. it says fee simple;
b. which is not used today, talks about life or live.

**

It then goes on to set out very clearly in section 20 that a person who owns a parcel of land that has fee simple is assured that they hold that land without benefit for the Crown... it's clearly saying that once the Crown agrees to create the title then that title is registered, written into the register, from that point there is no benefit for the Crown other than the reservation of minerals
etc. below the ground.

Section 21 then sets out very, very clearly that a person who holds a title of fee simple is assured that they hold that title without license or fine.

So a lot of the legislation that our state governments create conflicts with our rights under the Property Law Act.
They go on to say in section 29 of the Queensland Property Law Act 1974 that a person holding a parcel of land in fee simple is assured that all of the rights of the 'disponor' and that terminology the disponor is referring to the Crown, so all the rights of the disponor are transferred to the disponee which is the purchaser.
That is binding on the sovereign, heirs and successors.

So when we look at that in total the Property Law Act tells us that our freehold land is created as fee simple, it's created without benefit to the Crown, other than the fore mentioned reservations, that as the owners of that property we hold that property without license or fine and we're also assured of the rights of the previous owner are transferred to the new owner.

I know at times we've all complained about paying stamp duty, but in actuality there is another function that as well as paying a fee for the state to transfer that title, when we look at it in the sense of a commercial transaction the state is actually accepting a fee to guarantee transferring all of the rights of the previous owner to the new owner.

So that's the legal argument, that as a benefit of Queensland that I'm going to take into the High Court over the next couple of weeks, is that we have a right that is granted to us directly by the sovereign that we hold that land without benefit for the Crown and without license or fine.

The High Court has in the past always ruled that the rights of the property owner prevail.

**
Abridged from the volume Land Law Emphasis, definitions and sub headings added by The Strategy.
At page 65:

[435] The system of free tenures, with its services and incidents, was mainly embedded in the law by the beginning of the 13th century.

It's subsequent history is one of decay, distorted and prolonged by the conflict of competing interests.
We will make no attempt to follow that history, except to illustrate its effects on the main body of the land law.

[436] We begin with the statute Quia Emptores 1290.
Given a chain of tenures such as then existed, alienation could take either of two forms.
In one the grantee could be made the tenant of the grantor, thus by the process of subinfeudation adding another rung to the feudal ladder.

In the other, the grantee could take the place of the grantor in the feudal ladder: that is, the grantor would drop out altogether, the grantee being substituted as tenant of the original overlord. This latter method (substitution) ran counter to the personal element of feudalism; but by now the financial  aspects of the tenurial incidents were becoming more important than the fidelity of the tenant.

Quia Emptores prohibited all future alienation by subinfeudation. The statute empowered all free tenants to alienate the whole or part of their land by substitution, without the lord's consent, the new tenant to hold by the same services as the old.
If part only of the land was alienated by substitution, then the feudal services were to be apportioned.

[437] There were several important limitations on the statute's operation. First, it applied only to grants in fee simple, so that there was nothing to prevent a tenant in fee simple from granting a life estate or a fee tail to another to hold of him as lord. Secondly, the statute did not bind the Crown, which meant that it conferred no right of free alienation upon tenants in chief. This latter limitation was removed in 1327 by a statute which gave tenants in chief the right of free alienation.

[438] As a result of Quia Emptores, ever since 1290 it has been legally impossible to convey a fee simple interest in such a way as to create tenure between grantor and grantee. The grantee must take the place of the grantor, so that the grantee holds the land of the grantor's lord.
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The inevitable result, when combine with the operation of the doctrine of escheat, was to simplify the tenures upon which land was held. Every escheat brought the land nearer to the King, since it reduced the number of intervening mesne tenants; and as no new subinfeudation could occur, more and more land came to be held by tenants in chief directly of the King.
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(Editor's note: Quia Emptores Lat --- because the purchasers.
The first words of the Statute Quia Emptores 1290.
Escheat Fr --- to expire.
In feudal times, the reversion of real property to either the lord of the fee or the Crown where the
owner died intestate without heirs or forfeiture of property upon a gross breach of the feudal bond. End TS)

[439] The simplification of tenures was further assisted by the gradual disappearance of most of the tenurial services.
Knight service, due directly to the King, generally was commuted (at the King's discretion) as
early as the 12th century for a money payment known as 'scutage' (shield money).

From the beginning, scutage was considered to be a form of taxation under the control of Parliament, and by the end of the Middle Ages its original connection with tenure had been forgotten.
As to services due from socage tenants, those which consisted of labor services were quickly affected by the economic changes of the 14th century.
Those changes eventually led to the consolidation of holdings and the enclosure of common fields.
The large landholders preferred to rely on hired labor rather than tenurial obligations.

By the 16th century these obligations had generally been commuted for a fixed money
rent. Then, in the inflationary conditions of the 16th and 17th centuries, these rents
became of little value ---  so much so that they were not worth the trouble of collecting and were allowed to sink into oblivion.

As a result, there was little incentive to preserve claims to the mesne lordship of land held by socage tenure. Even the possibility of escheat was diminished by the Statute of Wills 1540, which permitted land to be devised by will.

(Editor's note: Mesne estate --- In the
feudal system, an estate which is not held directly from the king but from a tenant in capite or mesne lord, and which is itself subinfeudated in part or whole to another.

Mesne lord --- A lord in the feudal system who had vassals who held land from him, but who was himself the vassal of a higher lord. A mesne lord did not hold land
directly of the king. End TS)

Socage tenants, too, tended to become tenants in chief, a process assisted by the legal rule that in the absence of evidence to the contrary a tenant is deemed to hold directly of the King.

[440] In the case of the military tenures, however, a similar development was considerably
delayed by the continuing value of the incidents of wardship and marriage.

These were not so affected by the fall in the value of money, because they gave control over the actual land or its equivalent on the marriage market.
Nonetheless, here too the position eventually changed. The mesne lord not only gained, but in turn suffered, by the burden of these incidents.

Many seigniories had escheated to the Crown; and by the end of the Middle Ages the King was
the only person really concerned to preserve tenure by knight service and its incidents.

The King was always lord and never tenant.

The incidents were finally abolished after the Parliamentary interregnum of the 17th century, when the restored King was compensated for their loss by the grant of an hereditary excise on beer, cider and spirits.

[441] The end of the strictly feudal period of English land law came in 1660, when Tenures Abolition Act 1660 abolished most of the remaining incidents of tenure.
The Act converted all tenures into free and common socage, and prohibited other types of tenure being created in future.
It also abolished all incidents of value, except forfeiture and escheat.
Socage tenure was not affected, except by the abolition of incidents (of which aids had been the only one in any way burdensome).
At page 67 Tenure in New South Wales

[442] At the date when English land law was introduced into New South Wales, the feudal organisation of society in England had long since passed into history.

Australian society was never organised along feudal lines. From the outset, the colonists land titles originated in express documentary grant from the Crown.

And since there were no manors in New South Wales, copy hold tenure was also unknown.

[443] Nevertheless, ever since the birth of the colony the ghost of feudalism has been present.
It was early established that land in New South Wales is held of the Crown in accordance with the feudal concept of tenure.

In the landmark case of Attorney General v Brown (1847) 2 SCR App 30) an attempt was made to exorcise the ghost by contending that the Crown had no property in the unalienated waste lands of the colony, nor any right to grant them unless the legislature had expressly conferred that right.
But the argument failed.
The Full Supreme Court of New South Wales held that the feudal system of land tenure, and with it the principle that land is held 'of the Crown', was part of the law of New South Wales.

Even today, a person who 'owns' land is properly described as 'holding' the land 'of the Crown in the right of the State of New South Wales'.

[444] Quia Emptores 1290 and the Tenures Abolition Act 1660 were part of the English law received into New South Wales.
It follows that subinfeudation existed in this country.
The two statutes were formally repealed, in so far as they applied to New South Wales, by the Imperial Acts Application Act 1969 (NSW).

However, their substance has been preserved by the same Act. Section 36 provides:

Land held of the Crown in fee simple may be assured in fee simple without license and without fine and the person taking under the assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect.

Section 37 provides:
All tenures created by the Crown upon any grant in fee simple made after the commencement of this Act shall be taken to be in free and common socage without any incident of tenure for the benefit of the Crown.

[445] In New South Wales, only two incidents of socage tenure have been of any importance.
The first was a rental payment in the form of a quit rent reserved to the Crown in early Crown grants. It has long ceased to exist.

In 1846, all lands on which 20 years quit rent had been paid were freed from further charge; where over 20 years quit rent had been paid, the excess was refunded; and quit rents not extinguished could be redeemed by paying a lump sum. All remaining quit rents were released in 1964.

[446] The second incident was escheat, by which land would revert to the Crown if the tenancy came to an end.
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(Editor's note: Of interest is the following footnote:
But cf Taylor, 'The Enlargement of Leaseholds to Freeholds' (1958) 22 Conv (NS) 101 at 109, suggesting that the grant of a long term lease which is later enlarged into a fee simple under S. 134 of the Conveyancing Act 1919 (NSW) --- as to which, see (1529) and (1708) --- effects a subinfeudation, since Quia Emptores only applied where land was sold to be holden in fee simple', and the grant of a lease which is later enlarged is not a sale of fee simple.

A variant of subinfeudation may still exist in New South Wales, in respect of land held by certain colleges of the University of Sydney.

Crown grant dated 18 January, 1855 (registered Ser 198 Page 72) granted land to the University of Sydney upon trust to subgrant part to Colleges to be established within the University.

Deeds of sub grant were later executed by the University in favour of certain Colleges, by the terms of which the land sub granted was to revest in the University should the Colleges fail to meet stipulated conditions; see, eg. deeds registered No 265 Book 137 and No 960 Book 1380.

(I am indebted to the Hon. Mr Justice Young of the New South Wales Supreme Court for bringing these documents to my attention.)

Mr Davis has been informed that he will have another mention date, the third mention date, to be followed by a fourth mention date.

His refusal to pay land rates will never be heard in a court of law, because of 'fee simple' on property title, also the Uniform Commercial Code ruling - HCA/88
and the Federal Referendum 1988.

This is a victory for the movement, stand up and be counted, join the fight,
ring Kevin Thompson (02) 6685 1719.
Kevin W.D. Thompson
National Coordinator Reproduction of Document
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USER ID/DOC NO. CC104/49834
Local Court,
COHN STREET
EAST MAITLAND 2323.
Telephone no: 02 4931 6333
09/09/2004

Dear Sir/ Madam
Civil Claims File No: 5101/04
Plaintiff: PORT STEPHENS COUNCIL
Ref:
Defendant: ALAN DAVIS
Ref:

Justice Kirby said Australia's constitution included an escalator to the High Courts, giving any citizen the right to go straight to the High Court if they felt the Commonwealth had violated their constitutional rights.

This was a vital legal protection, yet Justice Kirby expected only one Australian in 100 knew they were entitled to it.

Keep your eye on the constitution ... because these are great protections, he said.

The protection of our liberties does not ultimately depend on parliaments or even courts.
It depends on the love of the people for liberty.
Guard your rights, Judge exhorts.
Report by David Wren, NEWS 7 June 2003.