The Australian Currency Argument

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Backo
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The Australian Currency Argument

Postby Backo » Mon Jul 29, 2013 7:02 am

There has been a theme in the Australian self-represented litigant (“SLR”) sphere for some time that the Australian currency as it stands is unconstitutional. The argument continues to be advanced to this day by SLR’s.

A quick perusal of these boards would show that such a theme is common to all jurisdictions. The Australian argument seems to have some idiosyncratic qualities that I believe merit a judicial response. Unfortunately, I have never seen the flaws in the argument properly debunked in a reported judgment.

The argument appears to have its genesis with Alan Skyring, possibly the most famous and persistent self-represented litigant in the Queensland state jurisdiction, if not nationally. Mr Skyring did not feel that he was able to pay tax with Australian currency and progressed appeals on this point to the High Court. He failed in all cases. He continued to agitate the argument in both state and federal courts for some time until both declared him a vexatious litigant. He is now only able to bring actions with the leave of the Court (he recently sought leave and failed).

I have noticed a number of other self-represented litigants advancing the same arguments and the hand of Skyring has been judicially detected in some of these matters (Mowe has alluded to them himself in another post). Skyring’s argument was what attracted me to the “all laws are invalid and I don’t have obey them” arguments in the first place and what eventually drew me to these boards.

As mentioned above, from reading the reported decisions, whilst the judges have repeatedly rejected the argument, their reasons are not particularly revealing. Skyring himself has complained that the issue has not been judicially explained. It is the one point on which I have some sympathy for him. I propose to set out the legislation and the argument as I understand it and explain why I think it fails. That it fails is in no doubt but perhaps an SLR can be discouraged from advancing this argument if they happen to come across this post.

The first reported decision I can find on the argument is Re Skyring’s Application (No. 2) (1985) 59 ALJR 561. Unfortunately, the decision is not available online so I can’t link. I have a copy of the report though. Justice Deane sets out the relevant provisions upon which Skyring relied and says:

I have come to the clear conclusion that there is no substance in the argument that there is a constitution bar against the issue by the Commonwealth of paper money as legal tender. Nor in my view would there be any substance in an argument that the provisions of s 36(1) of the Reserve Bank Act 1959 are invalidated or overruled by the provisions of the Currency Act.


This is the full extent of the discussion on why the argument is wrong in that report. I have found numerous instances of other federal and state judges referring to Justice Deane’s decision as authority, which it undoubtedly is, but in my view, that does not assist the SLR in understanding why it is wrong. The argument has been advanced to avoid payment of taxes, mortgages, attempts to overturn federal and state elections and deny the ability of successful litigants to obtain costs.

By background, Australia is a federal system established under the Australian Constitution. The Federal powers are set out in the Constitution. The States powers are plenary, except where limited by the Federal Constitution. The sections of the constitution applicable to this argument are as follows:



51. Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xii) currency, coinage, and legal tender;
(xiii) banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money;


109. Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.


115. States not to coin money
A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.



Pursuant to the powers under the Constitution, the federal parliament has enacted the Currency Act 1965 which relevantly provides:

SECT 8 Monetary unit and denominations of money
(1) The monetary unit, or unit of currency, of Australia is the dollar.

SECT 9 Transactions to be in Australian currency
(1) Subject to this section, every sale, every bill of exchange or promissory note, every security for money, and every other contract, agreement, deed, instrument, transaction, dealing, matter or thing relating to money, or involving the payment of, or a liability to pay, money, that is made, executed, entered into or done, shall, unless it is made, executed, entered into or done according to the currency of some country other than Australia, be made, executed, entered into or done according to the currency of Australia provided for by this Act.

SECT 11 Payments to be made in currency under this Act
(1) Every payment that is made shall, unless it is made according to the currency of some country other than Australia, be made according to the currency of Australia provided for by this Act.

SECT 16 Legal tender
(1) A tender of payment of money is a legal tender if it is made in coins that are made and issued under this Act and are of current weight:
(a) in the case of coins of the denomination of Five cents, Ten cents, Twenty cents or Fifty cents or coins of 2 or more of those denominations--for payment of an amount not exceeding $5 but for no greater amount;
(b) in the case of coins of the denomination of One cent or Two cents or coins of both of those denominations--for payment of an amount not exceeding 20 cents but for no greater amount;
(c) in the case of coins of a denomination greater than Fifty cents but less than Ten dollars--for payment of an amount not exceeding 10 times the face value of a coin of the denomination concerned but for no greater amount;
(d) in the case of coins of the denomination of Ten dollars--for payment of an amount not exceeding $100 but for no greater amount; and
(e) in the case of coins of another denomination--for payment of any amount.



The parliament has also enacted the Reserve Bank Act 1959, which relevantly provides:

SECT 34 Issue, re-issue and cancellation of notes
(1) Subject to this Act, the Bank may:
(a) issue Australian notes;

SECT 36 Notes to be legal tender
(1) Australian notes are a legal tender throughout Australia.


The crux of the currency argument goes like this

1. Section 115 of the Constitution prohibits the States from making “anything but gold and silver coin a legal tender in payment of debts.”

2. Therefore, the States cannot accept anything but gold or silver money to pay debts (such as property rates or court fines, for example).

3. The Currency Act provides that all transactions are to be in Australian currency “as provided for under this Act.” (s 9)

4. The Currency Act only legislates the existence of coinage up to 50 cents but does have some provision for larger amounts. At any rate legal tender is, at best, $100 under the Currency Act.(s16)

5. Therefore any debt above $100 cannot be paid in legal tender as it must be paid in Australian currency under the Currency Act, the upper limit of which is restricted by section 16.

6. The creation of paper money or Australian Notes under the Reserve Bank Act is invalid because it is not a transaction under the Currency Act section 9.


At face value, this argument would appear to be attractive, particularly to an SLR.


The flaws in this argument are as follows:

1. The Federal government has explicit power in section 51 to legislate with respect to currency, coinage, legal tender and paper notes.

2. Section 51 is a concurrent power provision which means that a States can also legislate on any topic in section 51. However, in this case section 115 prohibits concurrent legislation on this topic. Section 109 would also operate to strike the State law down for inconsistency anyway. The clear intention is that the Feds look after what constitutes currency.

3. The Currency Act sets the Australian currency as the Australian dollar.

4. The States do not make something other than gold or silver legal tender merely by setting penalties or levies in Australian currency. If you are fined or levied under a State law, such fine or levy is in Australian currency, which is the Australian dollar. This seems to cause the SLR a significant conceptual obstacle. If the States made fines payable in platinum or pesos, there might be a problem

5. The Currency Act says that all transactions must be in Australian currency as provided for in that Act. The proponents of the argument are mixing up “currency” with “legal tender”. They are reading that section as saying that “all transactions must be in legal tender as provided for under this Act.” If that were correct then the maximum legal tender under the Currency Act would be $100. However, the section only requires transactions to be in Australian dollars.

6. The Reserve Bank Act provides for the creation of paper money and such notes can be used to pay a debt of any amount. It also creates another definition of legal tender. It does not contravene section 16 of the Currency Act restriction because the transactions are still in the currency set under the Currency Act, namely Australian dollars. This is apparently another significant conceptual obstacle.

7. There is no obstacle however to the parliament creating separate definitions of legal tender under two different Acts, as long as there is no conflict. Even if there was, the High Court is there to resolve the conflict.


If anyone is interested in cases, search “Skyring”, “Cusack” or “Clampett” on http://www.austlii.edu.au. You will fill your boots. Be warned, Austlii isn’t as friendly as Canlii, you will have to filter out some rubbish. I can provide links if desired.

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notorial dissent
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Re: The Australian Currency Argument

Postby notorial dissent » Mon Jul 29, 2013 9:29 am

From what I an see from a cursory read of the information, the Australian act(s) pretty much follow the American ones, although I don't know that we get as picky about paying by coin that we actually spell out how much you can actually pay in coin. I think that is pretty much left up to the discretion of the receiver as to what they will or won't accept.

It sounds like your SLR's are using pretty much the same arguments I have heard in cases here, all of which are nonsense. Since both coins and paper currency are considered "legal tender" by law, the can't pay over $100 falls. The constitutional rule is that the states can't make anything but gold and silver "legal tender", but the federal constitution supersedes that and says that currency is and Australian coins, which are not gold or silver are also "legal tender".

I personally think that their claims all fail for the same reasons that our local ones do, they are intentionally misreading the statutes, and not reading them in order of precedence.

The only reason they are having a problem is that they want to have one, and no amount of explaining reality to them will change their reliance on this particular excuse, any more than it ever has here. I'm surprised they aren't complaining that your currency isn't valid because it isn't backed by gold or silver.

The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: The Australian Currency Argument

Postby Hilfskreuzer Möwe » Mon Jul 29, 2013 4:44 pm

Banko, thank you for that simply excellent explanation of the Skyring currency argument. You are very correct; I have seen variations on that scheme in a bunch of Australian cases that I have identified in the Australian jurisprudence. I could never put my finger on exactly what was going on, and the couple times I started to explore the Skyring jurisprudence … well, I wimped out. He has been a busy fellow!

While we’re discussing uniquely Australian spurious legal arguments, there’s one which seems to come up repeatedly in Freemanish litigation and I’d be very pleased if you could elaborate on its underlying (il)logic. I’ll first identify a few examples:

HEDLEY -v- SPIVEY [2012] WASCA 116 (http://www.austlii.edu.au/au/cases/wa/W ... 2/116.html) at paras. 5-6:

5 The appellant appealed against his conviction in the Magistrates Court to a single judge of the Supreme Court under pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). His grounds of appeal were that the magistrate was wrong in law and in fact:

    1. When he refused to sit under ch III of the Commonwealth of Australia Constitution 1901;

    2. When he failed to swear his oath of allegiance to the Crown in accordance with the third schedule of the Commonwealth of Australia Constitution Act 1901; and

    3. When he refused to state where in the Commonwealth of Australia Constitution 1901 his authority to sit in the court comes from without having sworn an oath of allegiance to the Crown.

6 It is difficult to provide a coherent summary of the appellant's contentions. A few excerpts from a document filed by the appellant in the single judge appeal entitled 'Presentation for Scott Hedley in Summation' (the summation) conveys something of their flavour:

    1. [T]he State Government of Western Australia is a company with the ABN 66 012 878 629,

    2. [ b ]oth the State Government of Western Australia and the Attorney Generals Office of Western Australia are subsidiary companies of the Commonwealth of Australia which is registered as a corporation with the US Securities and Exchanges Commission number 00 00 80 51 57,

    3. [T]here are no courts in Australia at this time that sit under and comply with Chapter III of the Constitution of Australia except the High Court of Australia,
    4. [N]o decision of any court in Australia is valid because there is no separation of powers between the governments and the courts,

    5. [N]o court in Australia can make rules of court and apply them with any force to stop the Sovereign people exercising their rights or will as would grant legislative powers to the courts contrary to s 71 of the Constitution of Australia ...

    ...

    1. [Officers] of the courts, Judges and Lawyers swear an oath to the State of Western Australia and the Law Society, BUT (not the constitutionally valid oath to her Majesty Queen Elizabeth II her heirs and successors),

    2. [ i ]n 2003 the Lion and Unicorn Royal Seal (the Royal Identifier) was replaced with the State of Western Australia Kangaroo's Emblem,

    3. [ b ]ecause the oath of allegiance was repealed from the Supreme Court Act of Western Australia no court including the District Court and the Magistrates Court meet the requirements of Chapter III of the Constitution of Australia ...


In the lower court appeal (HEDLEY -v- SPIVEY [2011] WASC 325 (http://www.austlii.edu.au/au/cases/wa/W ... 1/325.html) at para. 5 Hedley identifies a key event in 2004:

As in 2004 Jim McGinty changed the name, removed the crown, which you can't - under the Styles or Titles Act (indistinct) - It's felony, treason. So the government now is not the government, sir. The Attorney General is an ABN holder and a company


Another examples is GLEW -v- THE GOVERNOR OF WESTERN AUSTRALIA [2009] WASC 14 (http://www.austlii.edu.au/au/cases/wa/WASC/2009/14.html)

It seemed to me that what Glew, Hedley and others have been arguing is that a change in that way Australian (or just Western Australian?) courts refer to state authorities and name cases ‘breaks the chain of authority’ running to the Crown, meaning those courts and their decisions are unauthorized.

Am I on the mark here?

While preparing this post and ‘Googling away’, I also located this document

which appears to detail that constitutional argument and its basis. [The screwy way I posted the link is because of how the Quatloos board attempts to massage and shorten long hyperlinks, but if you paste both bits together you'll get to the document in question.]

What a surprise, it turns out the chap who made the submission:

Tadeusz Edmund Krysiak

A Subject of her Majesty Queen Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories (including Australia) Queen of the Commonwealth, Defender of the Faith



Sojourning in Her Royal Majesty’s Crown territory of Western Australia


has a substantial ‘eccentric’ litigation history:

What I find wonderfully ironic is that in Canada we have our OPCA litigants frantically trying to break their links to Queen Elizabeth II, so that they can be free of the state, and in Australia it seems that your unusual litigants are busily trying to re-connect with the monarch to obtain truth, fairness, and justices. And in the process, explode the state.

We just can’t win, can we?

SMS Möwe

P.S. I am simply delighted to see we have on Quatloos a person with familiarity with the Australian legal apparatus and its more colourful inhabitants. I try to cover the subject but am very well aware of my shortcomings on material from a related but still quite different jurisdiction. Looking forward to a detailed review on Malcolm McClure and UPMART, hint hint!
That’s you and your crew, Mr. Hilfskreuzer. You’re just like a vampire, you must feel quite good about while the blood is dripping down from your lips onto the page or the typing, uhm keyboard there... [http://www.youtube.com/watch?v=YNMoUnUiDqg at 11:25]

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Re: The Australian Currency Argument

Postby grixit » Mon Jul 29, 2013 10:56 pm

Congrats on your title. And unlike your namesake, you will not have to worry about mines or torpedos. Watch out for those "depth charges", though, they have no impact but do raise a stink.
I voted for Hillary, and i didn't even get a stupid tshirt!

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Backo
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Re: The Australian Currency Argument

Postby Backo » Mon Jul 29, 2013 11:59 pm

Mowe, congrats on the title. Even from my short time reading the boards, it appears well deserved.

From the excerpts you have posted, Hedley has a fundamental misunderstanding of the Federal structure of the Australian government. He, like many others, is also either innocently or deliberately (more likely the latter) misunderstanding the concept and effect of the ABN which is a registration number under our Goods and Services Tax Act (our VAT). Finally, like a great many other disaffected SLR's, he is going back through the structural state and federal constitutional Acts looking for irregularities and holding them up as examples of the illegality of the State. I am sure that you are all familiar with these techniques.

I will read the Hedley cases and reply in detail as to why these arguments are false, but before I do, it would seem somewhat off-topic to the thread. Should this portion of the thread be broken off to a new topic?

I have only briefly come across UPMART before in the context of a number plates case. I'm not sure what they are up to, but I'll see what I can see.

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Re: The Australian Currency Argument

Postby Backo » Thu Aug 01, 2013 3:49 am

[In a serendipitous piece of timing, Skyring has appealed against his vexatious litigant status or alternatively leave to bring a judicial review application in respect of a magistrate's decision to set down for a trial a matter dealing with a speeding ticket worth about $150 of (presumably valueless) australian currency. Naturally, he was hosed out.

http://archive.sclqld.org.au/qjudgment/2013/QSC13-197.pdf

He is persisting in his view that the currency argument has never been judicially determined. As per my opening post that first occurred in 1985 so I feel justified in using my first smilie :beatinghorse:


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